2017 Mass. App. Div. 160

May 26, 2017 - October 31, 2017

Appellate Division Northern District

Court Below: District Court, Ayer Division

Present: Coven, P.J., Crane & Nestor, JJ.

Russell S. Channen for the plaintiff.

Jonas A. Jacobson for the defendant.

CRANE, J. The plaintiff, Rock Built Restoration, LLC ("Rock Built"), is a flooring contractor that provided labor and materials to repair water damage caused by the failure of a hot water heater in the basement of the home of defendant Alan Deacon ("Deacon"). Deacon is also a painting contractor. After a jury-waived trial, the court found for the plaintiff and awarded it $10,757.66. The court also found for the plaintiff on all of the defendant's counterclaims for negligence, breach of contract, unjust enrichment, and violation of G.L. c. 93A. The defendant appeals.

Deacon asserts that it was error: 1) to find that Deacon failed to mitigate damages when he filed his counterclaim for breach of warranty within the warranty period; 2) to find that it was disingenuous of Deacon to seek to avail himself of the provisions of G.L. c. 142A and G.L. c. 93A; 3) to require that Deacon provide evidence of actual damages arising from the absence of any provisions of the contract set forth in G.L. c. 142A and the regulations pursuant thereto; and 4) to find that Rock Built's installation of certain flooring did not violate G.L. c. 93A.

1. Factual background. We summarize the findings of the trial court that are relevant to this appeal.

Deacon's home, at 174 Russell Street, Littleton, Massachusetts, was damaged by water that leaked from a hot water heater. The repairs required replacement of the wood floor in part of the basement and a cedar closet as well as drywall and painting. The cost of all of these repairs was included in whatever settlement Deacon reached with his homeowner's insurer before any work was commenced.

Deacon contacted Andrew Radar ("Radar"), a manager of Rock Built, seeking a proposal to perform the necessary repairs. Radar was experienced in the restoration of properties damaged by water. He also held a construction supervisor's license and a home improvement contractor's license, both issued by the Commonwealth of Massachusetts. Deacon also requested that: 1) the proposal include a price for painting and flooring; 2) that Rock Built permit Deacon to replace the drywall and paint it; and 3) that Rock Built grant Deacon a credit for this work against whatever the total charge Rock Built would present to Deacon, so that Deacon could present the full price to his insurer or lender.

Radar e-mailed written proposals to Deacon. Deacon also met with David Smolag ("Smolag") at his home to review what flooring material would be installed. Smolag was an experienced flooring contractor and employed by Messina Flooring as a subcontractor for Rock Built. Smolag told Deacon that the damaged flooring with foam

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attached was no longer available. He told Deacon that laminate flooring with a foam vapor underlayment pad would provide the same water barrier and acoustical performance. The parties then exchanged a series of e-mails to resolve details on the type of new flooring material that was to be installed.

On July 26, 2014, Deacon e-mailed Radar, "Go with Big Bend Oak!" Radar then sent Deacon an e-mail on August 8, 2014, with two contracts and two estimates. They were admitted as exhibits, and the only difference between them was whether replacement of flooring in Deacon's home office was to be included or not. On August 12, 2014, Deacon e-mailed Radar, "Okay allset! [sic]" Rock Built stated in its agreement, "All work will be to the highest standard. Rock Built will warranty all labor for one year after completion. The work estimate 2014-06-23-1314 will be done for the amount of [$13,475.39] to be paid as insurance company distributes funds and full amount to be paid upon completion."

Rock Built commenced the work on time, and except for the cedar closet floor, the work was substantially complete by August 19, 2014. Radar then asked Deacon when he might come by to pick up a check. Deacon responded that Radar would have to provide him with certain documents first so that the bank that held a mortgage on his home, and which was a payee on the insurance check, would sign the check. Radar promptly provided all of these documents except a mechanic's lien affidavit. On September 23, 2014, after inquiries by Deacon concerning the quality of the materials, Radar provided price comparisons and assertions about the quality of the replacement material. Radar and Smolag also responded that the installed material and underlayment were superior to the damaged flooring that was no longer available. On September 25, 2014, Radar provided Deacon the mechanic's lien affidavit, and Deacon obtained his funds. Until this action was commenced, Deacon never made any further complaint to Radar concerning the quality of the material or the installation of the flooring and offered no explanation for his failure to make any payment to Rock Built.

