Opinion
15-P-1195
01-17-2017
Robert B. MENAPACE v. Deborah GREGSON& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robert Menapace, doing business as Otaku Design/Build, is a registered home improvement contractor. He commenced this action against Deborah Gregson and Paula O'Gilvie (homeowners), seeking compensation due under an agreement for services and materials (contract) and enforcement of his mechanic's lien rights. Following a two-day jury-waived trial, a judge of the Boston Municipal Court (BMC) found in favor of Menapace on his breach of contract claim, and in favor of the homeowners, in part, on their counterclaim under G. L. cc. 93A and 142A. The judge also dismissed the homeowners' counterclaim for breach of contract. The resulting judgment awarded Menapace $7,596 in contract damages and $10,800 in attorney's fees. The homeowners appealed and the Appellate Division of the BMC Department (Appellate Division) affirmed and dismissed the homeowners' appeal. As required by the parties' contract, the Appellate Division awarded $9,000 in attorney's fees to Menapace. The homeowners also appeal from that award. We affirm.
The damage award reflected an offset of $500 for some minor defective work that did not rise to the level of a breach of contract. On the counterclaim, the judge found that the homeowners did not sustain any actual damages as a result of the contractor's statutory violations. A separate judgment entered on the counterclaim awarding to the homeowners nominal damages of twenty-five dollars and attorney's fees of $750. The contractor elected not to appeal from this judgment.
This court consolidated the homeowners' appeal from the fee award with the underlying appeal.
Background . In early 2005, Menapace entered into a contract with Gregson and O'Gilvie to construct a second story addition to their home. He began work on March 10, 2005; finished demolition in early April; completed roofing by the middle of July; framed the interior in August; and installed windows and plumbing in October. In the middle of October, the homeowners moved furniture into the new space and made full use of it. By November, the heating system had been installed. The addition was now habitable, and work was substantially complete. The remaining work—installing exterior shingle siding and finishing interior detailing—took another year to complete. After that, Menapace requested final payment, but due to delays in construction, the homeowners refused to pay. This litigation ensued.
We recite the facts as found by the trial judge.
The contract required that "all work will be "substantially completed within 120 days after [commencement], weather permitting." Work having begun on March 10, 2005, the 120-day deadline was July 8, 2005. Though work was not "substantially completed" until November, 2005, about 114 days behind schedule, the judge found that this was excusable for several reasons, including adverse weather (rain), the discovery of dry rot on the home's exterior, and an issue with the electrical service, both of which were unforeseeable and needed to be addressed. In addition, there were approximately thirteen change orders requested or agreed to by the homeowners that altered the scope of work.
What work remained after substantial completion was also delayed, taking approximately another year to complete. It was not until November 15, 2006, that the city of Boston inspectional services department conducted its final inspection and signed off on all the necessary permits. The judge found this further delay inexcusable, attributing it to Menapace's failure to coordinate his schedule with those of his subcontractors, his failure to retain more employees, and his attention having been diverted by other projects.
Discussion . 1. Menapace's breach of contract claim . Contractors such as Menapace, who do not perform fully and strictly, "cannot recover on the contract," but may yet recover in quantum meruit by proving "substantial performance" and a good faith effort to perform fully. Andre v. Maguire , 305 Mass. 515, 516 (1940). Gregson and O'Gilvie contend that Menapace was not entitled to quantum meruit damages because he did not adequately perform under his contractual duty to substantially complete work within 120 days of commencement. At issue, then, is whether Menapace proved substantial performance, see ibid ., under his contractual duty to substantially complete the work within the 120-day deadline. This presents a question of fact. Cf. Coviello v. Richardson , 76 Mass. App. Ct. 603, 609 (2010) (whether material breach has occurred is question of fact). We review factual findings for clear error, and will not disturb them unless a review of the entire record leaves us with a "definite and firm conviction that a mistake has been committed." Buster v. George W. Moore, Inc ., 438 Mass. 635, 643 (2003), quoting from Commonwealth v. Source One Assocs ., 436 Mass. 118, 124 (2002).
The word "substantial," or some variation on that word, appears both in the lien statute and in the parties' contract.
Gregson and O'Gilvie claim the judge erred in finding Menapace's 114-day delay excusable due to rain, unanticipated construction problems, and changes to the scope of work. We conclude, however, that the record supports these findings. Menapace's brother, who worked on the project, testified that rain was a primary cause of delay. The contract specifically allowed for weather-related delays. Menapace explained the electrical service problem, including why it was unforeseeable, and O'Gilvie admitted to the dry rot. Gregson and O'Gilvie also admit that they requested or agreed to change orders resulting in additional work. As such, they cannot be heard now to complain about additional delays resulting from their own requests, regardless of the fact that they did not explicitly alter the deadline. See Palmer v. Stockwell , 9 Gray 237, 239 (1857).
