Williams v. Perrault

2011 Mass. App. Div. 180
CourtMassachusetts District Court, Appellate Division
DecidedJuly 19, 2011
StatusPublished
Cited by1 cases

This text of 2011 Mass. App. Div. 180 (Williams v. Perrault) 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
Williams v. Perrault, 2011 Mass. App. Div. 180 (Mass. Ct. App. 2011).

Opinion

Per Curiam.

Plaintiffs Tina and Glenn Williams contracted with Lawrence D. Perrault, doing business as Granite State Refacing, LLC (“Perrault”), for renovations to their Tewksbury home. Unsatisfied with the work, the plaintiffs commenced this action in June, 2008, alleging a number of claims, including breach of contract and violations of G.L.c. 142A and G.L.c. 93A.4 Perrault counterclaimed for breach of contract and abuse of process. The case was tried to a jury, which returned a verdict for the plaintiffs on both their complaint and the counterclaims, but awarded no damages. Thereafter, the trial judge, who had reserved the G.Lc. 93A claim, found in favor of the plaintiffs based on Perrault’s violation of G.L.c. 142A, and awarded the plaintiffs nominal damages, plus attorney’s fees and costs. Following the entry of judgment, Perrault filed this Dist/Mun. Cts. R. A. D. A. 8C appeal of the trial judge’s G.L.c. 93A award.

[181]*1811. As a preliminary matter, we note that the trial judge did not make separate findings of fact and rulings of law on the reserved G.L.c. 93A claim, but instead endorsed the plaintiffs’ requests for findings and rulings as follows: “In so far as they constitute same, I adopt the findings and rulings set forth herein as my own.” The trial judge’s adoption of the plaintiffs’ requests by endorsement ran afoul of Mass. R. Civ. R, Rule 52(c), which requires a District Court judge who sits without a jury, where any party has submitted before the beginning of closing arguments proposed findings and rulings,5 to “find the facts specially and state separately [his] conclusions of law thereon.” See B. Thomas Heinzer Assocs., Inc. v. Xarras, 2010 Mass. App. Div. 218, 219. Further, the trial judge’s apparently wholesale adoption of the plaintiffs’ proposed findings and rulings is a practice that has long been discouraged. See, e.g., Care & Protection of Olga, 57 Mass. App. Ct. 821, 823 (2003) (practice “diminishes the integrity of the trial process and the respect with which the final result is viewed”); Mankino, U.S.A. v. Metlife Capital Credit Corp., 25 Mass. App. Ct. 302, 314 (1988) (practice creates “gnawing doubt” about how much the judge “injected his own intelligence into the process”).

But even when a trial judge adopts findings in their entirety from prevailing counsel, those findings are not to be automatically rejected. First Pa. Mtge. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 622 n.12 (1985); Care & Protection of Olga, supra at 824-825. We continue to review such findings under the clearly erroneous standard, but they are “subjected to stricter scrutiny.” Adoption of Hank, 52 Mass. App. Ct. 689, 693 (2001), quoting Cormier v. Carty, 381 Mass. 234, 237 (1980).

2. Given the trial judge’s noncompliance with Rule 52(c), and the resulting “stricter scrutiny,” we draw our factual summary from the uncontested facts of record. The plaintiffs met with Perrault, a home improvement contractor with his place of business in New Hampshire, at their Tewksbury, Massachusetts home in April and May, 2007 to discuss the renovation of their kitchen. The parties entered into a contract on June 14,2007 that called for the installation of new cabinets, granite counter top, sink, and appliances. The total price of the contract was $14,500.00, with a $4,800.00 deposit and the balance to be paid upon completion. The date of installation was July 9, 2007.

Work progressed slowly. The kitchen cabinets were delivered at the end of July, 2007 and in the wrong color. Perrault also requested at that time, and received, a second payment of $4,800.00. During August, the parties discussed how to proceed. In early September, the plaintiffs sent a “master plan” to Perrault by e-mail. The plan not only listed in greater detail the materials to be furnished and labor performed by Perrault, but also requested the installation of a hardwood floor and recessed lighting under the cabinets. Upon receipt of that plan, Perrault ordered replacement cabinets. He assented to the plan by e-mail on October 1, 2007.

In early October, 2007, plaintiff Tina Williams’ brother, Thomas Craven (“Craven”), a New York attorney, sent a letter to Perrault to inform him that the project was terminated, and that he was no longer permitted to work on the property. But the replacement cabinets then arrived, and despite Attorney Craven’s letter, the plaintiffs permitted Perrault to commence work. From the middle to the end of [182]*182October, Perrault installed the replacement cabinets, counter top, sink, floor, appliances, and recessed lighting. He left the project with only a punch list of items to complete. At no time did the parties discuss, or obtain, any building, electrical, or plumbing permits.

Dissatisfied with the work, the plaintiffs had Attorney Craven issue another letter, dated December 11, 2007, to Perrault that expressed the plaintiffs’ displeasure with his lack of “professionalism” and “workmanship,” demanded return of the $9,600.00 the plaintiffs had already paid, and threatened suit for damages. At Perraulfs request, George Kenney (“Kenney”), a kitchen and bath contractor, visited the site in December, 2007 and estimated that it would cost $3,000.00 to repair the kitchen. The plaintiffs then contacted Jennifer Lemoyne (“Lemoyne”), a kitchen designer, who visited the site in March, 2008 and estimated $12,681.00 as the cost of repair. The plaintiffs brought this suit in June, 2008. Thereafter, in February, 2009, the plaintiffs hired S.P. Jackson Building & Remodeling L.L.C. (“S.P. Jackson”) to demolish and renovate the kitchen for the price of $14,480.00.

At trial, Steven Jackson (“Jackson”), a licensed construction supervisor and owner of S.P. Jackson, testified that only a licensed construction supervisor or the homeowner may apply for and obtain a building permit in Massachusetts; that Perrault’s work was “poorly done” and “incorrectly done”; and that before Jackson commenced work on the plaintiffs’ kitchen in March, 2009, he obtained a building permit from the town of Tewksbury for the removal and reinstallation of hardwood flooring and kitchen cabinets “[bjecause it’s required.” Jackson further testified that he subcontracted with a licensed electrician and plumber, who obtained respective permits from the town. Ron O’Connor (“O’Connor”), the master electrician with whom S.P. Jackson subcontracted to perform rough and finish wiring, testified that an electrical permit is required for the performance of any electrical work, that he obtained such a permit for the plaintiffs’ project, and that the wiring beneath the cabinets was “not proper,” a “fire hazard,” and did not meet code requirements. Finally, David Silva (“Silva”), a master plumber, testified as an expert that a plumbing permit was required to disconnect the sink, and that the dishwasher drain was improperly installed and did not satisfy code requirements.

Perrault testified that he did not possess a construction supervisor’s license in 2007, and that he did not obtain a building, electrical, or plumbing permit before commencing work in the plaintiffs’ kitchen. Although he testified that he had visited the town building department sometime before signing the contract and had been told that a building permit was not required to remove and install replacement kitchen cabinets, Perrault was unable on cross-examination to provide the name, or gender, of such person.

On these facts, the trial judge ruled that Perrault had violated G.L.c. 142A, and, thus, G.L.c.

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Bluebook (online)
2011 Mass. App. Div. 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-perrault-massdistctapp-2011.