Gemmill v. McMillion & Son, C.A. No. CPU5-09-000303 (Del.Gen.Sess. 9/21/2009)
| Decision Date | 21 September 2009 |
| Docket Number | C.A. No. CPU5-09-000303. |
| Parties | DAWN D. GEMMILL, Plaintiff Below, Appellant, v. JAMES MCMILLION & SON, Defendant Below, Appellee. |
| Court | Court of General Sessions of Delaware |
Dawn D. Gemmill, 2456 Williamsville Road, Houston, DE 19954, Pro Se, Plaintiff Below, Appellant.
James McMillion, 4175 Gun and Rod Club Road, Houston, DE 19954, Pro Se, Defendant Below, Appellee.
DECISION AFTER TRIAL
In this civil appeal from the Justice of the Peace Court, this Court finds that the Plaintiff, Dawn D. Gemmill, is entitled to recover $1,979.37 from the Defendant, James McMillion & Son.
1. PROCEDURAL POSTURE
On January 20, 2009, a decision was rendered by the Justice of the Peace Court. The plaintiff below. Dawn D. Gemmill, filed a timely notice of the appeal on February 3, 2009. The defendant below, James McMillion & Son, filed a timely answer and a counterclaim. Appeals to the Court of Common Pleas from the Justice of the Peace Court are by trial de novo. 10 Del. C. §9571(c). A pre-trial conference was held on July 22, 2009 and a trial was held on August 19, 2009. On the date of trial, Ms. Gemmill appeared for herself. Mr. McMillion, who traded as James McMillion & Son, a sole proprietorship, appeared for himself. Mr. McMillion's counterclaim was dismissed by the Court, pursuant to Court of Common Pleas Civil Rule 72.3(c), because it was not an issue that was raised in the court below.
II. THE FACTS
At trial, Ms. Gemmill and Mr. McMillion both testified to the origin of two written contracts and an oral contract.
On May 2, 2007, the parties entered into the first written contract. It was an agreement for Mr. McMillion to remove the aluminum siding from Ms. Gemmill's home and replace it with foam board and vinyl siding and also to trim and paint the window frames. The total cost for labor and supplies was $2,816.84. Both parties signed the contract. Ms. Gemmill gave Mr. McMillion $2,000 as a down payment and he gave her a receipt. (Plaintiffs Ex. 1 and Defendant's Ex. 6).
On May 3, 2007, Mr. McMillion started work and tore off the old siding on the house. He testified that he took the material to be recycled and kept the funds as was agreed to under the contract.
On May 4, 2007, a second contract was formed when Ms. Gemmill advised Mr. McMillion that she also wanted her garage sided. The contract was for the removal of the old siding and replacement with foam board and new siding. The total cost for labor and supplies was $609.59. Ms. Gemmill paid Mr. McMillion $409.56 as a down payment and he gave her a receipt. (Defendant's Ex. 5 and 6).
Problems began almost immediately with the project. Mr. McMillion was injured in a fishing accident that required hospitalization and surgery. He was unable to work for several weeks. When he returned to work, his work was sporadic. Ms. Gemmill testified that she often worked nights and slept during the day. She had agreed with Mr. McMillion that he would have to work odd hours to accommodate her schedule, or advise her when he would work, so that she would plan to be away from the home to allow him to work during the day without disturbing her sleep. Testimony by both parties indicated that Mr. McMillion would work a few days during the week and Saturdays and that initially there was no problem with either party with this arrangement.
In July of 2007, Mr. McMillion, who also runs a cleaning service with his wife, was seldom able to work on Ms. Gemmill's home because he had a contract to clean the Delaware State Fair Grounds. Ms. Gemmill testified that she understood this prior commitment; however she was frustrated after the fair ended and the work failed to increase. She testified that Mr. McMillion's work was infrequent and little was being accomplished on her home. He would only show up for an hour or two at a time, make excuses for arriving late or leaving early, or fail to show up after Ms. Gemmill made plans to sleep at another location, which was generally inconvenient to her. While Mr. McMillion quibbled with details of Ms. Gemmill's testimony, he did agree that his work was inconsistent due to other events and projects. He repeatedly asserted, however, that he had done a significant amount of work on Ms. Gemmill's house for which he believed that he deserved to be compensated.
