Opinion
No. 11–P–1872.
2012-10-18
Tina WILLIAMS & another v. Lawrence D. PERRAULT & another.
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This action arose out of a kitchen and bathroom remodeling job performed by Lawrence D. Perrault, the principal of Granite State Refacing, LLC (collectively contractor), for Tina and Glenn Williams (the homeowners). Following a two-day trial, a jury returned a general verdict in favor of the homeowners on their complaint and apparently in favor of the contractor on the counterclaim.
No damages were awarded. Adopting the homeowners' proposed findings of fact and rulings of law verbatim, the trial judge subsequently found and ruled in their favor on the reserved G.L. c. 93A claim, awarding nominal damages of $25.00, and attorney's fees and costs. The Appellate Division of the District Court Department affirmed. Finding no merit to the four claims of error raised by the contractor, we affirm. To the extent that the contractor argued that the demand for relief was inadequate, the pre-litigation demand letter requirements of G.L. c. 93A, § 9(3), did not apply.
The verdict slip is not entirely clear on this score. No issue regarding the counterclaim is raised in the appeal.
We fail to see how any of the purposes underlying the statutory demand requirement were thwarted by the homeowners. See Casavant v. Norwegian Cruise Line, Ltd., 460 Mass. 500, 505–507 (2011). The homeowners permitted the contractor's expert to examine the work prior to filing suit. So far as appears on this record, nothing done by the homeowners deprived the contractor of the opportunity to make a viable settlement offer upon notice of the c. 93A claim. Although the homeowners' complaint lacked a specific monetary demand, it described in detail the alleged injuries suffered as a result of the contractor's unfair and deceptive acts. Compare Simas v. House of Cabinets, Inc., 53 Mass.App.Ct. 131, 139–140 (2001). Using his expertise as a contractor, the information from the complaint, and his expert's estimate of the cost allegedly required to make the homeowners whole under the contract ($3,000.00), Perrault presumably could have performed an informed damage evaluation and made a reasonable settlement offer. Id. at 140. Perrault, however, failed to attempt to limit his liability in the manner provided by the statute. See G.L. c. 93A, § 9(3).
As the out-of-State contractor admitted and the judge found, the contractor did not maintain a place of business or keep any assets within the Commonwealth.
The judge's G.L. c. 93A award was based primarily upon multiple acts prohibited by G.L. c. 142A.
We conclude, as did the Appellate Division, that the contractor's admitted performance of unlicensed plumbing and electrical work was a violation of the building laws within the meaning of c. 142A, § 17(10), and thus a per se unfair or deceptive act under c. 93A. See Reddish v. Bowen, 66 Mass.App.Ct. 621, 626–629 (2006); Mercado v. Manny's T.V. & Appliance, Inc., 77 Mass.App.Ct. 135, 136, 139–140 (2010); Meyer v. Nantucket, 78 Mass.App.Ct. 385, 395 (2010). We also conclude that the judge's findings that the homeowners suffered an injury or loss as a result of those particular unfair or deceptive acts, necessary elements of their c. 93A claim, were not clearly erroneous.
Violations of any of the provisions of c. 142A “shall constitute an unfair or deceptive act under the provisions of chapter ninety-three A.” G.L. c. 142A, § 17. Perrault, a registered Massachusetts home improvement contractor, admitted that at the time he performed residential contracting services for the homeowners, he had no familiarity with that statute. To the extent that the contractor nevertheless argues that the case is not “the stuff of which a 93A claim is made,” c. 142A “reflects an intention to facilitate a homeowner's c. 93A remedies.” Simas v. House of Cabinets, Inc., 53 Mass.App.Ct. at 137.
See Herman v. Admit One Ticket Agency, LLC, 454 Mass. 611, 615–616 (2009); Casavant v. Norwegian Cruise Line, Ltd., supra at 503.
The evidence supported the findings that by engaging in unlicensed plumbing and electrical work, the contractor performed work that was not proper and that fell below code in several respects to the detriment of the homeowners; and that shoddy workmanship requiring remediation was the foreseeable consequence of the decision to undertake unlicensed trade work. For example, according to the homeowners' master plumber expert, as a result of the improper dishwasher drain installation in violation of the plumbing code, waste could travel from the homeowners' garbage disposal into their dishwasher. The homeowners' master electrician testified that the wiring work performed by Perrault in connection with the undercabinet lighting was non-code compliant and a fire hazard. He further testified that he was required to add two tamper-proof outlets to the countertop installed by Perrault in order to bring it up to code.
Given the view we take of the case, there is no need to evaluate the sufficiency of the other bases of G.L. c. 93A liability.
The decision and order of the Appellate Division is affirmed. The homeowners have requested appellate attorney's fees and costs. Within ten days of the issuance of this memorandum and order, the homeowners may file with this court a petition for appellate attorney's fees and costs of appeal in accordance with the procedure prescribed in Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The contractors shall have seven days thereafter to file a response.
So ordered.