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Home My WebLink About930171 '- ....." "~,J "'X '",/1 THE STATE OF WYOMING ss. IN THE DISTRICT COURT THIRD JUDICIAL DISTRICT CIVIL NO. 10,663 COUNTY OF LINCOLN vs. DONALD W. SPEAKS, KATHLEEN B. SPEAKS, DAVID SPEAKS, and ELIZABETH SPEAKS, Plaintiffs/Counter Defendants, BYRON BAKER and ROSE BAKER, Defendants/Counter Plaintiffs. FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT \ This matter came before the court for a trial of the issues on the Complaint filed by Plaintiffs and the Counterclaim filed by Defendants. Plaintiffs David Speaks and Elizabeth Speaks and Defendants appeared in person with their respective attorneys. Plaintiffs Donald W. Speaks and Kathleen B. Speaks appeared by telephone. Having heard the testimony and considered the evidence presented, and being fully advised in the premises, the Court finds as follows: 1. Plaintiffs are owners of Lot 46 of the Rees Subdivision which is located in a heavily wooded area close to the United States National Forest in Lincoln County, Wyoming. 2. In July of 1999, David Speaks and Byron Baker began negotiations for the construction of a log home on the lot owned by Plaintiffs. 3. Byron Baker represented to David Speaks that he was experienced in building log homes in the Star Valley area and that he had built a number of log homes. 4. Byron Baker represented to David Speaks that he could build a log home for Plaintiffs which would be built to code, referring to the Uniform Building Code. 5. Byron Bqker represented to David Speaks that he had contractor's insurance and other liability insurance. 6. Byron Baker had only been a general contractor on one log home which had a different type of log construction than that contemplated by Plaintiffs. 7. At the time Byron Baker made his representations to Plaintiffs, he did not have a contractor's license, plumbing certificates or engineering training and had never completed any drawings or calculations for determining the snow load of a roof. 8. Negotiations between David Speaks and Byron Baker continued until approximately September 14, 1999, when Byron Baker advised David Speaks that they needed to begin the project or else Byron Baker would move on to another project. 9. Byron Baker drew up rough draft plans of the house which he proposed to build for Plaintiffs and it was Byron Baker's responsibility as the general contractor to plan, draw and construct the home in accordance with the Uniform Building code and the snow load requirements for the area in which the house was to be built. RECEIVED 6/8/2007 at 2:31 PM RECEIVING # 930171 BOOK: 661 PAGE: 340 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY r· '~:\ "-¡,' 1\") '1\ f ';' " \;J....v'l.J.) , ¿. it "':"" ,fM'1I (.t¡ ') AJ ~ 10. On September 14, 1999, Byron Baker submitted a written proposal to Plaintiffs outlining the work that he would do for them, the materials to be provided and the type of work to be completed. 11. Plaintiffs accepted Byron Baker's proposal to build the log home and entered into a contract providing that Byron Baker would build a log home with lIall materials guaranteed as specified, and the above work to be performed in accordance with the drawings and specifications submitted for above work and completed in a substantial workmanlike manner for the sum of $133,488.00.11 12. In addition to the building of the log home, Byron Baker agreed to build a garage and do the site preparation, grading, gravel and septic system for an additional amount of money. 13. Although the parties were unable to agree on final plans and costs for construction of the garage, Defendant Byron Baker proceeded to build the log home pursuant to the September 14, 1999 agreement of the parties. 14. Byron Baker represented to Plaintiffs that there was an urgency to begin the house to allow him to get a roof on it before snow fell. 15. The written contract was prepared by Byron Baker and provided on page 3 that any changes involving extra costs IIwill be executed only on written orders and will become an extra charge over and above the estimate. 11 16. The contract to build the house was never modified by the parties after September 14, 1999. 17. In the spring of 2000, Plaintiffs became concerned about the quality of workmanship and the time period involved in construction. 18. In Ju~e of 2000, David Speaks met with Byron Baker to discuss his concerns and pointed out items which needed to be completed before the second to last installment payment of $12,453.00 was made. 19. During the summer of 2000, David Speaks had several meetings with Byron Baker to resolve construction issues prior to the final payments being made. 20. In August of 2000, the relationship between the parties deteriorated because Byron Baker advised that Plaintiffs owed him more money for extra costs and that he had not paid subcontractors and material providers on the house in an approximate amount of $10,000.00. 21. In August of 2000, Byron Baker told David Speaks that he needed additional money to complete the home and that he needed $2,000.00 for school clothes for his children. 22. Plaintiffs paid Byron Baker $14,000.00 with the understanding that Byron Baker would complete the items identified by David Speaks. 23. In August and September of 2000, Byron Baker represented to David Speaks that there would be no additional costs, with the exception of approximately $5,000.00 for completing additional dirt work outside the house. O~3Ü1L7:1. ftl1"kO ,,.,, ,'" -? '.' ,tJ ,\ g. X£I.