C & J HUNT CONSTRUCTION SERVICES, LLC and another [Note 1] v. ERNEST TOMASCIK and another [Note 2]

CUNIS, J. This breach of contract action arose from a home renovation project gone awry. In accord with the contract itself and G.L. c. 142A, the statute that regulates home improvement contractors, the homeowners, Ernest and Deborah Tomascik ("the Tomasciks"), filed a request for arbitration services to resolve a dispute with their contractor, C & J Hunt Construction Services, LLC ("Hunt"). [Note 3] Hunt filed a

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counterclaim. [Note 4] An arbitrator awarded $39,265.54 to the Tomasciks and $14,388.14 to Hunt, resulting in a net award to the Tomasciks of $24,877.40. [Note 5] Hunt appealed the arbitrator's decision to the District Court for a trial de novo. [Note 6] The Tomasciks filed an answer and counterclaim, including a claim for multiple damages under G.L. c. 93A -- a claim that they had not brought, but could have, in their initial arbitration request. [Note 7] After a jury-waived trial, a District Court judge found in favor of Hunt in the amount of $24,483.91.

The Tomasciks filed this appeal, in which they argue that the District Court judge failed to address Hunt's conduct under G.L. c. 142A and G.L. c. 93A; that the judge erred in rejecting their G.L. c. 93A counterclaim on the ground that the Tomasciks failed to serve Hunt with a demand letter; that the judge erred in not ruling on their requested rulings of law; that the judge failed to consider the prima facie effect of

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the arbitrator's decision; that the judge erred in granting Hunt equitable relief; and that the judge erroneously awarded damages to a nonparty subcontractor, Saltwater Woodworks, LLC, a separate company owned by Hunt.

Although we affirm judgment in favor of Hunt, we agree that the total amount awarded by the trial judge included an amount owed to Saltwater Woodworks, LLC, a nonparty subcontractor, and thus we reduce the damages award to Hunt by $16,072.

Background. After months of discussions, on March 29, 2015, Hunt and the Tomasciks executed a contract for Hunt to remodel significant portions of the Tomasciks' home. The contract provided that the Tomasciks pay for the costs of the construction, wages, plus 10% for materials and 12.5% "cost plus" for subcontractors, an amount designated as overhead and profit for Hunt. The total estimated cost of the project was $119,474.50.

The contract broadly defined the scope of the project. The Tomasciks decided on the details, such as the types of windows, doors, and other construction materials to be used, and the price would be adjusted (usually upward) based upon their selections. Also excluded from this estimate was any price increases resulting from change orders. The contract provided that any change orders were to be reduced to writing and signed by the parties. In the event the parties were not readily available to sign change orders, such orders could be authorized verbally or by e-mail, with written documentation following later. The Tomasciks hoped to have the project done by the date of a family wedding in August of 2015, part of which was scheduled to take place at their home.

Not long after the contract was signed, the Tomasciks removed roofing and deck work from the scope of the project, thereby reducing the cost to $110,044.50, although no change order was executed by the parties. Thereafter, from the very beginning of the project, both Hunt and the Tomasciks generally ignored the requirement for change orders to be in writing, and therein lies the gist of what caused the breakdown in the business relationship between the parties. As the work progressed, the parties had numerous discussions about the project, during which Mrs. Tomascik inevitably asked for changes and additions to the original plan. These changes to the scope of the project -- and there were many -- along with billing and payments, were tracked by invoices from Hunt to the Tomasciks. Whether the Tomasciks were aware that such changes would add significantly to the price of the project is less than certain. But what is certain is that Mrs. Tomascik either requested or approved such changes and additions, significantly driving up the cost ofthe project. Moreover, the Tomasciks did pay an additional $35,000 to Hunt in August, indicating their awareness that the project was going to cost more than the original estimated contract price. Mr. Tomascik testified that his wife was far more invested in the project than he was; he merely paid the bills to Hunt and had little or no say in the details of the project.

At their final meeting in September, Hunt requested another $32,000 progress payment. The Tomasciks agreed to pay only $9,000. Hunt declined this offer, and the Tomasciks fired him from the job. By this time, the cost ofthe project had ballooned to $163,439.22. The Tomasciks paid other contractors a total of $18,279.41 to complete the unfinished work at their home.

