Opinion
SC-379-18/CO
09-04-2018
Lourde DESIR, Plaintiff, v. Thomas GORDON, Defendants.
Plaintiff Lourde Desir hired Defendant Thomas Gordon to do some construction work on her rental property located at 2-4 Cataract St. in the City of Cohoes. A contract never quite materialized in the traditional fashion, but the agreement was reflected in a series of emails and an invoice and can be fairly summarized as follows: Gordon promised to remove the debris from the property, repair the roof and rehab the first-floor apartment so that it was in rentable condition. He further promised to have all work completed by July 31, 2018. In exchange, Desir agreed to pay Gordon $15,000 for this work.
The documentary evidence provided clarity concerning the formation and basic terms of the contract, however, the ensuing events were not so easily deciphered. The testimony, and there was lots of it, came in a non-linear style with each side repeatedly wandering off into extraneous side-roads and firing off ad hominem attacks. All this made it quite difficult to discern the precise timing of events. Nevertheless, after a careful sifting of the credible testimony, a timeline can be constructed.
On Monday July 9, Desir paid Gordon an $8,000 installment and he promptly began work that day. However, the parties had different expectations as to the order of the work. Gordon and his crew started the job by removing debris from the building. Desir expected the roof to be repaired first — a reasonable expectation given the negative effects that a leaky roof can cause to the interior of a building. The initial hint of friction surfaced Wednesday July 11, when Desir texted Gordon and asked why the old roof scaffolding had not yet been removed — the presence of the old scaffolding meant that the roof repairs had not yet begun.
There is a story behind the scaffolding. Desir met Gordon at Home Depot in late June 2018. She told Gordon of the trouble that she was having with a person that she had hired to repair her roof because the person was not a roofer by trade. Desir fired the non-professional roofer when she retained Gordon to perform the job. The non-professional roofer left his make shift scaffolding behind. However, the scaffolding belonged to a third party. Gordon agreed that he would take down the poorly constructed scaffolding and return it to the owner. Gordon then would rig his own scaffolding to assist his workers in the repair of the roof. Thus, failure to return the scaffolding meant that Gordon had not yet begun the process of repairing the roof.
On Thursday July 12, Desir texted Gordon and told him that she would visit him at the property on Friday the 13th and reminded him that her main concern was the roof. Much to her distress, when Desir arrived on the job site Friday, no work had been done on the roof. She told Gordon that she would be back on Monday to check on the progress.
On Saturday July 14, Gordon texted Desir that "his guys" were working on the roof. What he meant by this was that he had hoisted all the shingles onto the roof and that his roofer came and assessed the requirements of the job. Gordon testified that on Monday July the 16th, the heat index reached 115 degrees and that the conditions were unsafe to undertake roof repairs. He texted Desir not to come to the property because work had been cancelled due to the weather. But Desir came anyway and saw that still no repairs had been made to the roof — that was the last straw, she figured that she had been bamboozled.
Desir went immediately to the Cohoes Police Department. She told a detective that she had paid Gordon $8,000 to repair her roof, that no work had been done and that she suspected that she had been the victim of a con-artist. The Cohoes Police met with both parties on Wednesday July 18 to no avail. On that Wednesday, Desir texted Gordon that he was fired and that he could no longer come on her property. Ultimately, she filed a small claims action with the Clerk of the Cohoes City Court.
This is a contract case, or more precisely a breach of contract case. Thus, the question is, at least initially, which party breached the contract — Gordon by not repairing the roof immediately or Desir by discharging Gordon from the job.
It is hard to see where Gordon failed to keep his promises. None of the texts, emails or invoices make a representation other than that all work would be finished before July 31, 2018. Nothing in the documents says that the roof would be completed first. To the contrary, what can be gleaned from the documents and texts is that other items would be or should be done before the roof. The invoice notes that "gonna start 4 bedroom first [sic]" (exhibit 1). Similarly, on July 10, Desir emailed Gordon and indicated that the proper location of the second-floor bathroom was "[her] main worry" (exhibit 2). In her July 8 email to Gordon, Desir indicates that the "roof job will be completed as stated in your [July 6] email" (exhibit 6). Gordon's July 6 email lists the items he is to accomplish; the second job on the list states "roof will be finished" (id.). The first item enumerated in the email is the removal of all debris which, is exactly what Gordon did first (id.).
While Desir's expectations that the roof would be completed first was reasonable, that was her personal expectation and one not mutually shared by Gordon at the point where the contract was agreed upon. "The unspoken internal intent [of one party] has no binding effect on the other party. The essence of an agreement is mutual assent—a meeting of the minds as to the nature of the terms—and without it, no term of a contract is enforceable" Rensselaer Hous. Auth. v. Beverly , 59 Misc 3d 534, 540 (Rensselaer City Ct. 2018). Therefore, Gordon did not breach the contract by removing debris before starting the roof.