We may take judicial notice of historical weather data. See Mass. G. Evid. § 201(b)(2) (2016). Rainfall between March 10, 2005, and October 31, 2005, was higher than it had been during the same time period between 1999 and 2004.
The homeowners claim that only one change order was executed prior to the original deadline of July 8, 2005, and urge that later change orders should be disregarded. This ignores the fact that rain and unforeseen problems also contributed to delay, including prior to July 8, 2005.
The homeowners' remaining arguments consist of a variety of theories as to why, as a matter of law, Menapace's work was not substantially completed by November, 2005. First, they seek to bind Menapace to a statement in his complaint alleging that the "contract was substantially completed on or about November 15, 2006." Parties in civil cases are bound by the allegations of their pleadings. See G. L. c. 231, § 87. However, Menapace's statement—which appears in an exhibit to a pro se pleading—may be interpreted to mean that work was completed at least as early as November 15, 2006. There is no error, as courts are not without discretion to construe pleadings in the interest of justice. See, e.g., Steranko v. Inforex, Inc ., 8 Mass. App. Ct. 523, 527-528 (1979).
Next, the homeowners argue that the phrase "substantially completed," if ambiguous, should be construed against Menapace. Because they raised this argument for the first time in a reply brief at the Appellate Division, we, like the Appellate Division, need not consider it. See Campbell v. R.W. Granger & Sons, Inc ., 401 Mass. 278, 280-281 (1987).
In their brief, the homeowners take the primary position that the phrase is not ambiguous.
Third, they argue that work cannot be deemed substantially completed, as a matter of law, until a certificate of occupancy issues. However, they cite no authority for the proposition that a building code requirement controls the relevant factual determinations as to substantial completion in a contract, and we find no such authority.
Lastly, they cite language in the contract stating that final payment is not due until work is completed "to the satisfaction of all parties," and assert that they are reasonably dissatisfied with the work. However, as grounds for dissatisfaction, they cite the delay rather than the quality of the work itself. We must reject this argument because the delay in achieving substantial completion was excusable.
The trial judge found that Menapace performed his obligations in a workmanlike manner and there were no significant defects. Notwithstanding, owing to a handful of minor issues, he reduced Menapace's damages by $500.
2. Gregson's and O'Gilvie's breach of contract counterclaim . This counterclaim is premised on the same delays discussed above. "[W]hether a material breach has occurred is a question of fact," Coviello , 76 Mass. App. Ct. at 609, which we review for clear error, see Buster , 438 Mass. at 642. For the same reasons discussed above, we discern no clear error in the finding that Menapace did not materially breach the contract.
3. Gregson's and O'Gilvie's damages under c. 93A . In his contract, Menapace failed to include his social security number, an explicit start date, and a schedule for payments. He thereby violated G. L. c. 142A, § 2, which in turn gave rise to violations under G. L. c. 93A, and G. L. c. 142A, § 17, for which the homeowners received statutory damages of twenty-five dollars.
Gregson and O'Gilvie contend that Menapace's delay in work should form part of the basis for his liability under c. 93A, and that the delay resulted in significant actual damages. Specifically, they claim that Menapace materially misrepresented the timeframe for completing the project and did so knowingly or with a reckless disregard for the truth, in violation of c. 142A, § 17(4), and c. 93A. However, the evidence established that the delay in substantial completion was the excusable result of later, unforeseeable events and the weather. To the extent Menapace was not excused for further delay between substantial completion and final completion, the evidence nevertheless supported the conclusion that this further delay did not amount to a material breach of contract, and indeed, Menapace had been working in good faith.
As a result of the delay, they claim to have suffered damages for the loss of their seasonable use of the addition, as measured by the fair rental value of the addition. See Morgan-National Woodworking Co . v. Cline , 324 Mass. 15, 17 (1949). Additionally, they claim that the delay resulted in the loss of an opportunity to obtain a $3,700 grant from the city of Boston. The grant appears to have been denied, at least in part, because Menapace asserted a mechanic's lien while seeking final payment.
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There was no error in finding Menapace liable under c. 93A solely on the basis of the relatively technical violations of c. 142A, § 2. There was no evidence of damages that resulted from these particular violations, and the statutory award of twenty-five dollars was appropriate.
4. Attorney's fees and costs . For the reasons stated above, we therefore affirm the Appellate Division's award of attorney's fees and we further conclude that, pursuant to the contract, Menapace is entitled to attorney's fees and costs incurred in connection with this appeal. Thus, Menapace may, within fourteen days of the date of this decision, file and serve a petition for his appellate attorney's fees and costs. The homeowners shall have fourteen days thereafter to submit an opposition should they choose to do so. See Lowell v. Massachusetts Commn. Against Discrimination , 65 Mass. App. Ct. 356, 358 (2006) (adopting procedure set forth in Fabre v. Walton , 441 Mass. 9 [2004] ).
So ordered .
Judgment affirmed