Paul G. Ayers v. B&B Contractors, L.L.C. ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
PAUL G. AYERS, THE AYERS :
COMPANY II LLC, and :
DYNETTE MERRITT, : C.A. No.: K22C-05-016 RLG
:
Plaintiffs, :
:
v. :
:
B&B CONTRACTORS, L.L.C. :
and RAHMEL TOUSSAINT, :
:
Defendants. :
ORDER
Submitted: November 1, 2023
Decided: December 15, 2023
Plaintiffs Paul G. Ayers, The Ayers Company II LLC, and Dynette Merritt
(“Plaintiffs”) obtained an entry of default judgment against Defendants B&B
Contractors, L.L.C. and Rahmel Toussaint (“Defendants”) on September 9, 2022.
The Court subsequently held an inquisition hearing on July 28, 2023 to determine
the amount of damages. Plaintiff Merritt and Ms. Merritt’s counsel were present at
the hearing, and represented the interest of all Plaintiffs. No appearance was made
by Defendants.
1
“After a default judgment is ordered, an inquisition hearing is held to
determine damages.”1 “The Court’s findings on damages are based on a
preponderance of the evidence,” meaning “the side on which the greater weight of
the evidence is found.”2 “[T]he sole focus of inquisition hearings is the amount of
damages owed to the plaintiff, which is determined by the … judge.”3
The Court heard the testimony of Plaintiff Merritt and reviewed evidence
submitted by Plaintiffs’ counsel at the inquisition hearing and in supplemental
filings. Based upon that evidence, it appears to the Court that Plaintiffs are entitled
to $62,140.64 in damages for money paid to Defendants for work not completed,
loss of rental income, and attorney’s fees. This total award is further outlined below.
A. Incomplete Renovation Work
The Court finds by a preponderance of the evidence that Plaintiffs paid
Defendants $36,787.99 for work that Defendants failed to complete, and that
Defendants failed to refund Plaintiffs that sum of money. Ms. Merritt testified that
she initially made payments directly to B&B Contractors, L.L.C. (“B&B”) for work
to be completed at 34 North Governors Avenue in Dover.4 After learning that Mr.
1
Patton v. Yancey, 2014 WL 4674600, at *1 (Del. Super. Sept. 22, 2014).
2
Jagger v. Schiavello, 93 A.3d 656, 659 (Del. Super. 2014)(citation omitted).
3
Id.4
Inquisition Hearing Tr. at 8.
2
Toussaint failed to pay his employees with this prepayment, which caused those
employees not to show up for work, Ms. Merritt requested the employees send her
their hours directly.5 Ms. Merritt stated that she would have those hours approved
by Mr. Toussaint before issuing checks directly to Mr. Toussaint’s employees.6
Plaintiffs submitted into evidence a “Contract Termination Agreement,” signed by
Mr. Toussaint on behalf of Defendants.7 That agreement outlines that “[t]o date[,]
Ayers has paid $36,787.99 to B&B or its workers for work on the property.” 8
Defendants have not participated in this litigation at any point. Therefore, Plaintiffs’
assertion of $36,787.99 in damages for incomplete renovation work stands
unrebutted.
B. Loss of Rental Income
The Court further finds that, based in part upon the rent previously generated
by the property, Defendants’ failure to complete the renovations deprived Plaintiffs
of $18,550.00 in rental income. When Plaintiffs contracted with Defendants,
Plaintiffs believed the renovations would be completed by the end of 2021.9 By
5
Id.6
Id.; see also Pls.’ Ex. 2 (a worklog submitted by Defendants’ employees, which Plaintiffs
reviewed before issuing checks directly to those employees).
7
Pls.’ Ex 5.
8
Id.; see also Pls.’ Ex. 3 (copies of the checks written by Plaintiffs).
9
Inquisition Hearing Tr. at 7.
3
October 2021, Plaintiffs determined Defendants would not complete the renovations
within that time frame.10 Plaintiffs subsequently hired a new contractor in February
2022, and expected the job to take another six months as Defendants’ work needed
to be redone.11 Had Defendants completed the work on the schedule originally
contemplated by Plaintiffs, the property would have been fit for rental in January
2022.
By the time Plaintiffs hired the second contractor, the new estimated
completion date was July 2022. Ultimately, the second contractor also failed to
complete the work timely and satisfactorily, resulting in further delays.12 The Court
will not hold Defendants liable for the failure of the second contractor to complete
the work in the revised projected time frame. Accordingly, the Court finds the
Plaintiffs entitled to seven months of lost rent, which includes the months from
Defendants’ target completion date to the second contractor’s target completion
data, at a rate of $2,650.00 per month.13
10
Id. at 26.
11
Id.
12
Id. at 27-29.
13
Id. at 20 (The monthly rate of $2,650.00 was provided to the Court by Plaintiffs. After a careful
review of prior rental income, pictures demonstrating the improved quality of the property after
the renovations were completed, and Plaintiffs’ current rental income, the Court finds that
$2,650.00 accurately reflects Plaintiffs’ monthly rental income loss.).
4
C. Attorney’s Fees
Additionally, the Court finds an award of attorney’s fees of $6,802.65
appropriate. The record reflects that Defendants took Plaintiffs’ money without
completing the agreed-upon work.14 Defendants improperly converted trust funds
and repeatedly misrepresented the truth to Plaintiffs.15 Defendants have not
participated in these proceedings, and Plaintiff Merritt represented that Defendant
Toussaint fled Delaware with any remaining funds.16
“An award of attorney’s fees is justified if the Court concludes that the cost
of the litigation was increased by the bad faith conduct of a party.”17 By a
preponderance of the evidence, the Court finds that Defendants acted in bad faith.
The Court concludes Defendants’ bad faith actions, both before and after litigation
commenced, increased the cost of litigation.
D. Conclusion
Therefore, Defendants are ordered to pay Plaintiffs damages in the amount of
$62,140.64, as well as costs and interest accruing at the legal rate after the date of
judgment.
14
Id. at 11.
15
D.I. 25 at 1-2.
16
Id.
17
Cabrera v. Hurtado, 2008 WL 3413330, at *3 (Del. Super. May 20, 2008) (citing Slawik v. State,
480 A.2d 636, 639 (Del. 1984)).
5
IT IS SO ORDERED.
RLG/ds
Sent via File & ServeXpress and U.S. Mail
oc: Prothonotary
James J. Woods, Jr., Esquire
Mr. Rahmel Toussaint
6