Loading...
HomeMy WebLinkAbout939801 After recording, please return to: .."Kelly Currier ~ P.O. Box 9411 Jackson, VVl{ 83002 RECEIVED 6/16/2008 at 12:28 PM RECEIVING # 939801 BOOK: 691 PAGE: 253 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY LIEN STATEMENT BOOK PR PAGE 000253 THIS LIEN STATEMENT is filed, pursuant to Wyoming Statutes §§ 29 in the Office of the County Clerk for Lincoln County, Wyoming, for the purpose of claiming a lien on real property as follows: 1. LIEN CLAIMANT: Kelly Currier, P.O. Box 9411, Jackson, WY 83002, is the Lien Claimant. 2. OWNER AGAINST WHOM LIEN IS ASSERTED: Sean P. Cooney and Melissa Cooney, P.O. Box 1080, Thayne, Wyoming, 83127, are the co-owners of the property against which the lien is claimed. 3. LIEN AMOUNT: The amount of the lien claimed is $1,873.47, with interest accruing thereon at the r~teof Ten Percent (10%) p.er . annum, .commencing December 28, 2007. 4. BASIS FOR ASSERTING LIEN: The lien is based on the Small Claims Judgment against Sean and Melissa Cooney in Docket No. SC-2007-162, that was filed in the Circuit Court of Lincoln County, Wyoming .on December 28, 2007. A copy of that judgment is attached. 5. PROPERTY LIEN IS ON: The lien is claimed on real property located in Lincoln County, Wyoming, more particularly described as follows: Lot 9, Star Valley Ranch Plat 11, according to the official plat of record as platted and filed in the Office of the County Clerk, Lincoln County, Wyoming. A copy of tije deed to the property is attached. LIEN STATEMENT KELL Y CURRIER I COONEY PAGE 1 OF2 000254 DATED this /3 th day of .-Jt.<A.iJ- , 2008. BY:~~ LYC R STATE OF WYOMING COUNTY OF frroJ ) ) SS. ) I, KELL Y CURRIER, being first duly sworn according to law, depose and state as follows: That I am the Lien Claimant in the above Lien Statement; that I have read the Lien Statement; that I understand and know the content of the Lien Statement; that I believe that the statements contained in the Lien Statement are true; and that I have signed the Lien statement on my behalf. By: ~ ' . gM LlÆ LY . R SUBSCRIBED AND SWORN TO before me this i ''bÏ\,/ day of ~ v~ , 2008. WITNESS my hand and official seal. R DAVISON NOTARY PUBLIC COUNTY OF ~ STATE OF TETON ~ WYOIVIfNG My Commission expires September 19. 2009 By: NOTARY PUBLIC in and for said County and State (seal) ~/(q/z~~ My Commission expires: . . \,\.\\\\~'II;.J,:.J'!"J(" ....\ \) þ., V f S "'''''' ........ C If ~.J';, ." ~ ....~. ......." /// ..~ f /~ 0 TAR Ÿ\ \ ~ --f i· ~ ~ .-.. ~ ~~ ~. ::.rn. . v··--·:: ~--"'PU B \ \ ::;::: ~~ 0 -.. - .: ~ ..~ ':.;.... 7 .... ..··~t\..,\ ,,,,~ .-;¡. C'. ....... '.. ,...... 'If"f 0 IJ T}\ ,<. ,/ """ f! I till' . ~ ' \.' LIEN STATEMENT KELLYCU~R/COONEY PAGE 2 OF 2 I IN THE CIRCUIT COURT OF THE THIRD JUDICIAL DISTRICT IN AND FOR ~HE COUNTY OF LINCOLN,ßTATE OF WYOMING KELLY CD RIER, PLAINTIFF, SC-2007-162 ú()0255 VS. ¡ I , I SEAN i¡\ND MELISSA COONEY, . , I ; : ! DEFENDANT, SEAN ~þOLEY, . , I ¡ , , , I i! PLAINTIFF, è~ .:; . VS. . , I; i i ! j , , KELLY. CV RIER, ¡ I ! i .' DEC 2 8 2007 DEFENDANT, if,,' , SANDRAL ÄAWKÊ9 CLERK OF CIRCUIT COURt 3rd JUDICIAL DISTRICT ~INCOl.NCOUNTYr STATE OF WpM~ ! ! I ! ; ¡ , ! ! : SMALL CLAIMS JUDGMENT FACTS.: . . Thes¢ matters came before the Court for Small Claims hearings on December 12, 2007~! All pa1iÜ:s appeared for the hearing and provided testimony and exhibits. Additionally, the Plaintiff in Docket #2007-162, Kelly Currier, (hereinafter referred to as Currier), had a witness present to tes~ify in her behalf.. That witness was Darren RosenbaUm, (hereinafter referred. to as Rosenbaum), who was the plumbing subcontractor for the construction at issue in the basement I of the C;urrie{ home. The Defendants in Docket #2007-162, Sean and Melissa Cooney, (hereina,fter rþferred to as Cooney), also called as a witness, Mr. Blair Toland, (hereinafter , referred to aSj Toland), who did much of the work on the Currier project. R~senbaum had, filç:d hi,ß. own separate action against Cooney in