SHOUTOV v. LD ASSOCIATES INC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a de novo bench trial,³ judgment entered in favor of the plaintiffs and they were awarded $1,960 on their breach of warranty claim, double damages under G. L. c. 93A in the amount of $3,920, and attorney's fees in the amount of $5,000. The largest component of the compensatory damages award was $1,000 attributable to repainting an upstairs bedroom. The smallest component was $40 attributable to chiseling concrete from the garage floor. On appeal, the defendant argues that there was no evidence that the plaintiffs gave timely written notice of these two defects and, therefore, that the plaintiffs failed to prove their breach of warranty claim to that extent. The defendant does not challenge the other components of the compensatory damages award, which we have set out in the margin.⁴ Because we agree that there was no evidence that the plaintiffs gave timely written notice of the two challenged defects, we vacate that portion of the compensatory damages award, and remand for the trial judge to consider whether any adjustment should be made to the G. L. c. 93A award or to the award of attorney's fees.

On December 20, 2012, the parties entered into a purchase and sale agreement whereby the plaintiffs agreed to purchase a new condominium constructed by the defendant. Among other things, the agreement provided:

“The Seller warrants to the Buyer that all materials and equipment furnished under this Agreement will be new, and that all work will be of good quality, free from default and defects and in conformance with the Plans and Specifications. The Seller shall remedy any defect due to faulty materials, equipment, or workmanship which appears in the period of one (1) year from the date on which an unconditional Certificate of Occupancy is issued by the Lenox Building Inspector, provided that, within such one (1) year period, the Buyer gives the Seller written notice specifying exactly the nature of the defect.”

The question here is whether written notice was timely regarding the mismatched paint in the upstairs bedroom and the need to chisel concrete off the garage floor. The plaintiffs bore the burden of proving that notice was given within the required timeframe. Monroe Auto Equip. Co. v. Bloom, 326 Mass. 65, 67 (1950) (party asserting breach of warranty bears burden to prove notice of breach); Murphy v. Gilchrist Co., 310 Mass. 635, 637 (1942) (same); Jamrog v. H.L. Handy Co., 284 Mass. 195, 198 (1933).

There was no evidence that timely notice was given to the defendant regarding either of the two defects. Contrary to the plaintiffs' contention, their letter of July 8, 2014, could not reasonably be interpreted to have notified the defendant of the mismatched paint in the bedroom. That letter only mentioned that “[f]lat and semi-gloss paints are mixed on [s]tairway hall walls,” and made no mention of any problem with paint in the bedroom. Similarly, the plaintiffs' November 9, 2013 punch list said nothing about chiseling concrete from the garage floor. Instead, it stated only to “clean garage floor again.” Setting aside the question whether this statement could reasonably be construed as notice that concrete needed to be chiseled from the floor (a matter about which we have serious doubt), see Jamrog, 284 Mass. at 198-199 (notice may be subject to reasonable interpretation), the plaintiffs were satisfied that the work was “done” as of July 8, 2014.

The plaintiffs argue that the defendant waived the lack of notice by not raising the defense until its posttrial motion for reconsideration. T.B. Merritt, Consumer Law § 6:73 (3d ed. 2010) (“a failure to raise lack of notice as an affirmative defense at trial will waive the issue”). In this case, however, plaintiffs had not previously raised either of the two defects. We note, for example, that neither defect was part of the small claims judgment, nor were they specified in the pretrial memorandum before the de novo trial. There is nothing in the appellate record to show that the defendant was on notice that either of these defects were part of the case and, hence, there would have been no reason for the defendant to raise lack of notice as an affirmative defense to them.

For these reasons, we vacate so much of the judgment awarding the plaintiffs $1,000 for repainting the bedroom and $40 for chiseling concrete from the garage floor. We remand to permit the trial judge to make any adjustment she deems appropriate to the damages award pursuant to G. L. c. 93A and to the attorney's fees award. We deny the plaintiffs' request for attorney's fees on appeal.

So ordered.

Vacated and remanded

FOOTNOTES

3.   The parties originally tried the case in the small claims session, where the plaintiffs were awarded the jurisdictional maximum of $7,000.

4.   The remaining components of the award were for repairing grout in the master bath ($100), putting a second coat of finish on the handrail ($500), installing two towel bars in the upstairs bath ($120), repairing weather-stripping in the garage ($100), and plugging a gap in the screen porch ($100).