NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-14
IRENE TABACHNIK & another1
vs.
CT INSTALL AMERICA, LLC2; FRANCIS M. PANACHELLI & another,3 third-party defendants.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In March 2018, the plaintiffs, Irene and Paul Tabachnik,
hired the defendant, CT Install America, LLC (CT Install), to
install new windows and sliding glass doors in their home. The
project did not go well. Six months later, in September 2018,
the Tabachniks filed this lawsuit alleging breach of contract,
negligence, and violations of G. L. c. 93A. CT Install then
brought a third-party complaint for, among other things,
indemnification and contribution, against the subcontractor,
Gerald Nolette, who CT Install had hired to do the work at the
1 Paul Tabachnik. 2 Doing business as Install America. 3 Jerry Nolette doing business as Nolette Construction. As is our custom, we use the spelling that appears on the complaint. Tabachniks' house.4 Following a jury-waived trial, a Superior
Court judge found in favor of the Tabachniks on all their
claims, and in favor of Nolette on CT Install's third-party
claims. CT Install appeals.
Background. We recite the facts, taken from the evidence
at trial, as follows. The Tabachniks purchased their home in
2016. The house was built in the 1950s and the Tabachniks
planned to renovate the house in stages. To this end, on March
3, 2018, the Tabachniks entered into a contract with CT Install
for the purchase and installation of new windows and patio
doors. The cost of the project was $16,000. The Tabachniks
paid a deposit of $5,000, with the remainder due on completion
of the work. With respect to the Tabachniks' den, the plan was
for CT Install to replace the existing windows with longer
windows. Although the Tabachniks believed that employees of CT
Install would perform the work, CT Install hired Nolette, a
local contractor, for the project. Soon after the project
began, the Tabachniks learned that the den wall was slanted due
to preexisting structural issues, and consequently, the new
windows could not be properly installed.
4 CT Install also brought counterclaims against the Tabachniks and additional third-party claims against Francis M. Panachelli, another subcontractor that had measured the windows. These claims have been dismissed, and no issues are raised as to them on appeal.
2 On May 23, 2018, Irene Tabachnik contacted CT Install,
expressed her concern that the longer windows would not be
appropriate due to the slant, and suggested that they instead
replace the windows with ones that would fit the current
openings. A representative from CT Install came out to the
Tabachniks' home and told Irene that CT Install could fix the
slant in the den wall and install the longer windows. The
Tabachniks agreed to proceed with the project, which now
included the additional work of fixing the den wall and the
removal of a stone floor in the den.
After improperly installing some windows, which were not
the same ones as the Tabachniks had originally ordered,5 and
having subcontractors begin demolition work to fix the slant,
which ultimately also involved the Tabachniks paying Nolette an
additional $2,000 to demolish the den floor they wanted to keep,
CT Install concluded that the structural issues were too
extensive to fix and abandoned the project.6
5 The contract called for the installation of new construction "677" windows. However, CT Install delivered a lesser grade of windows referred to as "177" windows. 6 There were also problems with the building permits and
workmanship. On August 22, 2018, the town's building inspector, Walter Avallone, conducted a site visit. He testified that he saw work that did not fall within the purview of the building permit for window replacement and that the windows that were installed were not done so properly. In addition, the windows did not have stickers on them, so Avallone could not verify whether they met the applicable energy code. As a result of his observations, Avallone rescinded the building permit. He
3 In September 2019, the Tabachniks hired a new contractor to
fix the problems. They asserted that they had incurred damages
in the following amounts: $50,000 paid to the new contractor;
$15,000 to replace a beam that CT Install had removed during the
demolition; the $5,000 deposit paid to CT Install; the $2,000 to
demolish the den floor; another $1,100 to rebuild the den floor;
and $2,750 for an architect.
The case proceeded to trial before a judge of the Superior
Court on August 22, 2022. On the first day of trial, the
parties filed a joint waiver of detailed findings of fact and
rulings of law, and, at the conclusion of the trial, the parties
submitted agreed on special questions for the judge to answer as
the finder of fact. In response to those questions, the judge
found that for each of the Tabachniks' claims, they suffered
damages in the amount of $76,650. Specifically, with respect to
the breach of contract claim, the judge answered "yes" to the
following two questions: (1) "Did the parties orally amend the
contract, Ex.1, to reframe the slanted wall in the den after the
discovery of the slanted wall?;" and (2) "Are the damages
incurred by the Plaintiffs to structurally repair the den,
consequential damages which the Plaintiffs are entitled to?"
