Diversified Marine Construction LLC v. Frederic E. Mason Revocable Trust

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0493, Diversified Marine Construction
LLC v. Frederic E. Mason Revocable Trust, the court on August
21, 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 appellant, Diversified Marine Construction LLC, appeals
the order of the Superior Court (Leonard, J.), following a four-day bench trial,
on its claims against the appellee, Frederic E. Mason Revocable Trust, and the
appellee’s counterclaims against the appellant, regarding a contract to
construct a lakefront retaining wall. The appellant argues that the trial court
erred in finding that: (1) it materially breached the contract; (2) the appellee
was excused from making further payments on the contract; (3) the appellee’s
experts were qualified; (4) the appellee did not fail to mitigate its damages;
(5) the appellee did not owe additional amounts for extra-contractual work; and
(6) the appellant was not entitled to interest and attorney’s fees. We affirm.

The appellant first argues that the trial court erred in finding that it
materially breached the contract by failing to install filter fabric, asserting that
its concrete substitute served the same purpose. A breach is material if: (1) a
party fails to perform a substantial part of the contract or one or more of its
essential terms or conditions; (2) the breach substantially defeats the contract’s
purpose; or (3) the breach is such that upon a reasonable interpretation of the
contract, the parties considered the breach as vital to the existence of the
contract. Gaucher v. Waterhouse, 175 N.H. 291, 296 (2022).

Whether a breach is material is a question for the trial court to determine
from the facts and circumstances of the case. Id. We will uphold the trial
court’s factual findings unless they lack evidentiary support. Loon Valley
Homeowner’s Ass’n v. Pollock, 171 N.H. 75, 78 (2018). We defer to the trial
court’s judgment on such issues as resolving conflicts in the testimony,
measuring the credibility of witnesses, and determining the weight to be given
to the evidence. Gaucher, 175 N.H. at 296. The trial court may accept or
reject, in whole or in part, whatever evidence was presented. Id.

The appellant concedes that the contract required it to build the wall in
accordance with the drawings, which showed the use of filter fabric. The
appellee’s expert specifically disputed the appellant’s claim that the concrete
barrier was an adequate substitute. The trial court was not compelled to
accept the testimony of the appellant’s principal favoring the use of concrete.
See id. We conclude that the record supports the trial court’s finding that the
appellant materially breached the contract by failing to install filter fabric.

The appellant next argues that the trial court erred in finding that it
materially breached the contract by failing to install appropriate drainage. The
contract required the appellant to “[i]nstall appropriate drainage.” The court
found that the drainage was not appropriate “[b]ased on the various sinkholes
located adjacent to the retaining wall.” We conclude that the record supports
the trial court’s finding that the appellant materially breached the contract by
failing to install appropriate drainage. We reject the appellant’s argument that
the New Hampshire Department of Environmental Services (DES) permit
requiring the property owner to provide appropriate diversion of surface water
runoff modified the contract.

The appellant next argues that the trial court erred in determining that
the appellee was excused from making the final payment due under the
contract. A material breach of contract by one party discharges the duty of
performance of the other. Gaucher, 175 N.H. at 296. Having found support for
the trial court’s findings that the appellant materially breached the contract,
we find no error in the court’s ruling that the appellee was excused from
making further payments due under the contract. See id.

The appellant next argues that the appellee’s experts were not qualified
to opine regarding the defects in its performance or the calculation of damages.
We review a trial court’s decision to admit expert testimony under our
unsustainable exercise of discretion standard. Stachulski v. Apple New
England, LLC, 171 N.H. 158, 164 (2018). The appellant objected to the expert
testimony of Ryan Baker on the basis that he lacked formal education in
engineering or architecture. On appeal, the appellant concedes that an expert
may be qualified based upon experience, but argues that Baker lacked
experience in the construction of “underwater walls specifically.” We conclude
that the appellant has failed to demonstrate that the trial court unsustainably
exercised its discretion in admitting Baker’s testimony. See id.

The trial court found Eric Buck to be qualified as an expert in landscape
architecture, stone wall construction, dry stone wall construction, and DES
permitting. The appellant objected to Buck’s testimony on the basis that, as a
consultant and planner, Buck does not perform the work himself. We conclude
that the appellant has failed to demonstrate that the trial court unsustainably
exercised its discretion in admitting Buck’s testimony. See id.

The appellant next argues that the trial court erred by not finding that
the appellee failed to mitigate its damages. A party seeking damages
occasioned by the fault of another must take all reasonable steps to lessen his
resulting loss. Greiner v. Barclay Square Commercial Condo. Owners’ Assoc.,
150 N.H. 111, 119 (2003). The appellant bears the burden of proving that the

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appellee failed to mitigate damages. Id. The court found that the appellee was
excused from any requirement that the appellant be allowed to fix the defects
because the appellant had demonstrated that it was not addressing the
problems in good faith. The record also supports the court’s finding that the
appellee’s duty to mitigate did not require it to remedy the drainage issues
promptly after the appellant failed to do so. We conclude that the record
supports the trial court’s finding that the appellant did not meet its burden to
prove that the appellee failed to mitigate its damages. See id.

The appellant next argues that the trial court erred in finding that the
appellee did not owe the appellant payment for certain items, including the
installation of sand, sod, and an additional retaining wall, that it alleges were
outside the scope of the contract. The record supports the trial court’ s finding
that these items were either part of the contract or that the appellee did not
agree to pay for them. The trial court was not compelled to accept the contrary
testimony of the appellant’s principal. See Gaucher, 175 N.H. at 296.

The appellant next argues that the trial court erred by denying its
request for interest and attorney’s fees for past due amounts, as provided in
the contract. The trial court ordered the appellee to pay the appellant for
certain work that it determined was outside the scope of the contract. We find
no error in the trial court’s decision denying the appellant’s request for interest
and attorney’s fees for work outside the scope of the contract.

Finally, the appellant argues that the trial court erred by not reaching a
similar result in this case as it did in another case involving the appellant. The
trial court correctly concluded that the other case was readily distinguishable
from this case. Accordingly, we find no error.

Affirmed.

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

Timothy A. Gudas,
Clerk

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