Docket #2007-161, on November q, 2007. It was also set for a hearing on December It, 2,007, forhearing. At the commençement of said hearing, Cooney acknowledged that he owed Rosenbaum the amount of I his claim and judgment was entered in favor of Mr. Rosenbaum based upon said stipulation. Otherwise, trom the testimony of the afore-mentioned witnesses provided at the hearing, the Court makes the following findings of facts: 1. Currier and Cooney entered into a contract dated April 20, 2007, for the construction ofthe basement area of the Currier home in the Nordic Ranch Subdivision in Star Valley, i. 3. , ! , . : ! 1 I 4. I ·5. 6. 2. Wyoming. The contract was for a total sum of $11 ,361.00. It was undisputed that Currier paid Cooney a total of $10,240.00, leaving a balance of$I,121.00. This was the amount stated in the contract'to be paid by Currier to Cooney -~00256 upon completion of said contract. \,; Currier arranged for a friend by the name of Richard to perform the framing of the basement; and also hired the electrical subcontractor. Cooney hired Rosenbaum as the plumbing subcontractor and also arranged for the painting subcontractor and Toland t6 perform services. , The contract between the parties was essentially divided into three areas. Cooney's performance under the contract was to begin once Richard had completed the framing. Subsequent to framing, Cooney was to provide all plumbing including "labor, materials, and fixtures for a shower, sink, and toilet in the bathroom as well as a deep sink under the stairs and water line for ice maker. Plumbing fixtures may be upgraded at the home owner's expense." The amount contracted for the afore- mentiot;led plumbing was $1,800.00. An additional $1,800.00 . was agreed to for insulating the ceiling of the basement. Cooney was also to drywall, texture and paint (one coat of prime and one coat of finish) all walls for an agreed amount of $4,300.00. Lastly, Cooney was to install all interior trim including base, case, window wrap, closet shelving as well as eight neW interior soUd six panel Colonial doors. The contract amount for this was $2,SgO.OO. . . 'Ii;' The parties also agreed that Cooney would provide all of the hardware for the project for the sum of $420.00. An additional $541.00 was added for contractor (Cooney) commission. The afore-mentioned items did total to the contract amount of $.11,361.00. There was a dispute throughout the hea.ring as to whether or not Richard performed the framing in a timely and competent manner. Essentially, CourieJ; asserted he did, and Cooney asserted he did not. Cooney's services were to be performed after the framing was completed. It was undisputed that Cooney's last personal performance of services was on May 14,2007. Toland last performed services on Cooney's behalf on July 21, 2007. Currier actually completed the basement with the help of her roommate and by hiring a couple of other individuals to finish small projects. A large amount of the dispute between Currier and Cooney centered upon the quality and type of fixtures and hardware to be supplied under the contract. The contract provides no guidance on this issue. Currier testified that Cooney was shown the existing fixture and hardware in the upstairs portion of the Currier home and he agreed to provide similar items in the construction of the basement. Cooney did not specifically dispute this, but did testify that he agre@d to and did provide medium grade materials. Another area of major dispute between Currier and Cooney was the fixtures (shower and cabInet) installed in the bathroom. This dispute essentially center((d around the size of the bathroom which was ftamed by Richard. . Accordingly, the size of the bathroom was essentially determined by Richard's fraining. The bathroom size dispute was enhanced by a dispute between Currier and Cooney'as to whether or not Currier supplied Cooney with a detailed floor plan for 2 7. construction. Currier provided the Court with a copy of a detailed floor