Carol Stratton and M. Lisa Atteberry v. McConnell Landscaping and Construction

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

CAROL STRA'ITON and
M. LISA ATTEBERRY,

Plaint:iffs,

v. C.A. No. CPU4-16-001376
MCCONNELL LANDSCAPE AND
CONSTRUCTION, LLC and BELAIR
ROAD SUPPLY OF DELA\X/ARE, LLC

\./\./\/\_/\_/\/\/\/\_/\_/\./\/

Defendants.
Submitted: August 31, 2017
Decided: November 7, 2017
Elwood T. Eveland, Jr., Esquire Richard E. Berl,jr., Esquire
The Eveland Law Firm Berl & Feinberg, LLP
715 N. King Street Suite 200 Dartmouth Business Center
Wilmington, DE 19801 34385 Carpenter’$ Way
Alfom@/for P/az'nlzj”.r Suite 3
Lewes, DE 19958
/lz‘fomej/for chendant;

DECISION AFTER TRIAL

SMALLS, C.J.

Plaintiffs, Carol Stratton and Lisa Atteberry (“Plaintiffs”) bring this action for damages
to their property sustained during the construction of a rear outdoor patio. Plaintiffs entered
into a contract with McConnell Landscape and Construction, LLC (“McConnell”) to build an
outdoor patio in the backyard of their vacation home. McConnell subcontracted with Belair
Road Supply of Delaware, LLC (“Belair”) (collectively, “Defendants”) to supply the bricks for
the patio. Plaintiffs allege that Defendants caused damage to their lawn and driveway during
the delivery of the bricks and instillation of the patio.

On August 31, 2017, the Court held trial on the matter The evidence consisted of
testimony from Plaintiff Carol Stratton, her neighbor Brian Grawehr, Michael McConnell and
Robert Basarab. The parties also submitted pictures as exhibits At the conclusion of trial,

the Court reserved decision. This is the Court’s decision after trial.

FACTUAL AND PROCEDURAL HISTORY

On May 11, 2016, Plaintiffs filed a complaint against Defendants indicating that
Plaintiffs entered into a contract with McConnell for the installation of a patio and McConnell
subcontracted with Belair to provide materials to be delivered to Plaintiff’s property. The
complaint alleges that Belair damaged Plaintiffs property by driving a heavy truck onto a newly
poured driveway during the delivery of the patio pavers. The complaint further alleges that
McConnell damaged Plaintiffs lawn during the construction of the patio by leaving planks
across the grass Plaintiffs seek judgment in the amount of $9,927.50, plus interest, attorney’s

fees, costs, and punitive damages

On August 17, 2016, Defendants filed a joint Answer denying the allegations
Defendants concede that McConnell contracted with Belair to provide and deliver materials,
but deny that Belair was an agent or employee of McConnell. Defendants also raise a number

of affirmative defenses

PARTIES’ CONTENTIONS

Plaintiffs allege when Defendant Belair delivered pavers to their property, the driver
negligently drove and parked the delivery truck onto their newly paved driveway, causing
damage Plaintiff had the driveway repaired by a separate company. Plaintiff further alleges
Defendant McConnell damaged the lawn of Plaintiff’ s property by leaving planks on the grass
approximately four to five days a week and only removing them off the grass during the
weekend As a result, approximately 800 square feet of sod required to be replaced.

Defendant McConnell concedes that some damage to the lawn occurred as a result of
installing the patio in the back of Plaintiff’s yard. Upon completion of the patio, McConnell
reseeded the affected areas twice in the month of August. Defendant Belair alleges that when
the pavers were delivered, he parked in the most logical place being the Plaintiff’ s driveway
since parking in the yard would have most likely caused damage to the lawn. Defendant Belair
contends that the driveway damage was only a small “scuff” and Plaintiff did not inform

Defendant’s not to use the driveway.