The judge then doubled the damages after finding that the
testified that the "work was in violation of code. It was inferior. It wasn't workmanlike installed."
4 defendant's conduct was a willful or knowing violation of c.
93A. An amended judgment entered for $153,300, plus attorney's
fees, costs, and prejudgment interest.
Discussion. a. Breach of contract claim. CT Install
argues that the judge erred in finding that there was a valid
oral modification of the parties' contract requiring CT Install
to reframe the slanted wall because the modification was not
supported by proper consideration.7 This argument ignores the
$2,000 payment made by the Tabachniks to Nolette to demolish the
den floor, which CT Install maintained had to be done in order
to fix the wall, and the demolishment of the floor itself, which
the Tabachniks wanted to keep. Thus, while it is true, as CT
Install states, that the Tabachniks were not required to pay
additional money to CT Install to fix the den wall, the oral
modification was supported by adequate -– valuable --
consideration. See A.L. Prime Energy Consultant, Inc. v.
Massachusetts Bay Transp. Auth., 479 Mass. 419, 433 (2018).
b. Negligence claim.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-14
IRENE TABACHNIK & another1
vs.
CT INSTALL AMERICA, LLC2; FRANCIS M. PANACHELLI & another,3 third-party defendants.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In March 2018, the plaintiffs, Irene and Paul Tabachnik,
hired the defendant, CT Install America, LLC (CT Install), to
install new windows and sliding glass doors in their home. The
project did not go well. Six months later, in September 2018,
the Tabachniks filed this lawsuit alleging breach of contract,
negligence, and violations of G. L. c. 93A. CT Install then
brought a third-party complaint for, among other things,
indemnification and contribution, against the subcontractor,
Gerald Nolette, who CT Install had hired to do the work at the
1 Paul Tabachnik. 2 Doing business as Install America. 3 Jerry Nolette doing business as Nolette Construction. As is our custom, we use the spelling that appears on the complaint. Tabachniks' house.4 Following a jury-waived trial, a Superior
Court judge found in favor of the Tabachniks on all their
claims, and in favor of Nolette on CT Install's third-party
claims. CT Install appeals.
Background. We recite the facts, taken from the evidence
at trial, as follows. The Tabachniks purchased their home in
2016. The house was built in the 1950s and the Tabachniks
planned to renovate the house in stages. To this end, on March
3, 2018, the Tabachniks entered into a contract with CT Install
for the purchase and installation of new windows and patio
doors. The cost of the project was $16,000. The Tabachniks
paid a deposit of $5,000, with the remainder due on completion
of the work. With respect to the Tabachniks' den, the plan was
for CT Install to replace the existing windows with longer
windows. Although the Tabachniks believed that employees of CT
Install would perform the work, CT Install hired Nolette, a
local contractor, for the project. Soon after the project
began, the Tabachniks learned that the den wall was slanted due
to preexisting structural issues, and consequently, the new
windows could not be properly installed.
4 CT Install also brought counterclaims against the Tabachniks and additional third-party claims against Francis M. Panachelli, another subcontractor that had measured the windows. These claims have been dismissed, and no issues are raised as to them on appeal.
2 On May 23, 2018, Irene Tabachnik contacted CT Install,
expressed her concern that the longer windows would not be
appropriate due to the slant, and suggested that they instead
replace the windows with ones that would fit the current
openings. A representative from CT Install came out to the
Tabachniks' home and told Irene that CT Install could fix the
slant in the den wall and install the longer windows. The
Tabachniks agreed to proceed with the project, which now
included the additional work of fixing the den wall and the
removal of a stone floor in the den.