plan for construction of the basement, which . Cooney indicated he never received. Cooney provided the . Court with a copy of a more general floor plan which did not 000257 specifically describe an area for the bathroom at issue. The Currier floor plan indicated the area of the bathroom was to be approximately 6' 8" X 8'. From the testimony provided at the hearing, the Court determined that the actual dimensions of the bathroom after construction was approximately 5 V2' square. The Court finds this smaller area to be attributable to Richard's framing. The next major area of dispute between Currier and Cooney was the quality of dry walling, texturing, and painting. Currier indicated that the texturing was -to be of a texture similar to the upstairs area of her home, which she described as an orange peel type texturing. From photographs presented by Currier, it is clear the texturing was much more coarse. Currier testified that 01) many areas, if a sock was thrown against the wall, it would stick due to the coarseness of the texturing. I ì II DISCUJSIO : I A contract comes into being when there is a meeting of the minds concerning the , terms of the aweement. The existence of the contract depends upön the intent of the parties apd prFsents the trial court with the question of fact. The party who alleges that a contractexist~ bears the burden of proving the terms of that contract. Carrol v Bergen, 57 P.3d 120Q (Wyo. 2002). A contract will be construed most strongly against the party who drafted tÞe cor tract. Idaho Migrant Counsel, Inc. v Warila, 890 P.2d 39 (Wyo. 1995), The Prudential Plíeferred Properties v Underwood Ranch Company, 813 P.2d 598 (Wyo. " . I 1994), Brown v Johnston, 85 P .3d 422 (Wyo. 2004). Building and construction contracts contain a wan'anty either express or implied that the work will be sufficient for a certain Cooney generally testified that the dry walling, texturing, and painting were all satisfactorily performed. However, when confronted by some of the photos presented by Currier, Cooney admitted there were areas of obviously substandard services. The photos show very coarse and rough texturing, substantial lines in the drywall, substantial indentations behind electrical outlets, apparent and clear overspray of the wall texturing onto the adjoini'iig area of the ceilings. The photos also clearly show substandard finishing work around comers of baseboard, trim of windowsills and completion of door casings. The Court generally finds in favor of Currier on these ~isputed items and against Cooney. purpose and it will be performed in a skillful, careful, diligent, and. workmanlike manner. The contract is not performed until the work accompHshes the agreed result. Complete I . performance <¡>f a contract is proved by substantial performance t~at will exist even though there areminQr defects that must be corrected at the expense onhe contractor. Alpine Climate Control, Inc. v DJ's, Inc., 78 P.3d 685 (Wyo. 2003). Currier presented a very thorough and organized claim before this Court. Her claim 3 I I I was also set ¡forth in a thoroughly organized loose leafbinder which was presented to the ~efendant id the Court and is a part of the record in this matter. This binder also e00258 Included, a crpy of a demand letter which Currier sent to Cooney prior to the filing of her action. To t1e contrary, Cooney's defense to Currier's claim, and presentation of his own claim, wfls npt as well prepared. Pre-hearing preparation is not fataIto a party's position, but cert~inlylproper preparation can enhance a party's credibility and persuasion by docum~ritatitn. . çoo~ey made no pre-claim demand to Currier for payment prior to filing of his Sma1l91aims action. Cooney's claim of$2,820.00 was explained to the Court to consist of the follJWinJ: . :' ! 