S & W Roofing, LLC v. Scott Shepperson

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0506, S & W Roofing, LLC v. Scott
Shepperson, the court on April 24, 2020, issued the following
order:

To the extent that the defendant requests to strike the plaintiff’s brief
because it does not contain sufficient record citations, the request is denied.

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiff, S & W Roofing, LLC, appeals an order of the Superior Court
(McNamara, J.) in favor of the defendant, Scott Shepperson (owner), on his
counterclaim. The plaintiff contends that the trial court erred by: (1) finding
that it breached the parties’ contract and awarding the owner the cost of
installing a new roof when the owner did not allow the plaintiff to repair the
roof it had installed; (2) not deducting the amount due from the owner under
the contract from the owner’s damages; and (3) not considering whether the
owner mitigated his damages.

We first address whether the trial court erred by finding that the plaintiff
breached the contract, thereby discharging the owner’s duties under the
contract. To the extent that the plaintiff bases its arguments on RSA chapter
359-G (2009), we decline to address them because the trial court found, and
the record before us supports, that the plaintiff did not raise these arguments
until it moved for reconsideration, at which time the trial court declined to
address them. See Mt. Valley Mall Assocs. v. Mun. of Conway, 144 N.H. 642,
654-55 (2000) (party cannot raise issue for the first time in motion for
reconsideration when issue was readily apparent at time party initially sought
relief); Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

In this case, the trial court found that the plaintiff “breached its contract
with [the owner], which required that it provide a new roof which does not leak
during a New England winter.” Not every breach of duty by one party to a
contract discharges the duty of performance of the other. Fitz v. Coutinho, 136
N.H. 721, 724 (1993). However, a breach that is sufficiently material and
important to justify ending the whole transaction constitutes a total breach
that discharges the injured party’s contractual obligation to perform. McNeal
v. Lebel, 157 N.H. 458, 465 (2008). A breach of contract is material when it
touches upon the fundamental purpose of the contract and defeats the parties’
object in entering into the contract. Ellis v. Candia Trailers & Snow Equip.,
164 N.H. 457, 467 (2012). Whether a breach of contract is material is a
question of fact, and we will uphold the trial court’s findings of fact and rulings
of law unless they lack evidentiary support or constitute a clear error of law.
Id. at 466.

The trial court found that “the roof was leaking in multiple places” and
that the owner “acted reasonably in obtaining another contractor to remedy the
problem.” Cf. Monticello v. Winnebago Indus., Inc., 369 F. Supp. 2d 1350,
1361 (N.D. Ga. 2005) (stating that plaintiff failed to establish that good sold
was defective at time of sale); Morin Bldg. Prod. v. Atlantic Design, 615 A.2d
239, 240 (Me. 1992) (stating trial court found plaintiff substantially performed
contract duties). Thus, the trial court implicitly found that the plaintiff’s
breach, in providing a roof that leaked in the winter, was material and
discharged any further duty by the owner under the contract. See McNeal, 157
N.H. at 465.

The plaintiff argues that the owner had a contractual duty to allow it to
repair the multiple leaks that appeared during the first winter after it installed
the roof, and that, because the owner did not allow the plaintiff to repair the
roof, he cannot recover damages. However, we conclude that the trial court’s
finding that the plaintiff materially breached the contract by installing a roof
that leaked in multiple places is supported by the record and not legally
erroneous. See Ellis, 164 N.H. at 466. Accordingly, the owner was released
from any contractual duties. See McNeal, 157 N.H. at 465.

We next address whether the trial court adopted an incorrect measure of
damages. Whether a party has sustained damages and the nature and extent
thereof are questions of fact for the trial court to determine. Lassonde v.
Stanton, 157 N.H. 582, 592 (2008). In reviewing damage awards, we view the
evidence in the light most favorable to the prevailing party and will overturn an
award only if we find it to be clearly erroneous. McNeal, 157 N.H. at 466. New
Hampshire law does not require mathematical certainty in computing damages,
but does require an indication that the award of damages was reasonable. Id.
The goal of damages in actions for breach of contract is to put the non-
breaching party in the same position it would have been in if the contract had
been fully performed. Audette v. Cummings, 165 N.H. 763, 770 (2013); cf. Otto
Misch Co. v. E.E. Davis Co., 217 N.W. 38, 41 (Mich. 1928) (stating roofer who
installed leaking roof not obliged to pay for new roof of different design and
specifications).