After improperly installing some windows, which were not
the same ones as the Tabachniks had originally ordered,5 and
having subcontractors begin demolition work to fix the slant,
which ultimately also involved the Tabachniks paying Nolette an
additional $2,000 to demolish the den floor they wanted to keep,
CT Install concluded that the structural issues were too
extensive to fix and abandoned the project.6
5 The contract called for the installation of new construction "677" windows. However, CT Install delivered a lesser grade of windows referred to as "177" windows. 6 There were also problems with the building permits and
workmanship. On August 22, 2018, the town's building inspector, Walter Avallone, conducted a site visit. He testified that he saw work that did not fall within the purview of the building permit for window replacement and that the windows that were installed were not done so properly. In addition, the windows did not have stickers on them, so Avallone could not verify whether they met the applicable energy code. As a result of his observations, Avallone rescinded the building permit. He
3 In September 2019, the Tabachniks hired a new contractor to
fix the problems. They asserted that they had incurred damages
in the following amounts: $50,000 paid to the new contractor;
$15,000 to replace a beam that CT Install had removed during the
demolition; the $5,000 deposit paid to CT Install; the $2,000 to
demolish the den floor; another $1,100 to rebuild the den floor;
and $2,750 for an architect.
The case proceeded to trial before a judge of the Superior
Court on August 22, 2022. On the first day of trial, the
parties filed a joint waiver of detailed findings of fact and
rulings of law, and, at the conclusion of the trial, the parties
submitted agreed on special questions for the judge to answer as
the finder of fact. In response to those questions, the judge
found that for each of the Tabachniks' claims, they suffered
damages in the amount of $76,650. Specifically, with respect to
the breach of contract claim, the judge answered "yes" to the
following two questions: (1) "Did the parties orally amend the
contract, Ex.1, to reframe the slanted wall in the den after the
discovery of the slanted wall?;" and (2) "Are the damages
incurred by the Plaintiffs to structurally repair the den,
consequential damages which the Plaintiffs are entitled to?"
The judge then doubled the damages after finding that the
testified that the "work was in violation of code. It was inferior. It wasn't workmanlike installed."
4 defendant's conduct was a willful or knowing violation of c.
93A. An amended judgment entered for $153,300, plus attorney's
fees, costs, and prejudgment interest.
Discussion. a. Breach of contract claim. CT Install
argues that the judge erred in finding that there was a valid
oral modification of the parties' contract requiring CT Install
to reframe the slanted wall because the modification was not
supported by proper consideration.7 This argument ignores the
$2,000 payment made by the Tabachniks to Nolette to demolish the
den floor, which CT Install maintained had to be done in order
to fix the wall, and the demolishment of the floor itself, which
the Tabachniks wanted to keep. Thus, while it is true, as CT
Install states, that the Tabachniks were not required to pay
additional money to CT Install to fix the den wall, the oral
modification was supported by adequate -– valuable --
consideration. See A.L. Prime Energy Consultant, Inc. v.
Massachusetts Bay Transp. Auth., 479 Mass. 419, 433 (2018).
b. Negligence claim. CT Install next argues that the
Tabachniks' claim of negligence fails as a matter of law under
7 Relying on Sharon v. Newton, 437 Mass. 99, 102 (2002), the Tabachniks argue that this argument is waived because CT Install did not specifically raise lack of consideration as an affirmative defense. Given our conclusion that the oral modification was enforceable because it was supported by consideration, we need not address this argument.
5 the economic loss doctrine and for lack of causation.8 Neither
argument provides a basis for reversing the judgment.
The economic loss doctrine (also known as the economic loss
rule) "establishes limitations on damages a plaintiff may plead
and recover in a negligence action. It ensures that, '[i]n the
absence of personal injury or physical damage to property
[beyond the defective product itself], the negligent supplier of
a defective product is not ordinarily liable in tort for simple
economic loss.'" Wyman v. Ayer Props., LLC, 469 Mass. 64, 69
(2014), quoting Berish v. Bornstein, 437 Mass. 252, 267 (2002).
"Essentially, where the negligent design or construction of a
product leads to damage only to the product itself, the recovery
for economic loss is in contract, and the economic loss rule
bars recovery in tort." Wyman, supra. According to CT Install,
the economic loss doctrine bars recovery here because "there was
no evidence that . . . the installation of the windows performed
by Install led to any property damage to the structure, required
the rebuilding of the den or sunroom, or caused any other
damage." The flaw in this argument is that it ignores the
8 The Tabachniks argue that CT Install failed to plead, and thereby waived, the economic loss rule as an affirmative defense. CT Install did not plead application of the rule as an affirmative defense but did raise it in connection with its motion for a directed verdict. There was no objection, and therefore we do not deem the defense waived. See Wyman v. Ayer Props., LLC, 469 Mass. 64, 69 n.13 (2014).