1: $IOO'OO ?j $ ,121.00 3) $ 0.00 , ! i 1~ $fOO.OO I $; $70.00 6. $279.00 , : I 7: $170.00 I' I ¡ $2, 20.00 ì; I' : i I ;7 ~!uri1g the course ofthe hearing, Cooney indicated that he understood that Toland's agreem~l}t w~th Currier regarding the door may be a separate issue between Toland and I Currier }'v¡'hich he may not be able to claim on Toland's behalf. The'Court agreed and ! ' . denied the $100.00 claimed in Toland's behalf. The remainder of Cooney's claim against Currier is als? denied. Regarding the $1,120.00 due upon completion, the contract was never cQIPpl¢ted by Cooney. Substantial perfonnance did not exist because the defects ! remaining w((re more than minor. Cooney's other claims were never previously presented Toland's work in construction of an upstairs door. The balance due under the contract upon completion. Toland's services in cutting trimmers out to fit two doors. A window installed in the dog room. Court Costs Lost wages for coming to Court Changes to painting TOTAL to Curriÿr, ~d appeared to the Court to be an afterthought by Cooney in response to CUrrier'i3,fi1i1g of her claim. Additionally, neither party is able to prevail upon any claim for lost wage~ in pursuing this matter. Items such as lost wages; expenses' of suit, and attorney's fe,s (not relevant to this matter) are not recoverable u1!less provided for by statute Ojf, agrted to by the parties. There is no statute providing for recovery of said items in a mattçr stich as this, and the parties did not agree in the contract that in the event of a I lawsuit either party may recover such expenses. An itemization of Currier's claim against Cooney is contained in the binder , I presented unq,er the first tab entitled, "Sequence of Events." The sequence of events is set forth upon five pages and shall be utilized by this Court in deterill.ining Currier's claim. Pages 1, 2, 3 and most of page 4 contain an itemization of materials purchased by Currier to complete the basement. Receipts for those items are also contained in the "Receipts" tab of the binder. Said four pages also contain two items claimed as payments made to others, for $120.00 each, to complete small projects. The bottom of page 4 and page 5 include 4 ú00259 claims for a~ditional costs incurred by Currier due to non-perfonnance by Cooney. The last item in ~at category claimed by Currier is the sum of $2,690.00, representing ten days i of missed wQrk, at 8 hours per day, at the rate of$33.65 per hour. Currier testified this ! hourly rate was based upon her salary with a real estate resort marketing company. As indicated abdve, such ancillary costs incurred by a party are not recoverable unless provide'Hor ~y statute or contract. Accordingly, said claim is denied. C,urrifr also has four other items claimed based upon this hourly rate of $33.65 per. hour, wbich ~s based upon her annual income of$70,000.OO. These claims are $269.20 to I .' I repaint the brdroom; $1,009.50 to caulk and paint the basement trim, doors, and door casing; $134160 to repaint the bathroom; and $134.60 for additional time to find other people tp; fin~sh various aspects of the job. Those items total to $1,547.90. The Court cannot ~war9 this amount. The Court has no doubt that some of Currier's time, if not most of it, w~s! du1 to the failure of Cooney to perfonn. However, the Court cannot base an award uppn 9urrier'sannual income. Potentially, the Court could have awarded some I . amount ;fpr 9urrier's labors, if evidence had been presented regarding a reasonable and customary ra)' e charged by persons nonnally engaged in providing those types of services. Howev~r~ no such competent evidence was provided to the Court. The state of the law is clear th'tt a Crurt may not speculate as to matters ~~ch as this. Accordingly, even though the Cou~~ is rmpted to speculate at a reasonable rate for said services, the Court cannot do so. BrOt!es Broyles, 711 P.2d 1119 (Wyo. 1985). Consequently, these claims are hereby demed. , i Çurrifr also claims the sum of $400.00 representing her roommate's time in cleaning up tve mess left by Cooney. The $400.00 represents 20 hours at $20.00 per hour. This clairµ. mpst also be denied. Again, the Court