Thomas Wierum d.b.a. Prime Builders v Ron Lefebvre
| Jurisdiction | Belize |
| Judge | Chabot, J. |
| Judgment Date | 06 September 2024 |
| Court | Supreme Court (Belize) |
| Year | 2024 |
| Docket Number | CLAIM No. CV 134 of 2017 |
CLAIM No. CV 134 of 2017
IN THE SENIOR COURTS OF BELIZE
IN THE HIGH COURT OF BELIZE
E. Andrew Marshalleck SC for the claimant
Leeroy Banner for the defendant
On 19 th April 2009, the parties entered into a contract for the construction of a house at No. 8 Olde Mill, Cayo District, Belize. The house was built, but the final invoices were never paid. Mr. Wierum claims BZ$79,481.50 (US$39,740.75) as the balance due to him pursuant to the terms of the contract. Mr. Lefebvre denies owing Mr. Wierum these sums because he fired him in or about December 2010 as a result of his poor, sub-standard workmanship and uncompleted work. Mr. Lefebvre counterclaims BZ$103,196.75 in special damages for work done or to be done to remedy the substandard or uncompleted work.
For the reasons outlined in this judgment, I find in favour of Mr. Wierum and order Mr. Lefebvre to pay Mr. Wierum the sum of BZ$79,481.50 (US$39,740.75), minus BZ$900.00, together with costs and interest.
The following issues arise in the claim:
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1. Did Mr. Lefebvre fire Mr. Wierum in or about December 2010?
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2. Did Mr. Wierum deliver sub-standard and/or uncompleted work to Mr. Lefebvre?
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a. The roof.
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b. The roof line.
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c. The soffits.
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d. Vapour barriers.
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e. The septic tank.
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f. The tub in the girls' bathroom.
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g. The tiles in the girls' bathroom.
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h. Windows in the kitchen.
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i. Drywall tape on the joints and corners.
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j. Electrical wires.
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3. Did Mr. Wierum charge Mr. Lefebvre for alterations done without Mr. Lefebvre's request or approval?
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4. Is Mr. Lefebvre entitled to special damages on the counterclaim?
The evidence does not support that Mr. Wierum was fired by Mr. Lefebvre in or about December 2010. Mr. Lefebvre's evidence as to why he fired Mr. Wierum is inconsistent. In cross-examination, Mr. Lefebvre indicated that he fired Mr. Wierum because three workers fell through ceilings during the construction process and he had “had enough”. In submissions, he made no mention of those workers falling through ceilings, but alleged that Mr. Wierum was fired because the roof was leaking and no septic tank had been installed. Despite stating in his witness statement that “Bob [Langlois] completed my house on February 13 th, 2011 as I have pictures of the house being completed and they are dated February 13 th, 2011”, no pictures were attached to Mr. Lefebvre's witness statement.
I find that the house was delivered by Mr. Wierum to Mr. Lefebvre on 13 th April 2011, 5 months after Mr. Wierum had allegedly been fired. Had Mr. Wierum been fired in December 2010, he would not have continued working on the house in 2011. Mr. Wierum provided evidence of invoices generated and paid for supplies ordered and work done between January and April 2011. He would also not have been at the house on 13 th April 2011. Mr. Noel Henriquez testified that he was at the house on 13 th April 2011 and witnessed Mr. Wierum giving Mr. Lefebvre the final invoice for the work.
Despite stating that Mr. Bob Langlois performed a lot of work on behalf of Mr. Lefebvre to finish the house, including constructing the septic tank and drain field, building steps off the patio, and purchasing and installing the attic access ladder, Mr. Lefebvre did not call Mr. Langlois as a witness in this matter. Similarly, Mr. Lefebvre did not call as a witness Mr. Sam Asencio, who redid the soffits, inspected the roof, and caulked the seams of the roof, or Mr. Al Langlois who Mr. Lefebvre asked to drive by the house every day to check on the progress. The only witness on behalf of the defence is Mr. Lefebvre himself. I draw an adverse inference from the fact that crucial witnesses to Mr. Lefebvre's counterclaim were not called as witnesses in this matter.
Mr. Wierum filed this claim seeking payment for work done under the 19 th April 2009 contract. In his defence and counterclaim, Mr. Lefebvre denies owing any money to Mr. Wierum, and claims special damages on the ground that a number of components of the house were not properly built or installed by Mr. Wierum. Mr. Lefebvre bears the evidentiary burden of proving the construction defects of which he complains.
