Kerry Brady & a. v. Ducharme Construction Management, LLC & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0194, Kerry Brady & a. v. Ducharme
Construction Management, LLC & a., the court on August 20,
2024, issued the following order:

The court has reviewed the written arguments and the record submitted on
appeal, and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The defendants, Ducharme Construction Management, LLC and Jimmy
Ducharme, appeal an order of the Superior Court (Temple, J.), issued following a
two-day bench trial, entering judgment in favor of the plaintiffs, Kerry Brady and
Carolyn Kirwan, in their action against the defendants for negligence, breach of
warranty, and breach of contract relative to certain construction work performed
on the plaintiffs’ home. The defendants challenge: (1) the award of $14,000 for
the costs associated with connecting the plaintiffs’ home to the municipal sewer
system on grounds that those costs were necessitated by the defendants’
negligence in damaging the existing septic system, and thus, that the claim was
one for negligence resulting in property damage, and (2) the award of $9,700 for
the costs associated with replacing a defective window well retaining wall
constructed by the defendants. We affirm.

The defendants first argue that the trial court erred by awarding damages
for the negligence claim relative to the sewer connection because the plaintiffs
had failed to adequately plead this claim. Based upon the record before us,
however, the defendants have not only failed to demonstrate that they adequately
raised this issue before the trial court, but they also failed to raise it in their
notice of appeal. Accordingly, this issue is not preserved for our review. See
State v. Blackmer, 149 N.H. 47, 48-49 (2003) (holding that we will not review any
issue that was not raised before the trial court and that an argument that is not
raised in a party’s notice of appeal is not preserved for appellate review).

The defendants next argue that the trial court erred by relying upon the
“Dig Safe” statute, see RSA 374:51, :55 (Supp. 2023), to establish a breach of a
duty of care under an unpled negligence per se theory. We disagree. See In the
Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (explaining that the
interpretation of a court order presents a question of law for this court). Here,
based upon our review of the trial court’s order, we conclude that the trial court
did not rely upon the “Dig Safe” statute to establish a breach of a duty of care
under a negligence per se theory. Rather, the court found that the defendants
negligently damaged the plaintiffs’ existing septic system when they excavated a
hole for a new bulkhead without knowing where the system was located, without
taking any steps to ascertain its location, and when the hole promptly began
filling with sewage that threatened to flow into the newly-remodeled basement.
The court noted that defendant Ducharme — whom the court expressly found
not to be credible — testified that the septic system was not located anywhere
near the bulkhead. The court emphasized, however, that, to the contrary, the
evidence demonstrated that the system — which had been functioning normally
prior to the excavation — was actually a mere five feet away. The court also
noted that Ducharme later acknowledged that he did not know where the system
was located, and took no steps, such as notifying “Dig Safe,” to ascertain its
location before excavating.

These findings are supported by evidence in the record. Accordingly,
although the defendants argue otherwise, we conclude that the evidence was
sufficient for the trial court to have reasonably found that the defendants
breached their duty to exercise ordinary care under the circumstances. See
Carignan v. N.H. Int’l Speedway, 151 N.H. 409, 414 (2004) (observing that
whether a defendant breached a duty of care is a question for the trier of fact);
McCabe v. Arcidy, 138 N.H. 20, 24 (1993) (observing that we defer to the trial
court’s judgment, as the trier of fact, on such issues as resolving conflicts in
testimony, measuring the credibility of witnesses, and determining the weight
assigned to testimony).

Lastly, the defendants argue that the trial court erred by awarding the
plaintiffs $9,700 for the costs associated with replacing a defective window well
retaining wall constructed by the defendants. The crux of the defendants’
argument is that the plaintiffs failed to adduce evidence that $9,700 was a fair
and reasonable cost to repair or replace the wall, and that, since “no such
evidence was introduced, it was error for the [c]ourt to award the plaintiffs
[$9,700] for the replacement of the retaining wall.” We disagree. Here, evidence
in the record demonstrates that $9,700 was the actual cost incurred by the
plaintiffs to replace the “structurally deficient” retaining wall constructed by the
defendants. Additionally, the plaintiffs elicited expert testimony at trial that the
“ideal” solution would have cost approximately $15,000, and that the other lower
estimates emphasized by the defendants represented what the expert described
as less-than-ideal or temporary repairs. Moreover, the expert also produced a
report, introduced into evidence, which the defendants have failed to provide to
this court for our review. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004) (holding that “[i]t is the burden of the appealing party . . . to provide this
court with a record sufficient to decide [the] issues on appeal”). Thus, “we must
assume that the evidence was sufficient to support the result reached by the trial

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court.” Id. Accordingly, we conclude that the trial court did not err by awarding
the plaintiffs $9,700 for the costs associated with replacing the defective retaining
wall.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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