Claude G. Dern Elec., Inc. v. Bernstein
| Decision Date | 25 May 1984 |
| Docket Number | No. 83-018,83-018 |
| Parties | CLAUDE G. DERN ELECTRIC, INC. v. Maxine BERNSTEIN. |
| Court | Vermont Supreme Court |
Rhys Evans, Manchester Center, for plaintiff-appellee.
Putter & Unger Associates, Montpelier, and Charles R. Eichel, Manchester Center, for defendant-appellant.
Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.
This appeal, after trial by jury in Bennington Superior Court, arises from a contract dispute involving the construction of defendant's residence. Plaintiff is a building contractor who seeks $10,912.57 that he alleges is the outstanding balance for time and materials owed. Defendant counterclaimed, alleging damages for unfinished and defective construction. The jury returned a verdict in the full amount sought by plaintiff and found no liability on the counterclaim.
On appeal, defendant presents essentially two claims: (1) that plaintiff's liability on the counterclaim was admitted prior to trial because plaintiff failed to answer the counterclaim, and (2) that the verdict in favor of plaintiff was unsupported by the evidence and contrary to the court's instructions. We affirm the judgment of the superior court.
The parties initially entered into a written contract whereby plaintiff agreed to construct a home for defendant for the sum of $60,000. However, plaintiff contends the original contract was abandoned and the parties agreed to a "time and materials" arrangement whereby defendant would pay on an hourly basis for labor and for the cost of materials used. The original design was constantly altered during the process of construction, and plaintiff claims much of the additional cost for the project was due to these design changes and to "extras," such as hand-hewed timbers, a larger kitchen and bedroom, an additional door, larger windows, more kitchen cabinetry, bookcases and the underground burial of electrical service lines; defendant maintains that many of the extras were merely trade-offs for items never built but included in the original plans. After construction commenced, defendant decided to contract directly for certain work such as site preparation, masonry and plumbing rather than have plaintiff subcontract for these services. The payment schedule specified in the contract was similarly disregarded by the parties. Defendant has paid $61,044.60 to plaintiff who claims that an additional $10,912.57 remains unpaid for his labor and materials.
After plaintiff instituted this suit, defendant filed a counterclaim alleging plaintiff breached the contract between the parties because the cost exceeded the contract amount, the house was constructed in an unworkmanlike manner, and plaintiff deliberately failed to complete the heating system. Defendant claims she discovered various problems and defects in the construction of the house upon assuming residence. These included several leaks in walls, roof and foundation, an absence of attic louvers, an inoperative and inadequate heating system as well as various other problems.
The first issue is whether plaintiff's failure to answer defendant's counterclaim results in a judicial admission thereby establishing plaintiff's liability on the counterclaim.
Vermont Rule of Civil Procedure 8(d) provides that:
Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.
V.R.C.P. 7(a) mandates that "[t]here shall be ... a reply to a counterclaim denominated as such ...." This reply must be made within twenty days. V.R.C.P. 12(a).
Defendant's counterclaims were clearly "denominated as such" and were not responded to as required by Rule 7(a). The absence of the required reply, however, was never brought to the trial court's attention at any point before, during or after the proceeding. Evidence pertaining to the counterclaim was received at trial and was a subject of both counsel's closing arguments to the jury. An instruction pertaining to the counterclaim was also included within the court's charge to the jury. It appears that defendant makes this argument for the first time on appeal.
"There is no doubt but that allegations in a counterclaim well pleaded may be taken as admitted if no answer is filed." Stephan v. Lynch, 136 Vt. 226, 228, 388 A.2d 376, 378 (1978). The issue of default, however, must be presented to the trial court. In Stephan, as here, the case went to hearing on all substantive issues including the counterclaim, and the failure to reply was never raised below; the Court held the...
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...verdicts that are not "justified by 'any reasonable view of the evidence' " will be overturned. See Claude G. Dern Electric, Inc. v. Bernstein, 144 Vt. 423, 479 A.2d 136, 138 (1984) (quoting Crawford v. State Highway Board, 130 Vt. 18, 285 A.2d 760, 764 (1971)). A jury finding of negligence......
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...if a jury verdict "is justified by `any reasonable view of the evidence, it must stand.'" Claude G. Dern Elec., Inc. v. Bernstein, 144 Vt. 423, 426, 479 A.2d 136, 138 (1984) (quoting Crawford v. State Highway Bd., 130 Vt. 18, 25, 285 A.2d 760, 764 ¶ 28. The sufficiency of the evidence for c......
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