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Ward v. Melis

Other Lower Courts

August 25, 2004

Edward M. Ward, III and Emw Construction LLC, Plaintiffs,
v.
Dennis Melis and Theresa Melis, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Sobo & Sobo, LLP (Gary M. Sobo, Esq., of counsel) Attorneys for Plaintiffs

Joseph E. Ruyack III, Esq. Attorney for Defendants

OPINION

Burton Ledina, J.

For the purpose of this decision, plaintiffs seek judgment in the amount of five thousand ($5,000.00) dollars pursuant to the terms of an agreement between the parties.[1] Plaintiff (unless otherwise noted, reference to "plaintiff" hereinafter refers to the individual plaintiff) had contracted to sell to defendants a parcel of real property for a purchase price of $46,500. A rider to the contract provided that the plaintiffs would build the foundation for the home to be built on the property for $14,000.00. In the event the defendants had someone other than plaintiff company construct the foundation, the price for the property would be an additional $5,000.00. The plaintiffs claim that the foundation was put in by someone other than plaintiff company, and that they are therefore owed $5,000.00.

The defendants contend that the contract is unenforceable as a matter of law, and that the plaintiffs are barred by laches as well as equitable estoppel from proceeding with this suit. Defendants also counterclaim, alleging a cause of action against the plaintiffs for abuse of process, claiming that they were damaged by reason of the plaintiffs having improperly filed a notice of pendency herein. The damages are based upon the extra charges and expenses incurred because of the delay in construction occasioned by notice of pendency having been improperly filed. Defendants also seek the imposition of sanctions against plaintiffs' counsel for the improper filing of the notice of pendency.

Findings of fact

The defendants were interested in purchasing a parcel of land for the purpose of building a home. A mutual acquaintance, Gary Knebel, referred them to plaintiff Ward, the sole owner, officer and shareholder of plaintiff EMW Construction LLC. The parties contracted for Ward to sell the defendants parcel 1 of land described on a subdivision map entitled "Subdivision of Lands of Ward." The parcel was located in a wooded area two lots distant behind the location of Ward's own home. The original asking price for the property was $55,000.00 but negotiations brought that down to $46,500.00 with the aforementioned added contingent amount of $5,000.00. The agreement, prepared on a construction proposal form (plaintiff's Exhibit "1"), was written and signed. Its salient operative provisions are as follows:

Lot 1 of Ward subdivision 72-1-7.1 consisting of 6.89 Ac. For the sale of as is with map of House Location and septic desighn(sic). deposit Refundable only if buyer is not able to get Bank Loan.

Sale of Land only sold with agreement to Rider No.1.

We propose hereby to furnish material and labor complete in accordance with above specifications, for the sum of: Payment to be made as follows: 1000.00 Deposit & 45,500 within 3 weeks dollars ($46,500.00)

Fourty(sic) six thousand six hundred & 00/100 Rider #1 Sale of land contingint(sic) on foundation only Built by EMW Const. LLC. With no Responsibities(sic) of Excavation, Water proofing or Foundation Drwgs(sic). If purchaser has another company do said foundation, a Additional cost of the Total sale of the Land of section Lot 72-1-7.1 will be a cost of 5,000.00 and if not paid by purchaser their(sic) will be a lein(sic) on the land consisting of these items. foundation will have 9' walls, frost wall at Gable end of home, 3 36" Basement windows X 16" high with floor of 4" thick with a to(sic) total of 8" thick walls with 2 #4 Rebar Horizontal in Bottom & Top of walls and 2 #4 Rebar in footing consisting of ...


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