-,; 24. In August of 2000, David Speaks prepared a document which he label'ed "completion date document" in an attempt to get Byron Baker to complete the building of the house. 25. Byron Baker represented that he would complete the items listed in the "completion date document" by August 31, 2000. 26. In August and September, 2000, Plaintiffs requested lien waivers and proof of payment to subcontractors and material providers from Byron Baker. 27. On September 7, 2000, Plaintiffs caused a letter to be sent to Defendants asking for information regarding lien waivers, costs, payments and work on the house and advis.ing Defendants to stop work until payment to subcontractors and material providers could be verified. 28. From September 7, 2000, Defendants did no additional work on the house. 29. In September, 2000, after Defendant Byron Baker stopped work on the house, Plaintiffs retained Arthur LeVasseur, an experienced general contractor, to inspect the house and Arthur LeVasseur noted construction defects including dry wall crush, settling logs and undersized rafters and purlins. 30. Pursuant to advice of Arthur LeVasseur, Plaintiffs retained Richard Scheerer, a structural engineer, to inspect the house. 31. standard snow load In the Alpine area where the house was built, it is a within the industry for roofs to be built to withstand a of 90 pounds per square foot or more. 32. The roof structure was substantially understructured or undersized to safely support the potential snow load for the area in which it was built and could barely support its own weight. 33. Defendant Byron Baker did not build the house within the standards of the industry, thereby compromising the structural integrity of the house. 34. The heating system installed in the house was not constructed within the standards of the industry and was unsafe, posing a potential for an explosion in the propane heating system. 35. Because of problems with the roof, heating system, venting system and other areas not being built within the standards of the industry and other safety concerns, Plaintiffs had to hire additional contractors to repair and complete the work done by Byron Baker and/or his subcontractors. 36. Plaintiffs paid Defendants the sum of '$140,202.61. 37. In addition to the amount paid by Plaintiffs to Defendants, Plaintiffs have paid the following additional amounts to have contract work completed and/or repaired as follows: ( a) LeVasseur Brother Construction $176,046.09 (b) Martin Heating 21,06(;.61 (c) Maximum Drywall 13,400.00 (d) M & M Mechanical 7,625.18 c"'~"-· -, ( ;',".\ "11 (I" ·~A!1Lt.~)".: u·~ fL.D ·...1 ~.-r~ (e) JB Mechanical (f) Johnson Electric (g) Jackson Moore (h) White Chapel (i) Cozy Cabin (j) Taylor (k) GG Flooring (l) Lowes (m) Peaveler's Excavation Total 000.3-43 1,900.00 4,881.51 1,000.00 3,560.97 3,015.40 2,112.00 1,098.00 999.00 940.00 $237,644.76 38. In November of 2002, the appraised value of the Speaks house was $210,000.00. 39. Defendants Byron Baker and Rose Baker were not married during the contract negotiations between the parties and Byron Baker's work on Plaintiffs' house. 40. Defendants did not have a written partnership agreement. 41. Defendant Rose Baker performed clerical duties for Defendant Byron Baker's construction business. 42. Although Defendants comingled their personal funds with Defendant Byron Baker's construction income and cost advances and Defendant Rose Baker had permission from Byron Baker to access and use those funds, Defendant Rose Baker did not have authority to make important decisions regarding the business or the control necessary to direct the course of the construction business. 43. Defendants have not presented evidence that rises to the level of a preponderance of the evidence to support their counterclaims against Plaintiffs. Conclusions of Law 1. The Court has personal jurisdiction and subject matter jurisdiction in this case. Venue is proper with this Court. 2. The contract entered into by Plaintiff David Speaks and Defendant Byron Baker on September 14, 1999, which provided that Byron Baker would build a home for said Plaintiffs for the sum of $133,488.00 is a valid and binding contract. 3. Defendant Byron Baker breached that contract by failing to complete the project in a timely manner and failing to perform work in a safe and workmanlike manner and in accordance with industry standards. 4. Although Defendant Byron Baker misrepresented his knowledge, experience and capabilities, such misrepresentations do not rise to the level of fraud. 5. Plaintiffs are not entitled to punitive damages. 6. Defendants are not partners and any claims against Rose Baker are dismissed. " r~ (;j-- ...:~ ~"';î"'; ,"",,-,,~I ' :Jl C ...... "'I!"~O<"!JI (~Jq,~ , ".ÍI.44: 7. Plaintiffs are entitled to damages in the sum of $239,359.37. 8. The parties shall each pay their respective attorney fees and costs. Dated this 6th day of June, 2007. ~3 District Judge STATE OF WYOMING J COUNTY OF LINCOLN SS. I, Kenneth D. Roberts, Clerk oftha Third Judicial District Court within and foresaid county and in the State f foresa' ..do hereby certify the fOYeI:1 in to be ffl'\'j t I ' true, and comPlete~o' '::' ,";'., Jill ,t N D . . 'II; " i'!' SIG E ...... ...-. . ~\" ... ~"\f. Ii" .l'· :-''ô¡ , " , :;.5 ¿"It})'''''l ~ '¡ Certificate of Service I hereby certify that I served a true and complete copy of the above and foregoing on the ~ day of June, 2007, and that copies were served as follows: John D. Bowers Attorney at Law P.O. Box 1550 Afton, WY 83110-1550 [_.....-f Mail Dale W, Aronson [~] Mail Attorney at Law P.O. Box 1418 Pinedale, WY 82941-1418 . (1~ CiŸ1-~ Connie Morris, J~l Ass~stant to Nena James, District Judge