In their posttrial request for findings of fact and rulings of law, the Tomasciks asked the trial judge to affirm the arbitrator's award of $24,877.40, and to award multiple damages and attorney's fees pursuant to G.L. c. 93A. Hunt asked the judge to set

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aside the arbitrator's decision and to award him $26,183.19, an amount reflecting the balance he claimed the Tomasciks owed him for completed work-­$24,483.19 -- plus an additional $1,700 in profit he would have realized if the project had been completed.

The trial judge concluded that the parties had executed a binding "cost plus" contract -- as opposed to a fixed-price contract -- that expressly required the Tomasciks to pay for the costs of construction, delivery and handling costs, wages, plus 10% for materials and 12.5% for subcontractors (designated as overhead and profit for Hunt). He concluded that Hunt substantially performed the contract prior to his dismissal from the job. He further found that the Tomasciks' testimony regarding the $18,279.41 cost of remediation for unfinished or alleged subpar work was devoid of any foundation as to their qualifications to testify as experts in such matters, or the reasonableness or necessity of this cost.

Discussion. At the outset, we note that the trial judge issued detailed findings and rulings, numbering ten pages, which we will not disturb absent clear error. Porcaro v. O'Rourke, 2008 Mass. App. Div. 218, 221. We give due deference to the trial judge's "firsthand view of the evidence and better position from which to assess its weight and, particularly, its credibility." Id., quoting Davis v. Davis, 2007 Mass. App. Div. 123, 125. We address the Tomasciks' claims somewhat out of order.

1. G.L. c. 142A analysis and c. 93A claim. The Tomasciks first argue that the judge failed to analyze their claims underm G.L. c. 142A, a statute that regulates the conduct of home improvement contractors and serves to protect homeowners from defective or incomplete home improvement work. See Reddish v. Bowen, 66 Mass. App. Ct. 621, 626 (2006). Under G.L. c. 142A, § 17, if a contractor violates any of the seventeen "prohibited acts" enumerated in the section, the contractor "shall" be subject to "administrative sanctions" set forth in § 18, and criminal prosecution. In addition, "[v]iolations of any of the provisions of [G.L. c. 142A] shall constitute an unfair or deceptive act under the provisions of [G.L. c. 93A]" (emphasis added). Id. at § 17. The Tomasciks claim that Hunt violated G.L. c. 142A, §§ 2(a)(6) and 17(16) by demanding final payment before the contract was completed to their satisfaction, thus entitling them to damages under G.L. c. 93A.

We do not agree with the Tomasciks' assertion that Hunt demanded final payment before the contract work was completed, or that the trial judge reached this conclusion. That the project was wrought with delays and cost overages is abundantly clear, and for the most part these cost overruns were the result of choices made by Mrs. Tomascik. At their final conversation in September of 2015, Hunt requested an additional $32,000; Mr. Tomascik offered to pay Hunt $9,000. Upon rejecting this offer, Mr. Tomascik terminated him from the job. The record simply does not support the Tomasciks' characterization of this request for $32,000 as a request for a "final payment" before the job was completed to the Tomasciks' satisfaction. Rather, Hunt was merely requesting another progress payment, one among many that he was forced to request as choices made by Mrs. Tomascik delayed the completion of the project and inflated its cost well beyond the original, estimated contract amount of $119,474.50.

The trial judge's findings were not to the contrary. He acknowledged Hunt's request for an additional $32,000 and Mr. Tomascik's offer of $9,000 to "finish the job." This does not translate into a finding that Hunt was demanding a final payment before the job was done to his customers' satisfaction. Indeed, nothing in the record suggests that Hunt, despite many difficulties and frustrations, was unwilling to continue with

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the project and see to its completion. Rather, it was the Tomasciks who forced him out before the job was done to their satisfaction. In short, the evidence supported the judge's conclusion that Hunt did not violate G.L. c. 142A.

We agree with the Tomasciks that a G.L. c. 93A demand letter was not a prerequisite to their filing a c. 93A counterclaim in response to Hunt's appeal of the arbitrator's decision to the District Court. General Laws c. 93A, § 9(3) expressly excludes counterclaims from the requirement for a written demand in advance of the claim. Regardless, the judge ruled in favor of Hunt, expressly noting that, in any event, Hunt's conduct did not amount to a violation of G.L. c.93A. His ruling is well supported by the evidence. There was no reversible error.