In this case, the trial court found that the plaintiff had contracted to
provide the owner with a roof that did not leak and was warrantied by the
installer. The contractor that the owner subsequently hired to address the
problems with the roof that the plaintiff had installed testified to his
observations of that roof, including that: (1) the plaintiff had mishandled the

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shingles; (2) the ridge vent was not installed; (3) the weather guard material
was improperly installed, such that the warranty was voided; and (4) the
original flashing had been reused, which resulted in the restored flashing
having nail holes from the previous installation. When the contractor began to
work on the roof installed by the plaintiff, he discovered that the upper
dormer’s old shingles had not been stripped, the plywood underneath them
had to be replaced, although the plaintiff had told the owner that no plywood
required replacing, and that the rafter under it needed repair. The trial court
found that the contractor was “knowledgeable in the roofing business and
credit[ed] his expert testimony.”

Based upon this evidence, the trial court found that “the only reasonable
remedy was to replace the roof” that the plaintiff had installed. This finding
was further supported by the contractor’s testimony that: (1) no roofer would
warranty repairs to a roof “[b]ecause it always tends to lead to other issues”; (2)
“[t]he best way to address a roof is to fix it from start to finish”; and (3) he saw
“just a lot of less care in the work” done by the plaintiff. The contractor
concluded that when “you have that many shortcuts taken, [you do not know]
what else is there unburied [sic].” Cf. Greenberg Realty Co. v. Cream City R &
P. Mfg. Co., 197 N.W. 815, 817 (Wisc. 1924) (stating that roofer who installed
roof and repaired multiple leaks was responsible for replacing it with new roof
when it continued to leak repeatedly).

The plaintiff argues that the proper measure of damages was the cost to
repair the multiple leaks in the roof. However, he represented to the trial court
that a roofer’s warranty is “a negotiated contractual term.” The trial court
concluded that the owner was “entitled to the benefit of his bargain with [the
plaintiff], a warrantied roof, and he could not obtain that unless he replaced
the entire roof.” The plaintiff argues that it “did not warrant that [the] roof
would remain new nor perfect for [the warranty] period, but that it’d continue
to . . . serv[e] for the purposes intended, primarily protecting the underlying
house from [the] elements” because it “was good, sound, and weatherproof for
at least nine months or more a year.” However, the trial court found, and the
record supports, that it did not serve that purpose because it leaked in
multiple places. Cf. M. W. Goodell Const. Co., Inc. v. Monadnock Skating
Club, Inc., 121 N.H. 320, 323 (1981) (applying cost of repairs as measure of
damages when roofer claimed no repairs required).

The plaintiff interprets the trial court’s order as concluding that “a leaky
roof cannot be repaired but can only be fixed by fully replacing the roof.” On
the contrary, the trial court found, on the specific facts of this case, that the
installer’s warranty for which the owner had bargained could not be obtained
without replacing the roof, in part, because of the number and variety of
problems with the roof installed by the plaintiff that were identified by the
subsequent contractor. On this record, taking the facts in the light most

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favorable to the owner, we conclude that the trial court’s damage award was
not unreasonable or clearly erroneous. See McNeal, 157 N.H. at 466.

Finally, we address whether the trial court erred by not considering
whether the owner had mitigated his damages and by not deducting $1,450
remaining due under the contract from the owner’s damages. It is a long-
standing rule that parties may not have judicial review of issues they did not
raise in the trial court. Bean v. Red Oak Prop., 151 N.H. at 250. The appealing
party has the burden on appeal to provide a record that is sufficient to decide
the issues it is raising and to demonstrate that it raised those issues in the
trial court. Id. The record before us does not reflect that the plaintiff raised
either of these issues in the trial court. Accordingly, we decline to consider
them.

Any remaining issues raised by the plaintiff in its brief either are not
sufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), or
otherwise do not warrant further discussion, see Vogel v. Vogel, 137 N.H. 321,
322 (1993).

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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