2017 Mass.App.Div. 160, Rock Built Restoration, LLC v. Deacon

Citation:2017 Mass.App.Div. 160
Opinion Judge:CRANE, J.
Attorney:Russell S. Channen for the plaintiff. Jonas A. Jacobson for the defendant.
Judge Panel:Present: Coven, P.J., Crane & Nestor, JJ.
Case Date:October 31, 2017
Court:Massachusetts Appellate Division

2017 Mass.App.Div. 160




Massachusetts Appellate Division, District Court Department, Northern District

October 31, 2017

May 26, 2017

Russell S. Channen for the plaintiff.

Jonas A. Jacobson for the defendant.

Present: Coven, P.J., Crane & Nestor, JJ.


The plaintiff, Rock Built Restoration, LLC ("Rock Built"), is a flooring contractor that provided labor and materials to repair water damage caused by the failure of a hot water heater in the basement of the home of defendant Alan Deacon ("Deacon"). Deacon is also a painting contractor. After a jury-waived trial, the court found for the plaintiff and awarded it $10,757.66. The court also found for the plaintiff on all of the defendant's counterclaims for negligence, breach of contract, unjust enrichment, and violation of G.L. c. 93A. The defendant appeals.

Deacon asserts that it was error: 1) to find that Deacon failed to mitigate damages when he filed his counterclaim for breach of warranty within the warranty period; 2) to find that it was disingenuous of Deacon to seek to avail himself of the provisions of G.L. c. 142A and G.L. c. 93A; 3) to require that Deacon provide evidence of actual damages arising from the absence of any provisions of the contract set forth in G.L. c. 142A and the regulations pursuant thereto; and 4) to find that Rock Built's installation of certain flooring did not violate G.L. c. 93A.

1. Factual background. We summarize the findings of the trial court that are relevant to this appeal.

Deacon's home, at 174 Russell Street, Littleton, Massachusetts, was damaged by water that leaked from a hot water heater. The repairs required replacement of the wood floor in part of the basement and a cedar closet as well as drywall and painting. The cost of all of these repairs was included in whatever settlement Deacon reached with his homeowner's insurer before any work was commenced.

Deacon contacted Andrew Radar ("Radar"), a manager of Rock Built, seeking a proposal to perform the necessary repairs. Radar was experienced in the restoration of properties damaged by water. He also held a construction supervisor's license and a home improvement contractor's license, both issued by the Commonwealth of Massachusetts. Deacon also requested that: 1) the proposal include a price for painting and flooring; 2) that Rock Built permit Deacon to replace the drywall and paint it; and 3) that Rock Built grant Deacon a credit for this work against whatever the total charge Rock Built would present to Deacon, so that Deacon could present the full price to his insurer or lender.

Radar e-mailed written proposals to Deacon. Deacon also met with David Smolag ("Smolag") at his home to review what flooring material would be installed. Smolag was an experienced flooring contractor and employed by Messina Flooring as a subcontractor for Rock Built. Smolag told Deacon that the damaged flooring with foam

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attached was no longer available. He told Deacon that laminate flooring with a foam vapor underlayment pad would provide the same water barrier and acoustical performance. The parties then exchanged a series of e-mails to resolve details on the type of new flooring material that was to be...

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