2. Prima facie evidence of arbitrator's award. There is no merit to the Tomasciks' claim that the trial judge disregarded the prima facie evidence of the arbitrator's decision to award them a net total of $24,877.40. The parties had appropriately submitted their dispute to an arbitrator pursuant to G.L. c. 142A, §§ 3(b) and 4, and Hunt was entitled to appeal the arbitrator's adverse decision to the District Court for a trial de novo. G.L. c. 142A, § 4(e). As the trial judge acknowledged in his findings and rulings, he was required to accept the arbitrator's findings offact as prima facie evidence, unless Hunt could produce evidence to rebut or meet such evidence. Mass. G. Evid. § 301(c) (2021). See Ford Motor Co. v. Barrett, 403 Mass. 240 , 243 (1988), quoting Cook v. Farm Serv. Stores, Inc., 301 Mass. 564 , 566 (1938) (the "artificial legal force" of prima facie evidence "remains until evidence appears that warrants a contrary finding"). In other words, the trial judge was not required to rubber stamp the arbitrator's award of damages, but rather conduct an "original" trial: hear testimony, receive evidence, and decide matters of credibility. This he did, and he concluded that Hunt's evidence rebutted the prima facie weight afforded to the arbitrator's decision. Porcaro, supra at 220, citing Booth v. Augis, 72 Mass. App. Ct. 164, 167 (2008). Thus, while the arbitrator's decision was properly accepted at trial as prima facie evidence, it ultimately proved to be "of no consequence." Id. There was no error.

3. Requests for rulings of law. There is similarly no merit to the Tomasciks' claim that the trial judge erroneously "ignored" their specific requests for rulings of law. Massachusetts Rule of Civil Procedure 52(c), effective March 1, 2008, requires a party in a jury-waived trial to file proposed findings of fact and rulings of law before the commencement of closing arguments, which was done here. Upon receipt of the proposed findings and rulings, the trial judge must "find the facts specially and state separately its conclusions of law." Mass. R. Civ. P. 52(c). "Under current Rule 52(c) procedure, 'the court does not rule on each request but prepares its own findings and rulings, without a requirement to reference the findings and rulings so proposed' by the parties." New England Sports Therapy, Inc. v. Metlife Auto & Home, 2013 Mass. App. Div. 67, 69 quoting Heinzer v. Xarras, 2010 Mass. App. Div. 218, 219. Accordingly, "the lack of a specific disposition" of each of the Tomasciks' requests for rulings of law "did not constitute an erroneous denial of the legal principles set forth in the requests." Id. In his findings and rulings, the trial judge articulated the facts that he found and the law upon which he based his decision. He was not required to do more.

4. Damages award to Saltwater Woodworks, LLC. Hunt operated a separate business entity apart from C & J Hunt Construction Services, LLC, called Saltwater Woodworks, LLC ("Saltwater"). Saltwater was Hunt's subcontractor for the purpose of the construction and installation of the Tomasciks' new kitchen cabinets at a proposed

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cost of $31,984.00. Saltwater was not a party in the arbitration, and the arbitrator's award expressly excluded the $15,912.00 that the Tomasciks had paid to Saltwater toward the cost of the cabinets.

In the appeal of the arbitrator's decision to the District Court, however, both C & J Hunt Construction Services, LLC and Saltwater were the named plaintiffs. The Tomasciks filed a Mass. R. Civ. P. 12(c) motion for judgment on the pleadings as to Saltwater. A District Court judge (not the trial judge) endorsed the motion as "allowed without objection, as indicated by Saltwater's attorney in open court." Thus, the judge dismissed Saltwater from the case with the consent of its own attorney; Saltwater was not a party when the case went to trial.

The Tomasciks now argue that the trial judge erroneously awarded damages to Saltwater, a nonparty to the action. After a review of the record, we are constrained to agree that the total award of damages to Hunt included the balance owed to Saltwater for the cabinetry. Consequently, where Saltwater was not a party to the action at trial, we must reduce the damages award to Hunt by $16,072, an amount that the record discloses to be the balance the Tomasciks owed to Saltwater.

5. Quantum meruit. Because we conclude that the evidence supported the trial judge's decision in favor of Hunt on the breach of contract and G.L. c.93A claims, we need not reach the Tomasciks' quantum meruit argument.

Judgment for the plaintiff is affirmed, but the case is returned to the trial court forentry of an award of damages to the plaintiff in the amount of $8,411.91, plus interest and costs.