would be speculating as to whether or not 'this was ~ reasonable rate for the type of cleaning services provided. Additionally, there is no indication in the written contract that this was the responsibility of Cooney. As set forth above, Currier testified, and the photos clearly show, defects in the drywall" tex~ring, and painting of the basement. The contract provided for an amount of $4,300.00 fo~ this portion of the contract. Currier testified that it was reasonable to assume that it wO,uld fost of minimum of one-half of the cost of texturing and painting to repair the defects.A.cc9rdingly, Curtier indicated that of the total of$4,300.00, one-third of that 1 amount ($1,4p3.33) couldbe attributable to each of the three items of dry wall, texture, and painting. Consequently, she claimed one-half of the cost of texturing and painting. One- half of the co~t of the texturing and painting is $716.67 each (1413.33 + 2). Added togetherthey:tota1 to $1,433.33. . I Cooney did not testifY whether or not this was an unreasonable amount or provide any evidence to the Court as to his opinion regarding what it would cost to correct the obvious defects. Again, as stated above, the photographs clearly show unsatisfactory perfonnance regarding textUring, lines in dry wall, indentations under outlets, failure to complete door casings and trims, overspray of wall texture upon the ceiling, substandard 5 ( ! 000260 I baseboard c9rners and j~JÍnts. Currier's claim as described above is based upon the amount stated in the þontract. The Court does find this to be a reasonable amount. The Court does award Currier the sum 0[$1,433.33 to correct Cooney's failure to perform and/or negligent I performancel Man~ of the items claimed by Currier in her itemization of expenses incurred including pairting supplies. Given the amount awarded above to cover said matter, the Court feels tnappropri~te to award these individual items. Accordingly, they are denied. , Otherwi,se, ~e Court was generally persuaded by Currier that it was necessary for her to purchasr ¡matfy of the items set forth in her sequenœ of events in order to properly finish the proj~ç;t. tgain, contracts are construed most strongly against the party who drafted the contract. Cooney drafted the contract. The contract was non-specific regarding the type of materials: to + purchased: The Court is persuaded by Currier's testimony that the materials were to p~se1tiallY match the existing materials and hardware located on the upper level of Currier'~:hon¡le. The Court finds they did not and many of the items claimed by Currier are approPri~te'lrom Currier's sequence of events the Court awards the following items: IT~M , ITEM DESCRIPTION AMOUNT 9 : . Kitchenette Sink and Countertop $181.26 40 i Doorstop $ 7.41 ! ~ 42 ! i Door Hardware' $ 21.12 45 i I Shower Door Enclosure, Closet Shelving, I I' , I Faucet extension $167.81 ; : : I 47 ! MDF Casing $ 50.85 48 Closet Pull and Hardware $ 7.50 49 Door Hardware, Shelf and Rod Support $ 20.22 56 Hardware to Hide TV Cable $ 28.14 60 Door/Closet Hardware, Kitchenette Shelving $ 25.09 61 Shower Caulking $ 8.03 63 One-half ofthe $120.00 Claimed to hire neighbor to Install Shower Door $ 60.00 $ 31.70 $609.13 64 Tools to finish basement trim TOTAL The Court determined that Currier can not be awarded the following items, due either to the Court's finding that Richard constructed the bathroom with an ultimate area smaller . . I than as indicated by the floor plan, or generally due to Currier's failure to prove these items by the preponderance of the evidence. ITEM # DESCRIPTIÖN AND/OR REASON FOR DENIAL AMOUNT $178.52 $ 50.00 21 Bathroom Vinyl- Flooring Not Covered Under Contract 39 Alder's Drywall- Currier's Failure in Burden of Proof 41 Trip to Idaho to Get Bathroom Cabinet and Materials - 6 000261. 