The trial court awarded Rock Built $10,757.66, after deducting $1,600.00 from the agreed price for the cost to repair buckling to the installed floor caused by lack of separation at the joints and ends, and $374.24 to install flooring in the cedar closet. It also found that the parties agreed to a credit to Deacon of $2,100.00 for performing the painting and replacing drywall instead of replacing Deacon's office floor.

2. Standard of review. The trial judge made findings and rulings in response to the parties' requests for the same made pursuant to Mass. R. Civ. P. 52(c). We accept the judge's findings of fact as true unless they are "clearly erroneous." Kendall v. Selvaggio, 413 Mass. 619, 620 (1992). "We will uphold her findings unless we have a 'definite and firm conviction that a mistake has been committed.' Kendall v. Selvaggio, supra at 620-621. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997), quoting T.L. Edwards, Inc. v. Fields, 371 Mass. 895, 896 (1976) ('we do not "review questions of fact found by the judge, where such findings are supported" on any reasonable view of the evidence, including all rational inferences of which it was susceptible' [emphasis added]). 'It is the appellant's burden to show that a finding of fact is clearly erroneous.' Demoulas v. Demoulas Super Mkts., Inc., supra at 509. It is not sufficient to challenge the judge's findings by reciting other evidence in the record that she may not have credited." Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637 (2010). The clearly erroneous standard "does not protect findings of

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fact or conclusions based on incorrect legal standards." Kendall, supra at 621. See also Barboza v. McLeod, 447 Mass. 468, 469 (2006).

3. Discussion.

(a) Breach of warranty. Deacon contends that it was error not to find that Rock Built violated G.L. c. 93A by breaching its express warranty for all labor for one year and by substituting inferior flooring and underlayment material. The trial judge properly found that the parties came to an agreement as to the specifics of the flooring and the underlayment through an exchange of e-mails. The credible evidence supports the trial court's finding that the work was performed according to the specifications. Smolag and Deacon and his expert witness offered conflicting opinions about the quality of the materials, particularly the underlayment. This produced a question of credibility that was properly resolved by the trial judge. Buster v. George W. Moore, Inc., 438 Mass. 635, 642 (2003).

Rock Built gave an express warranty for all labor for one year. The trial court found that there was buckling because of insufficient spacing at the ends and the edges of the floor planks. It also found that Deacon did not notify Rock Built of this condition until after Deacon filed his counterclaim in this action. Further, it found that this condition could have been corrected if Deacon had given timely notification to Rock Built. It gave Deacon credit for the cost of making this repair in the amount of $1,600.00. All of these findings were supported by the evidence. The credit for this repair amounts to an award for damages to Deacon for breach of warranty for defective installation during the ensuing year.

Deacon claims that this breach of warranty was a violation of G.L. c. 93A. Deacon asserted that other alleged conduct by Rock Built violated G.L. c. 93A in its requests for findings and pleadings. However, it never argued to the trial court that any breach of warranty for defective installation violated G.L. c. 93A. Accordingly, we take no action on this argument. Royal Indem. Co. v. Blakely, 372 Mass. 86, 87-88 (1977).

(b) Violation of G.L. c. 142A and G.L. c. 93A. Deacon asserts that it was error to rule that Deacon was not entitled to the protection of G.L. c. 142A because he was a painting contractor and engaged in performing the drywall replacement and painting that Rock Built was required to provide at Deacon's home under the contract. Deacon was entitled to the same protection as any homeowner who contracts for improvements to his home and arranges to do additional work on his own. Rock Built does not seek to excuse its performance because of any work that Deacon did, and Deacon's objection to Rock Built's work does not involve any of the work that Deacon performed. The fact that Deacon was a painting contractor, as opposed to a homeowner with no contracting background, does not prevent Deacon from obtaining the protection of G.L. c. 142A for improvements performed in his home.

