JLM Design and Build, LLC v. Hovanec , File No. 27-CV-06-13001.
| Decision Date | 26 May 2008 |
| Docket Number | File No. 27-CV-06-13001. |
| Parties | JLM Design and Build, LLC, (Hon. Gary Larson) Plaintiff, v. Jeffrey Hovanec and Therese Hovanec, husband and wife, Defendant. |
| Court | Minnesota District Court |
GARY LARSON, Judge of District Court.
The above entitled matter came before the Honorable Gary Larson, Judge of Hennepin County District Court, on June 22, 2007, on Plaintiff's motion to enforce settlement agreement.
1. Plaintiff's motion to enforce settlement agreement is DENIED.
MEMORANDUMJeffery and Therese Hovanec, Defendants herein, live at 5030 Bruce Place, Edina, Minnesota. The Hovanecs, in large part because of Mr. Hovanec's recent diagnosis with multiple sclerosis, in May of 2005 began considering a significant remodeling of their home. The Hovanecs desired to make the home more accessible and compatible with Mr. Hovanec's changing needs and mobility. The Hovanecs wanted an elevator which would run from the garage and a reconfiguration of the first floor living space and bathrooms, which would make them ADA compliant and wheelchair accessible. They also wanted an addition to the back of the house, including a wheelchair accessible deck and an ADA accessible master suite.
The Hovanecs retained JLM Design and Build, LLC, for the remodeling and construction work. It is owned by Robert Roos, who is also president. Paul Winters is the general superintendent. Brian Dahl, also a JLM employee, met with and served as an initial contact person to the Hovanecs. In this capacity, Dahl represented to the Hovanecs that JLM had extensive experience in this kind of project and that they would be able to finish in 2005. Moreover, Dahl indicated that he was a licensed architect and an owner of the company, on top of being the primary contact person. The Hovanecs, based on their conversations with Dahl, hired JLM for the project.
In late August to early September 2005, Dahl submitted plans and specifications to the City of Edina. Work began on the Hovanecs home in September 2005. On November 17, 2005, JLM informed the Hovanecs that their bathroom plumbing would be inoperable for at least two weeks; around this same time, the Hovanecs also learned that Dahl was not a licensed architect. Stemming from the discovery of these two issues, the Hovanecs requested a meeting with the owner of JLM, Robert Roos. At the meeting, and in response to their concerns, Roos offered both to reimburse the Hovanecs the costs incurred during their move and also offered them Hovanecs a deep discount off of their final bill.
The Hovanecs moved out of their house shortly before Thanksgiving, 2005. In a conversation in early January, Roos assured the Hovanecs that they'd be finished by February 2006. Based on which, the Hovanecs gave notice on the townhouse that they were renting during the construction. Later in February, during a site visit, realize that JLM had misplaced the newly laid foundation by seven feet and had also mis-framed the addition. This error in construction reduced the Kitchen size and limited the use and accessibility of the third garage stall. In the beginning of March 2006, the Hovanecs moved back into their house, despite it still being under construction. March 28, 2006, the Hovanecs' nanny/housekeeper arrived at 5030 Bruce place and found one of JLM's employees, Mr. Kelly, asleep in the area of the Hovanecs' teenage daughter's bedroom. The following day, after the Hovanecs' had complained to Roos of his employee's inappropriate behavior, the nanny/housekeeper was home alone with the Hovanec children and was harassed to tears by Mr. Kelly and Mr. Kirchner, causing her to take the kids and leave the house. Consequently, the Hovanecs informed Roos that they wanted neither Kelly, Kirchner, nor their crew leader on their property.
At some point thereafter, JLM informed the Hovanecs that they would not construct the deck that had been part of the original agreement. Apparently JLM, through Mr. Austin their representative, informed the Hovanecs that the deck would now cost an additional $45,000 and that the cost to correct the addition would be $90,000. Thus, despite the original plan, which was submitted to the city of Edina, indicating that the deck was part of the construction, and despite the fact that JLM had already started to construct the deck, JLM indicated that the would only do the deck for the new cost—even going so far as to tear down the bit of the deck which they had already built.
Seeking resolution to the deck and addition issues, the Hovanecs met with JLM in May 2006. At this meeting, JLM provided drawings to the Hovanecs which showed the reconstruction of the addition and the deck construction. JLM informed the Hovanecs that the City of Edina was requiring JLM to apply for new and separate permits for the correction needed on the addition; such a permit also required a complete set of construction and engineering plans. Although JLM discussed this new plan, neither the Hovanecs nor the city of Edina received these plans.
On June 2, 2006, the Hovanecs' attorney sent JLM a letter which offered them the opportunity to cure its improper construction by way of removing the new, but faulty, addition by reconstructing the addition and deck according to the original plans—i.e. those provided to the City of Edina during the projects infancy. Because the Hovanecs hadn't heard from JLM on June 15, 2006, they sent another letter to Roos, informing him that the Hovanecs were treating the contract as terminated and that they were going to hire another contractor to repair JLM's work and finish the job. On June 26, 2006, the Hovanecs were served with JLM's complaint, in which, JLM alleged breach of contract and unjust enrichment. The Hovanecs answered JLM by denying their allegations and by asserting counterclaims for breach of contract, negligence, breach of statutory warranties, consumer fraud, and fraud. They also informed JLM's attorney that there was outstanding warranty work to be completed on the home. JLM did not repair these items, instead informing the Hovanecs that they would wait until all outstanding invoices were paid.
The Hovanecs learned on August 16 and 18, 2006, who were copied on correspondence sent to JLM by the City of Edina, that JLM had 17 items that needed to be corrected under their building permit. The City informed JLM that the building permit had expired; moreover, according to the building plans, construction of a deck was part of the plan and that it appeared that a deck had been partially constructed and then subsequently removed. Later in the year, October 2006, the Hovanecs learned from the City that the stone work that was installed on the exterior of their home had been installed incorrectly and needed to be removed.
On December 7, 2006, the Hovanecs and JLM attended mediation with John Patterson. When the mediation was nearing its end, but after the Hovanecs had left, Patterson drafted a handwritten list of issues that needed to be resolved. The list states, in full, that:
12/7/06
• Schedule on Stone Monday.
• Work on Warranty items.
• Plans and Specs on Bumpout in 2 weeks.
• Along with schedule on Payment for $45,000.00.
• Settlement Agmt on the balance.
• Release of all known claims.
• Agmt. To dismiss w/prejudice.
• Non-Disparagement provision/confidentiality.
All of this is tied to agreement on Bumpout Plans and Payment schedule.
• Cooperate with city.
• No signage.
• Must keep clean worksite.
The above bullet points were signed off on by the attorneys who were present at the mediation.
After the mediation, JLM informed the Hovanecs that they would like access to the property on December 12, 2006, for inspection of the stone work. JLM planned to being removing the stone December 13. On December 14, after JLM had begun work on the stone and had measured the garage and storage room, but before JLM provided the Hovanecs with a schedule of the...
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