The issue now turns to whether Desir breached the contract by firing Gordon before July 31. Implicit in every contract is a covenant of good faith and fair dealing. The covenant is breached "where one party to a contract seeks to prevent its performance by the other" ( Michaan v. Gazebo Hort, Inc. , 117 AD3d 692, 693 [2d Dept. 2014] ). The terms of the contract provided that Gordon had until July 31 to complete the work on Desir's property. There was no proof that Gordon would not have finished all the work within the time provided by the contract. By firing him, Desir denied Gordon the opportunity to honor his end of the bargain. The conclusion is inescapable, Desir breached the contract.
Normally, the preceding analysis would have ended the case: Desir breached the contract, not Gordon — that was all the court was asked to decide and it has been decided. However, this case arises under the small claims statute where the Legislature has instructed the courts to do substantial justice ( Uniform City Court Act 1804 ). Thus, pursuant to that mandate, the court will consider if Desir may still collect damages even though she committed the wrong by breaching the contract.
The above paragraph may seem odd to non-lawyers. However, lawyers are drilled from the moment they enter a law school classroom to plead their case with alternative theories, even if the theories are inconsistent. That is, lawyers are taught how to simultaneously present two inconsistent positions to a court. For example, in a case like this one, a lawyer, without hesitation, would tell the court that the plaintiff did not breach the contract and also tell the court (in the alternative), that although the plaintiff breached the contract, the defendant still owes the plaintiff money because he was unjustly enriched by the installment payment. Thinking like this takes special training and most litigants in a small claims case have a singular theory and even the mention of an alternative only serves to undermine their main argument.
So, the court, to ensure substantial justice, is obligated to explore the alternative theory that Gordon was unjustly enriched by the initial payment of $8,000. The elements of an unjust enrichment claim are "(1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered" ( Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation and citations omitted] ). If Gordon did not do $8,000 worth of work, then he took too much from Desir. In other words, he cannot retain what he did not earn—it would be against equity. This is true, even though Desir committed a wrong against Gordon. Her wrong prevents her from getting back all of the $8,000 installment, but it does not entitle Gordon to a windfall.
In any event, Dersir could not collect all $8,000 because the jurisdictional limit of City Court is $5,000 (Uniformed City Court Act § 1807).
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To determine if Gordon received a windfall, the damages Gordon sustained because of Desir's fired him must be calculated. Contract damages are ordinarily based on the injured party's expectation interest and are intended to give him the benefit of his bargain by awarding her a sum of money that will put him, to the extent possible, in as good a position as he would have been in had the contract been performed ( Latham Land I, LLC v. TGI Friday's, Inc. , 96 AD3d 1327, 1331 [3d Dept. 2012] ). Thus, Gordon is entitled to be compensated for his cost plus the profit he could have earned if he was allowed to perform the job.
Plaintiff must prove that Gordon was unjustly enriched. However, all the evidence concerning cost is possessed by the defendant. In civil litigation this would present no obstacle because a plaintiff could deploy discovery devices to force a defendant to disclose his proof to her before trial. At last, there is no discovery in small claims cases. Thus, the court must bridge this deficit by tinkering with the burden of proof.
The court holds that while plaintiff bears the burden of persuasive on costs, defendant bears the burden of production. That means Gordon must come forward and produce the evidence of his costs. But any gaps in the evidence, or reasonable inferences to be drawn therefrom, will be resolved against Desir. This is consistent with general principles of contract law: "[I]t is well-established that the breaching [party] who has created the uncertainties as to damages, must bear the risk of these uncertainties" ( Bigelow v. RKO Radio Pictures , 327 U.S. 251, 264-65 [1946] ).
Turning to the evidence on costs, Gordon testified that he paid $4,000 for dumpsters (a fact which was verified by the Cohoes Police). Further, he testified that he employed 2-5 men. The court will take the average and find that Gordon employed 3.5 men. The evidence showed that Gordon and his crew worked a normal work week from Monday to Friday or 40 hours. In addition, the court will award 4 hours of work for the preparation of the roofing job on Saturday July 14 for a total of 44 hours of work. Thus, the number of labor hours spent on the job equates to 154 hours (3.5 men x 44 hours = 154 hours of labor). The rate for unskilled labor in this market is $10 per hour. Gordon's labor cost equates to $1,540 (154 hours x $10/hours = $1,540). Thus, Gordon's total cost (expenses + labor) was $5,540.
Finally, Gordon was deprived of the lost profit on his job due to Desir's breach. The court will award a 12.5% profit which amounts to $1,875 on the $15,000 contract. Therefore, the total economic damage suffered by Gordon due to Desir's breach was $7,415. Consequently, Gordon was unjustly enriched by $585 ($8,000 installment - $7,415 damages = $585). He owes this Desir this sum.
Therefore, it is ORDERED that Defendant Thomas Gordon pay Plaintiff Lourde Desir $585.00 plus $20.00 for the filing fee.
The foregoing constitutes the Decision and Order of the Court.