Both parties agreed that in September of 2007, Mr. McMillion told Ms. Gemmill that he needed more siding than he had originally estimated. Ms. Gemmill paid Mr. McMillion an additional $241.00 for siding supplies and he gave her a receipt. (Defendant's Ex. 6).
Between the fall of 2007 and the winter of 2008, Mr. McMillion continued to work sporadically until the weather became too cold and work ceased altogether.
By the spring of 2008, Ms. Gemmill was frustrated by the incompletion of the house and the lack of any work on the garage. She testified that she tried repeatedly, without success, to call Mr. McMillion and that she left messages that he bring her all the supplies for which she had paid so that she could hire another contractor to complete the project, Mr. McMillion disputed, in his testimony, that he was difficult to reach or that he purposefully avoided Ms. Gemmill. He testified that he was unable to return the supplies to Ms. Gemmill because his truck and all of Ms. Gemmill's supplies were stolen from his driveway in January of 2008. The Court concludes that, at some point in the spring of 2008, Mr. McMillion abandoned the project.
Ms. Gemmill hired another contractor, Mr. Hastings, to finish the work on the house. Ms. Genmiill and the new contractor both testified that they agreed that, rather than form a contract, she would reimburse him for his purchase of supplies outright and that he would bill her for labor. Both testified that the cost for the labor was $1,350.00 to complete the siding project on the house. The contractor also charged Ms. Gemmill to paint a small shed and install a front door, but these items were billed separately. The contractor did not do any work on the garage. Ms. Gemmill paid for the supplies to complete the project in the amount of $795.62. (Plaintiffs Ex. 7). The total cost for Mr. Hastings to complete the work left undone by Mr. McMillion was $2,145.62 for labor and supplies. Mr. Hastings testified that these amounts were only to finish the work left undone by Mr. McMillion. He testified that Mr. McMillion only partially completed three sides of the house and those three sides lacked finish work such as trim pieces.
Both Ms. Gemmill and Mr. McMillion presented photographic evidence of the house during the course of renovation. Mr. Mitchell, the Plaintiffs father, also testified regarding the photographs. This evidence was confusing to the Court. Ms. Gemmill only provided some photographs prior to the completion of the project by the second contractor and there were insufficient dates given in conjunction with the photographs.
In his defense, Mr. McMillion testified that he completed three sides of the house with only small details on the front of the house outstanding. Additionally, he testified that he removed all the aluminum siding on the back of the house and began attaching foam board to that part of the house. He agreed that he had received money for sale of the aluminum scrap siding that he removed from the house, but testified that he never advised Ms. Gemmill that she would receive a set-off. He agreed the garage was never done and also that an additional coat of paint on the trim was not done. He also agreed that he never returned the supplies to Ms. Gemmill due to their theft while in his truck. He also agreed that the house was not fully completed by the spring of 2008, when Ms. Gemmill advised him that she wanted to hire another contractor. He argued, however, that he completed most of three sides of the house and that Mr. Hastings exaggerated the amount of work and cost that it took him to finish the job. He also argued repeatedly that he should be paid a fair value for his work, even if his circumstances had changed and caused him to be unable to complete his job under his contract. He also testified that he had many out-of-pocket expenses from Ms. Gemmill's project. (Defendant's Ex. 8). In addition, he testified that he had installed a soffit around the house between the roof and the sides of the house. He produced receipts for soffit materials. Ms. Gemmill disputed that those receipts were used for her specific job, but did not dispute that Mr. McMillion installed soffits. It appears from the photographs that there are soffits on the house. Mr. McMillion testified that this was part of a vinyl siding job, but it was not specifically itemized on either Proposal.
Mrs. McMillion, the wife of the contractor, testified that photographs...
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