43 51 53 58 &5 May by attributable to Richard Bathroom Hardware - RichardlBurden of Proof Dutch Door - Not Provided by Contract Access Door - Currier's Failure in Burden of Proof Secol1d Kitchenette Sink and Center - Awarded in #9 - and Currier's Failure in Burden of Proving Second award was appropriate One-half of the $120.00 to install access door- Currier's Failure in Burden of Proof Carpet Cleaning not provided for in contract $304.04 $208.94 $250.00 $ 62.50 $186.54 , 63 65; ; $ 60.00 $ 40.00 67: ¡ Garcia's Re-hanging of Bathroom mirror and cabinet TOTAL $120.00 $1,460.54 i· . i ¡ i . , , ' - Currier's Failure in Burden of Proof As indi.~ted labove the Court did award Currier the S\Un of $1,433.3 3 to cover necessary repairs ~q be ~ffected regarding Cooney's failure to perform andlor negligent performance , . I regardiqg teturing and painting. It ~as previously indicated that line items requested by Currier f?r printing supplies in said regard would~therwise by denied. Those line items were it~s #16,17,18,54,55,57, and 69. These'items total to asum of$204.28. This , ! I amount ¡i~ de lied. qurrifr also had in her sequence of events a total sum of $168.99 that was due to CooneYi~s a fredit for ite~s he had purchased and she had returned. Cooney is entitled to that cre<;lit as calculated by Currier. . In sutmary, Curri'er's award against Cooney is calculated as follows: ITEM 111 AMOUNT Repair T~xturing and Painting and finishing I Material furchased by Currier which were Cooney's responsibility under the contr~ct Total I I I Less ;oe~uctions for Credits ~ : I ; i Fin~1 Judgment Amount $1433.33 $ 609.13 $1,460.54 ($ 168.99) $1,873.47 HOLDING:. I IT IS: THEREFORE ORDERED, ADJUDED AND DECREED, that Currier receive judgment against Cooney in Docket #2007-162 in the sum of$1,873.47. Said judgment shall bear interest at the rate of 10% per annum from and after the date of judgment and is entitled to accruing costs of execution and garnishment. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that Cooney shall take nothing by way of his clairri against Currier in Docket #2007-167. 7 i 000262 IT I~ FURTHER ORDERED, ADJUDGED AND DECREED, that both parties shall bear their O\i'n costs in pursuing these matters.M-. D~ IN CHAMBERS this a- f day of ~ ' 20 0 1 and signed this ),7 d yof þ<-- 20Jr,Z." i;.1r\". .... :-: ~...~GE ..' ,-i. r~ ........... ~,... 7}f' PJ~ 1~ \ , . I J; I' , , I I ! : ; . , . i ; : 8 000263 014902 ....-- .-, , m.r:r.....: ..' . ::-;~ lV 875601 WARRANTY DEED t~ECEIVED I.tNCOLN COUNTY OloER\< 01 AUG 30 1\1'110155 , JEANNE YU~GNER KEMMEI~F:R. WYOMIN6 l3ooK4?;:1' PR PAO&O ,J NORMJW R. O\7B:RACKER and ELAINE i1, OVERACKER., hUllblmd and wife Grantors of Thayne, councy,c! Lincoln, hereby ~ and WARRANT TO I State of Wyoming SBAN P. G!ØNB¥i and MELISSA ~Ne husband and wife, 11£' tenantll by the entintiu Grantees of PO Box lOBO Thaynõ, WY 83127 for the sum of Ten Dollars and other good 5nd valuable conøideration--------- the following desoribed tra~~:of land in ~incQln County, Btate of wyoming, hereby' releuing and waiving all 'right" under and by virtue of the homestead exempt.ion la.wl of the Sl:a~~,. to-wit: ' T . I. . Lot 9, Sl:a~ valley Ranch Plat 11, acoordrnš to tbe official plat of record aø ·platted and filed in the Office of the Cc?unty Cle7'k, Linaoln county, Wyoming. , , .' Etubj sot' to that: Mortgage re~o1îdad .February ,~6, '199S Book 426' I? It., ,Page 5B3. aubjact., to rese:rvations and rutriét10nø c·onta~ne.d in the United St.at.. Patent and to easements and rights-of-way of ~cord or in uøe. Together with all improvements and appurtenance. thereon. WITNmBS, the hand of said grantors, this 28th day of August, A.D. 2001 ~¡(.'~~~ Norman R. Overao ar ~Q:.~~atkJ ______________~w_____~______~-.-~-------~-------~---~----------------.----- S'l'AU OP W'lOMING County of Teton " On the 28th day of Aug4st, A.D. 2001, personally appeared 'before me, Norman R. OVeraoker and Slaine J. OveracKer, known or identified to me to be the per.ons whose, names are 8ubBcribed to tb.e within instrument, and acknowledged to me that tb.ey executed the same. ISS " ~'fl' ~ ~ Nota 1 c My commission expire. LAND TITLE COMPANY I ",I' ,. .