DISCUSSION

As trier of fact, the Court is to assess the credibility of the witnesses and, where there
is a conflict in the testimony, to reconcile these conflicts, “if reasonably possible[,] so as to
make one harmonious story.”l In doing so, the Court takes into consideration the demeanor
of the witnesses, their apparent fairness in giving their testimony, their opportunities in hearing
and knowing the facts about which they testified, and any bias or interest they may have
concerning the nature of the case.2

In civil matters, “a plaintiff has the burden of proving the elements of their case by a
preponderance of the evidence.3 Proof by a preponderance of the evidence means proof that
something is more likely than not.”4 “The side on which the greater weight of the evidence is
found is the side on which the preponderance of the evidence exists.”5

During trial, the contract between Plaintiff and McConnell was admitted as PlaintifF s
Exhibit 1, which described the work to be completed Most of the work was completed to
satisfaction and Plaintiff testified that some of the work was changed or excluded during the
instillation of the patio. The contract does not specify where the installers would park or how
they would travel through the yard in order to complete the backyard patio. Defendant
McConnell testified that in order to drive over the grass with the construction equipment from
the street to the backyard patio, he laid down wooden planks so he would not damage the

lawn. McConnell testified that he laid the planks down before he began working and left them

1 ]\’alYGrange Muf. InJ. Co. 1). Ne/mn F. Daw`r, ]r., ef. a/., 2000 \Y/L 33275030, at *4 CDel. Com. Pl. Feb. 9, 2000).
2 fee flal€ z). We.t@fa//, 2008 WL 2855030, at *3 (Del. Com. Pl. Apr. 22, 2008).

l Nar@)an v. timber/and G/oba/ Ho/dingi Im‘., 2016 WL 3682617, at *8 @el. Ch. jul. 5, 2016) (internal citations
omitted).

4 Id.

5 Tmmbo z). LS`T Inver)‘menl.r, 2015 WL 8200712, at *3 (Del. Com. Pl. Dec. 7, 2015) (internal citations omitted).

3

down during the week he worked at the Plaintiff’ s house. He further testified that he picked
up the planks when he left for the weekend

McConnell testified that he had conversations with Plaintiffs about the lawn being
damaged by the planks so he re-sodded the grass twice during the month of August. He
further acknowledged that he was aware the grass did not grow back thoroughly Photographs
of the damaged lawn was admitted into evidence as Plaintiff’s Exhibit 3 and 3(a). The (2) two
pictures show brown areas in the grass of Plaintist back yard

Plaintiff’s neighbor Brian Grawehr also testified He was hired to water the Plaintiff’s
yard while they are away at their permanent residence in New Castle County. Grawehr testified
that he wateted the Plaintist yard approximately five (5) times per week. I~Ie testified he saw
the planks down on the grass that McConnell used to transport equipment through the
backyard and that the planks were left down overnight during the week. Grawehr further
testified he observed the damage on the driveway and identified such in the photos admitted
as Plaintiff’ s Exhibit 2, which consist of (6) six photos portraying damage to the driveway.

Defendant McConnell testified that the planks covered most of the side yard and he
kept them down on the ground for three (3) days continuously and then took them up for
three (3) days. McConnell also testified due to damaging the grass, he bought the best seed
on the market and re-sodded the Plaintiffs yard twice in the weeks after the instillation of the
patio. McConnell further testified that he stored his equipment on the driveway and he was
aware of the fork lift that was parked on the driveway. However, he was not told by the
Plaintiff’s that he was prohibited from using the driveway nor was he told that the driveway

was brand new.

Defendant McConnell and Plaintiff discussed the damage to the lawn and the driveway
via text messages which were submitted as Plaintiff’s Exhibit 8. The text messages indicate
that McConnell instructed Belair to contact Plaintiff in order to fix the damaged driveway In
addition, there are text messages from Plaintiff to McConnell that the “grass is better but still
some bare spots exists,” after McConnell sodded.

Robert Basarab testified on behalf of Defendant Belair that he observed some markings
on Plaintiff’ s driveway Basarab testified that the driveway looked as if there was never a top
coat applied and that the damage observed was only a “scuff.” Plaintiff provided rebuttal
testimony reiterating the extent of the damage caused by the Defendants and that the driveway
was recently finished, including application of a top coat. Additionally, Plaintiff testified that
the damage on the driveway consisted of more than a “scuff.” Plaintiff admitted photographs
of the damage to the driveway in Exhibits 2(a, b, c, d, e, & f) and Exhibits 7(a, b, & c) showing
more than inconsequential damage

Plaintiff testified that they received estimates to repair the lawn through Warton’s
Landscaping in the amount of $3,309.00, (Plaintiff’ s Exhibit 5). Plaintiff also testified that
they received an estimate of $3,927.50, (Plaintiff’s Exhibit 4) to repair the driveway and an
estimate of 3750 to treat and seal the driveway, (Plaintiff Exhibit 6).

