Opinion
16-P-1311
06-13-2017
Sussie FIGUEROA v. NATIONAL FLOORS DIRECT, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Sussie Figueroa, brought claims for breach of contract and a violation of G. L. c. 93A against the defendant, National Floors Direct, Inc., following the installation of new hardwood flooring in her home, alleging that the wood was defective and improperly installed. The plaintiff settled with the manufacturer of the wood, Armstrong World Industries, Inc. (Armstrong), but proceeded to trial against the defendant. After a bench trial, the judge awarded the plaintiff damages, doubled under G. L. c. 93A. On appeal, the defendant claims that the judge erred by failing to offset the plaintiff's award by the amount of her settlement with Armstrong, in accordance with the plaintiff's and the defendant's understanding at trial, acknowledged by the judge, that an offset was appropriate. We agree, and therefore reduce the plaintiff's award by the amount of her settlement with Armstrong, after doubling the award under G. L. c. 93A.
We discern no merit in the defendant's other contentions on appeal, including that the plaintiff failed to meet her burden of proof as to the amount of damages.
Background. We summarize the facts set forth in the judge's findings. In 2012, the plaintiff hired the defendant to install new hardwood flooring in her home for $16,094.68. She selected a dark wood from samples she received. After the installation was complete, the plaintiff was dissatisfied with the quality of the wood and installation. The trial judge found that there were "significant gaps" in the flooring, that some of the wood was "discolored" and "scratched or gouged," and that "in a number of places, nails ... were sticking out."
The plaintiff expressed her concerns to the defendant and requested on numerous occasions for someone to come to her home to inspect the flooring. After several months, when the defendant had still not sent someone, the plaintiff hired another company to fix the gaps, cracks, and exposed nails in the wood and to re-stain it. She paid $7,800 for the repairs. The stain was lighter than the one she had ordered from the defendant, and the discoloration remained visible.
The trial judge found that the repair "left the floor not a wholly perfect match for the originally ordered ... wood, [but] it was reasonably serviceable after [the repair]." The plaintiff testified that she could still see the discoloration in the floor after the repair.
The plaintiff brought several claims against the defendant and Armstrong. Before trial, the plaintiff informed the judge that she had reached a settlement with Armstrong. The defendant asserted that it should receive "an offset for the amount of the settlement," to which the plaintiff did not object. The judge responded that the offset did not "sound unreasonable" or "[present] any issue."
The plaintiff proceeded to a bench trial on her claims against the defendant. During cross-examination, defense counsel began questioning the plaintiff about her claims against Armstrong. Defense counsel asked the judge whether he should elicit testimony from the plaintiff about the settlement or address the issue posttrial, reminding the judge that, "to the extent [that] there's any finding for the plaintiff there'd have to be an offset." The judge instructed the plaintiff to file the settlement posttrial. Defense counsel then resumed questioning the plaintiff, asking about the settlement. The judge interjected, inquiring whether the settlement involved a factual issue for him to determine. Defense counsel responded, "no," but reiterated that, "to the extent that there would be [a judgment for the plaintiff], there would have to be an offset." The judge responded, "Offset, no, I understand.... Just file a piece of paper and say the parties agree that there's a settlement with Armstrong and it's this amount which would be an offset against any judgment." The plaintiff then informed the judge that the settlement with Armstrong had not been completely resolved. The plaintiff assured the judge, however, that the offset was not "contingent" and that the defendant was "entitled to that reduction." The judge dissuaded the defendant from asking any further questions of the plaintiff about the settlement.
The judge stated, "I don't think making it a factual matter of [the plaintiff] answering the questions at this point ... necessarily makes sense." Later, the judge also stated, "I don't really think asking [the plaintiff] the intricacies about [the settlement] is going to get us far at all."
The next day, the plaintiff confirmed that she had settled with Armstrong for $5,000. The judge acknowledged that there was "a discrete figure which could be applied against any judgment post trial."
After trial, the judge awarded the plaintiff $7,800, doubled to $15,600 under G. L. c. 93A. The defendant moved for a reduction in damages based on the settlement with Armstrong. Despite the previous discussions of the offset, the plaintiff opposed the motion. The motion judge, who was also the trial judge, denied the motion, reasoning that the plaintiff's claim against Armstrong for "defective wood flooring" and against the defendant for "defective workmanship in its installation" did not cause a single, indivisible harm, and thus, an offset was not appropriate.
Discussion. We recognize that the judge could have properly concluded here that the plaintiff's claims against Armstrong and the defendant did not arise from a "single, indivisible harm," and thus, an offset was not necessarily required. Short v. Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848, 858 (2011). The plaintiff's complaint defined two separate but intertwined injuries. According to the complaint, the plaintiff's claim against Armstrong arose from its provision of discolored wood that did not match the sample she selected, whereas her claims against the defendant arose from the shoddy installation of the wood, which left gaps and exposed nails in the flooring.
Nevertheless, there was a clear understanding at trial that an offset was appropriate, and the evidence introduced at trial was limited according to that understanding. The plaintiff did not object to the offset during the numerous discussions about it at trial, and explicitly stated that the defendant was "entitled" to it. The judge acknowledged this agreement several times, and discouraged the defendant from further inquiring about the settlement at trial. Based on these assurances, the defendant did not elicit any further testimony from the plaintiff about her claims against Armstrong or the settlement. After trial, however, the plaintiff nonetheless opposed the defendant's motion for a reduction in damages. The plaintiff cannot "assert[ ] a position in one legal proceeding that is contrary to a position [she] had previously asserted in another proceeding." Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 640 (2005). Moreover, the defendant was greatly disadvantaged in seeking the offset after trial, not having presented further evidence about the plaintiff's claims against Armstrong at trial, under the assumption that the offset had already been agreed upon. See id. at 641. We further note that, at oral argument in this court, plaintiff's appellate counsel, who was also trial counsel, stated that he "always thought" the defendant was entitled to an offset, and "concede [d]" that the plaintiff "would be [made] whole by the [$7,800, once doubled] less the [$5,000]." We therefore conclude that the defendant should receive the benefit of the agreed-upon offset, especially where the injuries, albeit separable, are closely intertwined. This offset is to be applied after doubling the $7,800 to $15,600 under G. L. c. 93A. See Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813, 830-831 (2014) (noting that plaintiff's G. L. c. 93A damages should be reduced by sum already paid by defendant, "such offset ... to be applied after multiplying [the plaintiff]'s actual damages, if appropriate").
See also Ameripride Linen & Apparel Servs., Inc. v. EatWell, Inc., 65 Mass. App. Ct. 63, 71 (2005) ("[T]he proper construction of G. L. c. 93A, ... is that where multiplication is warranted, the multiplication is first applied to the ‘loss of money or property’ caused by unfair conduct, and only thereafter are any offsets or amounts recouped to be considered").
--------
To the limited extent that she has been successful in countering the defendant's appeal, the plaintiff may apply for her appellate attorney's fees and costs. See, e.g., Kapp v. Arbella Mut. Ins. Co., 426 Mass. 683, 687 (1998) ; Golber v. Baybank Valley Trust Co., 46 Mass. App. Ct. 256, 259 (1999). Within fifteen days of the date of the rescript, the plaintiff may file a request with supporting documentation for an award of appellate attorney's fees and costs under G. L. c. 93A, in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendant shall have fifteen days within which to respond.
The judgment is modified to provide for the offset as set forth in this memorandum and order. As so modified, the judgment is affirmed.
So ordered.
Affirmed as modified.