One of the main issues in this claim is whether the roof installed by Mr. Wierum on the house was leaking, and whether the leaks were caused by sub-standard workmanship on the part of Mr. Wierum.
Mr. Lefebvre alleges that during construction, the roof was leaking to the point where he had to place buckets in the attic and empty them every six hours or so. As a result of these leaks, Mr. Wierum had to repaint the ceiling a second time due to water stains. After the house was completed, the leaks continued which resulted in the soffits becoming engorged with water and falling off the house. Mr. Lefebvre hired three separate contractors to inspect the roof. Two of these contractors recommended replacing the entire roof. Mr. Lefebvre hired Mr. Asencio to caulk each and every seam of the zinc with 100% silicone. This resulted in the leaks stopping but, according to Mr. Lefebvre, this is “not a fix or solution, it is a rubber patch for now”.
Mr. Wierum alleges that all work was completed in a workmanlike manner according to standard practices. In cross-examination, he explained that during construction, there is a period of time between the installation of the roof and that of the drywall which gives the crew an opportunity to notice leaks. The crew would then fix the leaks before continuing on with the installation of the drywall. Mr. Wierum testified that he followed this process in this case. He further testified that between the time his crew fixed the few leaks they had observed and the delivery of the house, there were no more leaks. Mr. Wierum denied that the ceiling was repainted to hide water stains. According to Mr. Wierum, the ceiling was repainted because a worker put his foot through the ceiling when he slipped and fell from a beam.
A joint expert was appointed by the court to inspect the house and opine on the issues raised in this claim. The expert, Mr. Juan A. Polanco, an architect, inspected the property on 15 th February 2019. It is notable that the inspection took place some 8 years after the completion of the house. Both Mr. Wierum and Mr. Lefebvre were present for the inspection.
Generally, Mr. Polanco opined that “workmanship overall was to acceptable standards with exception of the roof sheeting installation”. In relation to the roof, Mr. Polanco noted as follows:
As per inspection date it was obvious that there have been several leaks on the roof. We could not ascertain at the time what remedy had been done to date or whether the problem has been solved. We noted several points where the glare of the outside would be visible through the seams of the roof sheeting.
He also noted that “sheetrock ceiling shows several points of water damaged ( sic)”. Mr. Polanco further stated that:
It is important to note that inspection was done on a structure over 8 years old and we cannot ascertain if any defects to this date are brought forward from construction date or because of lack of maintenance. I know however, that a roof of this nature would not be needing any maintenance at this age.
Again, later in his report Mr. Polanco noted that a roof of this age should not be leaking, stating:
Roof sheeting installation: I do not know the specific installation requirements and specifications of this particular type of roofing as there are different manufacturers in the country. What I do know is that despite the anchoring details, there should not have been water leakages at such an early stage.
Both parties had an opportunity to ask follow-up questions to Mr. Polanco. Mr. Polanco opined that it is possible that the leaks he observed could have happened several years after completion of the house. When asked where, on a standing seam metal roof with no roofing fasteners penetrating the surface, a leak likely occurred, Mr. Polanco responded as follows:
It is more likely the leaks would occur on the ridge caps, however it can also occur if the panel was not snapped properly into place. A ridge cap is easy to repair and replaceable.
Mr. Polanco could however not opine on the cost of replacing both the hip ridge and ridge caps of the roof.
According to Mr. Wierum, when he attended the inspection with Mr. Polanco, he could see evidence that someone had made modifications to the roof, including “prying the roof open”. Mr. Wierum admitted that the construction materials for the roof are expected to last at least 15 years.
I find that Mr. Lefebvre has proven, on a balance of probabilities, that the roof installed by Mr. Wierum on the house leaked after completion of the construction on 13 th April 2011. That the roof has leaked is supported by the testimony of Mr. Lefebvre, pictures entered into evidence showing water stains on the ceiling, and the report of Mr. Polanco. It is also admitted by Mr. Wierum in the Pre-Trial Memorandum. I find it is more likely than not that the leaks were caused by sub-standard workmanship in the installation of the roof sheeting and/or the ridge caps. The evidence is that a roof of the type installed on Mr. Lefebvre's house should not leak and should not need any maintenance within 15 years of its installation. As for Mr. Wierum's allegation that someone has made modifications to the roof by “prying it open”, I find this allegation to not be supported by any evidence, including not being mentioned in the expert report.
I do not find, however, that Mr. Wierum had knowledge of the issue at...
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