Delaware law recognizes an implied warranty of good quality and workmanship.6 This
Court has previously held that this implied warranty attaches to contracts for renovations to a

home.7 “The implied warranty of good quality and workmanship presumes that contractors

6 _fee B_ye v. Geo);ge W. M¢Cau//@/ e'?°.fon Co., 76 A. 621, 622 (Del. Super. 1908).
7 506 /lfz`/z'poaez` 1/. Fmeba¢{}f 2013 \X/'L 5970491, at *1(Del. Com. Pl. Oct. 31, 2013); Marcano v. Dendy, 2007 \X/L
1493792, at *1 (Del. Com. Pl. May 22, 2007).

in the business have “the requisite skill” to perform the work they undertake and thus that
“the work shall be done in a skillful and workmanlike manner.”8 However, the implied
warranty does not “entitle the customer to excellence.”9 A contractor will be in breach of this
implied warranty if he fails to “display[] the degree of skill or knowledge normally possessed
by members of [his] profession or trade.”10 Plaintiff must prove breach of the implied
warranty by a preponderance of the evidence, which requires her to have “the greater weight
of the evidence” on her side.”11 “In determining whether the contractor's work was performed
in a workmanlike manner the standard is whether the party “displayed the degree of skill or
knowledge normally possessed by members of their profession or trade in good standing in
similar communities” in performing the work.”]2

The issue here is not whether the work was performed in a workmanlike manner
because no one questions the quality of the work regarding the patio. The question is whether
Plaintiff’s property was damaged during the instillation of the patio. The issue of good quality
and workmanship extends not only to the work as contracted but also to how that work is
performed Defendant McConnell laid planks across the Plaintiff’ s lawn and left them
covering the grass during the week. He only picked them up when he left the job site for the
weekend McConnell acknowledged to Plaintiff that the lawn had been damaged by the planks
being left on the yard McConnell re-sodded the Plaintiff’ s grass twice during the month of

August which did not ensure proper growth and left some bare spots in the lawn. Defendant

3 Dum‘an v. ]BS Coml., LLC, 2016 \X/L 1298280, at *3 (Del. Com. Pl. Mar. 31, 2016) (internal citations
omitted).

9 Ia'.

‘“Aj?/zpaaez`, 2013 \X/L 5970491, at *2.

n ]d_

12 ]a'_

admitted Exhibit 1(a, b, & c) which consisted of pictures taken after he re-sodded the grass
showing more green grass but still some bare spots.

Since the residence in this case was a second home at the time, Plaintiff hired a
neighbor, Brian Grawehr, to water their yard during the week. Grawehr testified that he saw
the planks down on Plaintiff’s grass throughout the week and overnight Grawehr further
testified that the Plaintiff’s lawn never had any problems until after McConnell began working
at the residence.

As noted above, Basarab testified, on behalf on Defendant Belair, that there was
damage to the driveway but he referred to it as minimal which is inconsistent with
overwhelming evidence. All other testimony and photographs describe the damage to the
driveway as more than a minor scuff.

The evidence establishes that Plaintist driveway and lawn were damaged during the
construction of the patio. Defendant McConnell failed to maintain the proper standard of
care regarding Plaintiff’ s lawn by leaving planks over the grass, for more than three days at a
time, during the months of July and August. His attempts to cure the damage by re-sodding
are mitigating factors which merits consideration, but failed to cure the problem. The evidence
further supports the conclusion that Belair parked the fork lift in the driveway for periods of

time, causing damage to the newly paved driveway,

CONCLUSION
For all the foregoing reasons, judgment is entered in favor of Plaintiff in the amount
of $4,677.50, for the damage to the driveway and $3,309.00 for damage to the lawn, costs of

these proceedings, and post-judgment interest until paid.

IT IS SO ORDERED. M

/Al.e>!j smalls,
/Chief]udge