Dick v. Lussier

1998 Mass. App. Div. 151
CourtMassachusetts District Court, Appellate Division
DecidedAugust 3, 1998
StatusPublished
Cited by1 cases

This text of 1998 Mass. App. Div. 151 (Dick v. Lussier) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dick v. Lussier, 1998 Mass. App. Div. 151 (Mass. Ct. App. 1998).

Opinion

Merrigan, J.

The plaintiffs Paul C. and Lorie J. Dick brought suit against the defendant George A. Lussier alleging breach of contract, fraudulent concealment, negligence and violations of G.L.c. 93A concerning the construction of a single family home for the Dicks by Lussier. Lussier denied liability and counterclaimed for the balance owed on a note for some construction items not covered in the bank financing.

After trial, the court found for the Dicks and awarded damages for breach of implied warranty and negligence with respect to the installation of roof shingles. The court found for Lussier regarding other claims by the Dicks including those concerning the water quality and the water filtration system. The court found for Lussier on the counterclaim on the note and awarded damages. Among the subsidiary findings made by the judge concerning the purchase and sale agreement, the court found that “ [t]he water filtration system was to be installed by the defendant, the contractor.” The judge also made a finding “that the test results did show high various mineral contents, high iron and high torpidity, but those mineral and torpidity contents were not the subject of the purchase and sale agreement, other than the fact that filters for sediment and minerals were to be funded by the plaintiffs, and as to mineral and torpidity contents was [sic] the obligation of the plaintiffs.”

The Dicks appealed and their arguments on appeal concern issues related to the water quality and the filtration system. Unless clearly erroneous, we are bound by the trial judge’s findings of fact. We may, however, find additional facts from the evidence, especially where uncontroverted, and on the basis of all facts, review the conclusions of law by the trial judge on the evidence presented.

Factual background. From the record, there is evidence to warrant the following facts. In April 1990 the Dicks attended a seminar sponsored by Lussier for prospective home buyers. The Dicks became interested in building a new home and met with Lussier and his real estate brokers several times thereafter regarding building a house and selecting a site. An architect, engaged by Lussier, drew up a set of house plans and the Dicks selected a lot in a development in Spencer owned by Lussier. The Dicks relied upon Lussier in all respects for his expertise in designing and constructing their new home. Other than the selection of carpet colors and similar choices, Lussier told the Dicks that — as the general contractor — [152]*152he would take care of everything. The agreement between them was reduced to a purchase and sale agreement.

The agreement provided, in part, as follows: Lussier agreed to construct a dwelling in conformity with specifications in Exhibit B to the agreement. Exhibit B provided that Lussier would furnish all materials and perform all work necessary for construction of the dwelling. Under Section P, entitled “Water Supply,” the agreement stated a well would be the source of the water supply; that the well contractor would guarantee 5 gallons per minute for four hours with zero bacteria; that any filters for sediment or minerals if necessary, to be funded by the buyer. Under a section entitled MISCELLANEOUS, subtitled ‘Additional Work to be completed,’ the contract stated, Water filtration system to be installed.

During construction, Lussier subcontracted with WellTech for the well drilling. Lussier also made arrangements with WellTech for the initial water quality tests that were necessary for the Dicks’ mortgage financing and to satisfy federal, state and municipal environmental and health codes. Lussier also made arrangements for WellTech to install a water filtration system with specifications responsive to the water quality tests. This first set of tests were performed on May 2,1991. WellTech utilized the services of a commercial lab for water quality testing. At no time did Lussier consult with the Dicks regarding the subcontract or any arrangements with WellTech concerning the water filtration system. There is nothing in the purchase and sale agreement that specifically establishes a separate relationship between the Dicks and WellTech. Likewise, there was no written or verbal agreement between the Dicks and WellTech nor was there any such agreement between the Dicks and Lussier regarding WellTech.2 The May 2 water quality tests obtained by WellTech for Lussier revealed that the iron,' manganese and turbidity exceeded state and federal standards and as a result, the water was not fit for human consumption. The results of this test were used by WellTech to configure the water filtration system that was installed. The system was a minimal filtration system and did not as designed and installed provide for an exterior use bypass so that water for the lawn would circumvent the filter.

A second set of water quality tests were performed on August 20,1991. These tests were just prior to the August 27,1991 closing and the results indicated water quality results improved sufficiently to seemingly satisfy mortgage lending and meet federal, state, and local legal requirements. The trial judge made the general finding that “water samples were taken from the well installed on the plaintiff’s property, and that the samples were taken by WellTech Corporation." This finding as it relates to the August 20,1991 tests is “clearly erroneous.” Mass. R. Civ. R, Rule 52(a). The owner of WellTech was called as a witness by Lussier and he unequivocally testified that the August 20, 1991 water sample was not collected by WellTech. The records of the commercial lab (as testified to by its employee) indicate that the August 20, 1991 water sample was delivered by one of Lussier’s employees, and not a WellTech employee. Moreover, there is no affirmative evidence in the record that the August 20,1991 water sample was obtained and delivered to the lab by WellTech.3 We conclude, based upon the evidence presented, that the August 20 water sample was obtained by Lussier and delivered for testing [153]*153to the lab.4

The Dicks only became aware of the May 2,1991 and August 20,1991 water test results when information was presented at the closing. Previously, the Dicks had not been consulted in any respect about the two tests, the significant discrepancies in test results nor given any options concerning the filtration system or any design features. Immediately upon occupancy, the Dicks found that the water made their clothes discolored and that there were orange rust stains in the tub and toilet. The water had a heavy odor and was not potable. When the Dicks complained to Lus-sier, he completely disavowed responsibility and referred them to WellTech. As a result of continuous problems with the water, the Dicks had another test done in December 1992. The results from these tests were very similar to the tests in May 1991. Unable to obtain any satisfaction from WellTech, in 1991 and 1992, in January 1993, the Dicks engaged the services of another company and eventually installed an enhanced water filtration system. The cost was $4400.5

Legal analysis of the facts. The purchase and sale agreement required Lussier to furnish all materials and perform all work necessary to construct the dwelling. The agreement required Lussier to install the water filtration system. The Dicks were consumers who had no knowledge or expertise in these matters and they relied upon Lussier for his experience and knowledge.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dick v. Lussier
1999 Mass. App. Div. 249 (Mass. Dist. Ct., App. Div., 1999)

Cite This Page — Counsel Stack

Bluebook (online)
1998 Mass. App. Div. 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dick-v-lussier-massdistctapp-1998.