Still, notwithstanding that G.L. c. 142A is applicable, there is no evidence in the record to establish that Deacon suffered any loss or injury as a result of the violations of G.L. c. 142A that he alleges. Without a causal relationship between the alleged violations and any loss or injury, Deacon is not entitled to any award against Rock Built pursuant to G.L. c. 142A. Williams v. Perrault, 2011 Mass. App. Div. 180, 183; DeBettencourt v. Aronson, 2011 Mass. App. Div. 27, 29. "A misrepresentation of legal rights in a consumer contract may indeed be per se 'unfair' or 'deceptive' under § 2 of c. 93A. . . . But a plaintiff seeking a remedy under c. 93A, § 9, must demonstrate that even a per se deception caused a loss." Hershenow v. Enterprise Rent-A-Car

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Co. of Boston, Inc., 445 Mass. 790, 798-799 (2006). We apply the same requirement of causation between any per se violation of G.L. c. 142A and loss as is set forth in Hershenow for claims under G.L. c. 93A. This is appropriate because any homeowner seeking relief for violation of G.L. c. 142A does so under G.L. c. 93A, since G.L. c. 142A authorized homeowners to obtain relief under G.L. c. 93A, and did not create any new causes of action.

Deacon argues that Rock Built violated G.L. c. 142A because there was dispute concerning whether replacing the office floor was part of the work that Rock Built was to perform. It asserts that the description of the work that Rock Built provided was not sufficient to satisfy the provisions of G.L. c. 142A, § 2(a)(4) & (5), and that a more sufficient description would have avoided a dispute. This argument fails based upon the documents and e-mail exchanges of the parties and their testimony. The trial court found that they did not agree that Rock Built would replace the office floor, but instead that Deacon would receive a credit of $2,100.00 for performing the painting and drywall installation. Where Rock Built's interpretation of the contract prevailed over Deacon's on this provision, the contract terms were adequately specific to satisfy G.L. c. 142A. Deacon's contention that Rock Built abandoned the project by not replacing the office floor fails since the court found that the parties did not include that work in the contract. The only work that Rock Built did not complete was installing the floor for the cedar closet. The trial court excused Rock Built from completing this work under the circumstances where Deacon had paid Rock Built nothing without providing any reason, notwithstanding that the work was substantially complete. A contractor that abandons or fails to perform a contract does not violate G.L. c. 142A when it has justification for doing so, G.L. c. 142A, § 17(2), such as Rock Built had here.

Last, Deacon claims that Rock Built violated G.L. c. 142A because the writings between the parties did not include notice of a three-day right of rescission, right to claim arbitration, and did not include a home improvement contractor and building supervisor's license numbers and other identifying information about Rock Built. Deacon never sought to rescind or to arbitrate. Radar held both of the licenses, which were in force at the time the work was performed. For these and all of the other violations of G.L. c. 142A, Deacon failed to provide any evidence that these caused him any injury. Hershenow, supra. Consequently, any error by the trial court concerning the applicability of G.L. c. 142A under these circumstances was harmless. Where Deacon failed to demonstrate that any violation of G.L. c. 142A caused him any injury, Deacon's argument that a violation of G.L. c. 142A requires the court to find a violation of G.L. c. 93A also fails.

(c) Attorney's fees. Under all of the circumstances, the trial court was not required to find that Rock Built violated G.L. c. 93A, and a finding for Rock Built on Deacon's claims for violation of G.L. c. 93A was warranted. Consequently, the trial court correctly denied Deacon's request for fees under both G.L. c. 142A and G.L. c. 93A. For the foregoing reasons, this Division also denies Deacon's request for appellate attorney's fees. Rock Built also seeks an award of its attorney's fees. That request is also denied because there is no statutory or contractual basis for any such award.

Judgment affirmed.

So ordered.