Appeals court hears dispute over which contract governs post-fire home reconstruction

An appellate panel on June 1 heard arguments in Curtis v. Saba over which written agreement governs reconstruction work after a Sept. 1, 2014 house fire, a determination that the homeowner’s attorney said is threshold to whether the homeowner’s claims can survive.

Attorney Walter Jers, arguing for Dawn Deair Curtis and Gerald Deair, told the court the central issue is whether the parties were bound by an initial May 2015 contract that incorporated plans, a disbursement schedule and other documents or by a later June 2015 agreement. Jers said the trial court erred by resolving the summary-judgment motion despite, in his words, “The record reveals that there are genuine disputes of material fact regarding the party's intent to be bound by the initial contract,” a passage he quoted from the trial court decision.

“If the initial contract is the valid operative contract … the modification that was done sometime after that was a modification of that contract for which there was no consideration,” Jers told the panel, arguing the June document and later modification increased cost (about $30,000 more) and delayed completion while offering Curtis no added benefit.

The panel repeatedly pressed counsel on whether the June agreement could be treated as an independent, enforceable contract. Jers argued that under common-law principles a modification of an existing, binding agreement requires separate consideration to be binding: “There has to be some benefit,” he said, describing scenarios in which an owner receives a clear new benefit (for example, a new garage) that would supply consideration for a change in price or scope.

Opposing counsel (Laughlin) told the court the June agreement and subsequent signed modification were supported by consideration and by the parties’ performance. Laughlin said the documents reflected changed plans and timelines and that the parties performed under a $274,000 price, arguing the later documents could be enforced on their own terms. “Both parties subsequently signed the modification which is also supported by consideration,” Laughlin said, and he characterized the record as containing correspondence, pay distributions and plan revisions that support the contractor’s claims of a valid agreement.

The panel also heard testimony cited by counsel about alleged construction defects (including absence of an air‑conditioning installation called for in contract documents, unfinished basement egress, and a lack of final electrical and building inspections), which counsel Jers used to argue that performance under the allegedly operative contract was deficient.

No decision was announced from the bench; the case was submitted after argument. A ruling will determine whether factual disputes about the May 2015 agreement require a factfinder or whether the June documents can be enforced as a replacement agreement.

The appeals court did not set a date for its decision at the close of oral argument.