6 evidence establishing that the installation of improperly-sized
windows was the reason for which the den wall needed repair and
the floor had to be demolished. In other words, there was
physical damage to more than the product (the windows) itself.
Accordingly, the doctrine does not bar recovery here.
CT Install's claim that there was no evidence of a causal
connection between its actions and the injury at issue suffers
from the same flaw described above; it ignores the evidence.
Although it is undisputed that structural issues including a
slant in the wall of the den existed before CT Install began the
project, the evidence established that CT Install caused the
harm complained of by attempting to install longer windows when
it was evident that it was not feasible to do so and attempting
to repair the slanted wall rather than reorder smaller windows
that would fit the existing spaces, thereby causing some parts
of the Tabachniks' home to be demolished. Accordingly, the
evidence fully supports the judge's conclusion that the
additional repairs flowed directly from CT Install's negligence,
and that negligence was the proximate cause of the damages at
issue. In sum, "but for" CT Install's negligence, the
Tabachniks would not have been forced to repair the preexisting
structural defects.
c. Chapter 93A. CT Install argues that the judge
improperly found that its conduct violated c. 93A for two
7 reasons. First, CT Install claims that the parties' contract
required the application of Pennsylvania law and, therefore, the
Tabachniks cannot avail themselves of the protections c. 93A
affords to consumers in Massachusetts. The judge properly
rejected this argument, observing that despite the choice of law
provision in the contract, the application of Pennsylvania law
"would be contrary to a fundamental policy" of Massachusetts
"which has a materially greater interest" in home renovations
done in Massachusetts than does Pennsylvania. The judge further
noted that an application of Pennsylvania law would unfairly
deprive the Tabachniks of the protections of their home state's
consumer protection laws and concluded that Massachusetts law
applies in the circumstances of this case. We agree with the
judge's analysis and conclusion in all respects. See generally
Hodas v. Morin, 442 Mass. 544, 550 (2004).
Second, CT Install argues that even if Massachusetts law
applies, there was no violation of c. 93A because, at best, all
that occurred was a "mere" breach of contract. This argument
also was properly rejected by the judge, who, in denying CT
Install's motion for a directed verdict, noted that there was
sufficient evidence of a violation of c. 93A, "particularly
through violation of [G. L. c.] 142A," which addresses
prohibited acts by contractors and subcontractors. See
Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 173-176
8 (2013). Moreover, that the judge was not more specific
regarding which provisions of c. 142A were violated is
inconsequential given that CT Install waived its right to
detailed findings of fact and rulings of law at the start of the
trial.
Next, CT Install asserts that the judge had no basis for
concluding that its conduct was willful or knowing and therefore
the judge erred in doubling the damages. In support of this
argument, CT Install asserts there was no causal connection
between the alleged unfair or deceptive acts or practices and
the damages incurred in connection with fixing the preexisting
structural issues. Again, CT Install ignores evidence that
demonstrates it acted willfully and knowingly when it installed
windows that were not properly sized for the existing openings,
violated the town's building code, and agreed to fix the slanted
wall in the den and then abandoned the project.
Lastly, we turn to CT Install's argument that the
attorney's fees awarded to the Tabachniks under c. 93A were
excessive because the judge failed to reduce the amount of fees
requested for legal work that was separate and apart from the
c. 93A claim. We review the judge's award of attorney's fees
for an abuse of discretion. See Castricone v. Mical, 74 Mass.
App. Ct. 591, 603 (2009).
9 We acknowledge that the judge awarded the full amount of
attorney's fees requested by the Tabachniks and did not make
detailed findings indicating how and why he made the award.9
However, in his order allowing the Tabachniks' motion for
attorney's fees, the judge made clear that he had considered the
nature of the case and the issues presented, and was guided by
the "lodestar method" as set forth in Berman v. Linnane, 434
Mass. 301, 303 (2001), in reaching his conclusion that the
amount of fees requested was "reasonable for the necessary
services rendered . . . in preparation and presentation of this
case." Furthermore, we agree with the Tabachniks that the
c. 93A claim was intertwined with the breach of contract and
negligence claims. When the "same primary conduct or chain of
events" give rise to both the common law claims and the c. 93A
claim, a trial judge "may treat the entire work as an
indivisible contribution to the c. 93A accomplishment."
Castricone, 74 Mass. App. Ct. at 604. Here, the judge, who was
familiar with the case, was in the best position to determine
whether any reductions in the fee award were necessary. His
conclusion that no deductions were warranted was not an abuse of
discretion.
9 The judge did not award the full amount of costs that were requested.
10 d. Calculation of damages. CT Install correctly notes
that there is a minor discrepancy in the calculation of damages.
The $50,000 spent on the den, $15,000 to replace the beam,
$5,000 deposit paid to CT Install, $2,000 to demolish the den
floor, $1,100 to rebuild the den floor, and $2,750 for an
architect equal $75,850, not $76,650 as the judge concluded.
This amounts to a difference of $800.
Contrary to the Tabachniks' assertion that the defendant
waived this issue, a mathematical error of this type is
appropriately raised on appeal. See EventMonitor, Inc. v.
Leness, 473 Mass. 540, 552 (2016). Because the uncontroverted
evidence established damages in the amount of $75,850, which the
judge then doubled pursuant to c. 93A, the defendant is entitled
to the entry of a judgment in the amount of $151,700, to reflect
the $1600 discrepancy.10
CT Install also claims that the award of damages should
have been reduced by $11,000, which represents the balance owed
on the original contract. Given the circumstances of CT
Install's breach, including the fact that the windows in the
10The Tabachniks maintain that $400 of the $800 is attributable to the cost of disposing of the windows that had been improperly installed before CT Install left the project. However, the $400 was not included in the calculation of damages provided by the Tabachniks' attorney at trial. As noted above, the amount specified was $75,850.
11 kitchen and the sliding glass door were never installed, we
discern no basis for this claim.
We are similarly unpersuaded by CT Install's argument that
the award of damages should be reduced by the amount the
Tabachniks spent to fix the preexisting structural issues. As
discussed previously, CT Install caused the harm by, among other
things, their negligent assessment of the situation. Based on
the evidence presented at trial, the judge had a proper basis
for concluding that all the damages flowed from CT Install's
conduct and that CT Install was therefore liable for all the
expenses incurred to fix the structural issues.
e. CT Install's claim for indemnification. The final
issue on appeal concerns CT Install's claim for indemnification.
CT Install argues that the indemnification clause in its
contract with Nolette is "unambiguous and clear" and the judge
erred in finding that Nolette had no duty to indemnify it. This
argument ignores the well-settled principle that when a
subcontractor agrees to indemnify a general contractor, for the
subcontractor to be liable, there must be a causal connection
between the subcontractor's work and the injury. See M.
Dematteo Constr. Co. v. A.C. Dellovade, Inc., 39 Mass. App. Ct.
1, 3 (1995). See also G. L. c. 149, § 29C, on which the judge
relied in determining that the indemnity clause was not
12 enforceable.11 There was no evidence that Nolette caused the
injury which led to this lawsuit. To the contrary, based on the
evidence presented at trial, which established that CT Install
improperly measured the windows, delivered windows that were not
the same ones the Tabachniks had intended to purchase, failed to
obtain the necessary building permits, and told Nolette not to
return to the jobsite, we discern no error in the verdict in
favor of Nolette.
f. Appellate attorney's fees. The Tabachniks have
requested an award of their appellate attorney's fees. They are
entitled to those fees for the appeal of the c. 93A claim. The
Tabachniks may, within fourteen days of the issuance of the
rescript in this case, submit a detailed and supported
submission of the fees sought, in accordance with the procedures
set forth in Fabre v. Walton, 441 Mass. 9, 11 (2004). CT
Install will have fourteen days thereafter to file a response.
Conclusion. In all respects other than the damages award,
the amended judgment is affirmed. The damages award is vacated
as to the amount of damages awarded to the Tabachniks. The case
11General Laws c. 149, § 29C, provides in relevant part as follows: "Any provision for or in connection with a contract for construction, reconstruction, installation, alteration, remodeling, repair, demolition or maintenance work, . . . which requires a subcontractor to indemnify any party for injury to persons or damage to property not caused by the subcontractor or its employees, agents or subcontractors, shall be void."
13 is remanded to the Superior Court for entry of a new damages
award of $151,700.
So ordered.
By the Court (Vuono, Meade & Walsh, JJ.12),
Assistant Clerk
Entered: February 12, 2024.
12 The panelists are listed in order of seniority.