Berish v. Bornstein
| Decision Date | 22 May 2006 |
| Docket Number | BACV198800372A |
| Citation | 2006 MBAR 224 |
| Parties | Stephen Berish et al.[1] v. Stuart Bornstein[2] et al.[3] |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Connon, Richard F., J.
The plaintiff condominium trustees ("the Trustees") filed this action against the developer of the Cotuit Bay Condominiums, Stuart Bornstein ("Bornstein"), the original trustees of the unit owners' association, and the general contractor of the development, Cotuit Bay Condominium, Inc. ("CBC"), alleging numerous construction defects. This matter is before this Court on a remand from the Supreme Judicial Court for trial of negligence and breach of warranty claims which were improperly dismissed. See 437 Mass. 252 (2002).
The relevant counts of the Trustees' Third Amended Complaint filed on November 15, 1988, alleged negligence by Bornstein (Count I) and CBC (Count II), misrepresentation by Bornstein (Count IX), breach of the implied warranty of habitability by Bornstein (Count X), breach of fiduciary duty by Bornstein (Count XI), breach of contract by Bornstein (Count XII) violation of Chapter 93A by Bornstein (Count XIII), and breach of fiduciary duty by the other original trustees (Counts XIV through XVII). Prior to trial, in December of 1993, this Court (O'Neill, J.) dismissed Counts I and II based on the economic loss doctrine, and dismissed Count X on the ground that Massachusetts did not recognize a cause of action for breach of implied warranty arising from the sale of a condominium. The Trustees filed, without success, a petition in the Appeals Court seeking relief from the order of dismissal. In denying said petition, Dreben, J. wrote "that.á.á. it is suggested that any additional otherwise admissible evidence, if any, is only relevant to the dismissed counts also be admitted.", Appeals Court Docket No. #94-J-35.
The remaining claims proceeded to trial before a Master between January 3, 1994 and January 24, 1995. The Master permitted evidence regarding construction defects, over the defendant's objections, insofar as such evidence might be relevant to the remaining counts of the complaint. The Master stated, "Some of my findings.á.á. with regard to Counts XI, XIV, XV and XVI, are relevant to any potential revived claims for negligence."
In an Amended Report dated September 14, 1999, the Master found in favor of Bornstein on the misrepresentation and Chapter 93A claims. The Master found in favor of the Trustees on the breach of contract claim for failure to pay common area fees in the amount of $36,223. The Master found in favor of the Trustees on the breach of fiduciary duty claim against Bornstein for failure to repair certain construction detects. The Master interpreted a February 28, 1997 order of this Court (O'Neill, J.) as requiring him to limit his findings of breach of fiduciary duty to defects in the common area of which Stuart Bornstein had actual notice during his tenure as a trustee of the Association Trust. The Master found such notice of the major defect of a lack of flashing or improper flashing in areas including the sliders, skylights, outside enclosures of the chimneys, windows, and roofs. Accordingly, the Master awarded damages in the amount of $104,022.70 to repair and/or replace the outside decks in certain units,[4] the flashing around the skylights and roofs in certain units,[5] and the flashing around all the slider doors in the condominium.[6]
The Master also found defects in the bathroom exhaust venting systems, the attic venting system, and the improper fastening of certain chimneys to the building roofs, but found that Bornstein did not have notice of these defects in his capacity as a Trustee. In an Appendix to his report entitled "Alternate Bindings and Conclusions of LawùOther Common Area Defects," the Master found that had he not been restricted by the court, he would have awarded the plaintiffs an additional $191,605.00 to repair these defects.
On appeal, the Supreme Judicial Court held that an implied warranty of habitability attaches to the sale of residential condominium units by builder-vendors. See, 437 Mass. at 263. In addition, the Court reversed the dismissal of the negligence claims on the ground that the Trustees might be able to prove property damage beyond the defects in the condominium units themselves. The Supreme Judicial Court remanded Counts I, II and X to this Court for trial, and this Court held hearings commencing on January 10, 2005 and concluding on April 7, 2005. Based on the credible evidence presented, and the reasonable inferences to be drawn therefrom, this Court makes the following findings of fact.
The first claim that the Court is to consider is the windows and the lack of window flashing. Ronald Schmidt ("Schmidt"), a project manager who was in charge of the building at Cotuit Bay Condominiums for the Defendants, was in control of selecting suppliers and supervising construction. He was at the site between 45 to 50 hours per week from the period of November 1980 through January 1986. Schmidt testified that "the windows were self-flashed," which means that the windows came with a flashing already attached. Ralph Crossen ("Crossen"), an expert who testified on behalf of the Defendants, stated that the 1980 Building Code "allows self-flashing windows to stand alone without additional flashing." Under Section 3607.3.8 of the State Building Regulations and Standards:
approved corrosion resistive flashing shall be provided at the top and sides of all exterior windows and door openings in such a manner as to be leak-proof, except that self-flashing windows having a continuous lap of not less than one and three-eighth inches (28 mm) over the sheeting material around the perimeter of the opening, including corners, do not require additional flashing.á.á.
There was never any requirement that there be flashing at the bottom of the windows, although the evidence strongly suggests that, of those windows inspected, there were gaps at the bottom corners large enough to insert a pencil. Under the building code and the standards of the industry, no flashing is required at the bottom of these windows. In addition, the evidence strongly suggests that none of the windows were caulked. Normally this would be observable by the caulk oozing from the side of the windows, which is some evidence that the caulk had been placed underneath the windows prior to their placement. The Court further finds from the evidence that there was no flashing or caulk on any of the clerestory windows.
Burt Kaplan ("Kaplan"), the owner of Unit 24 and a trustee of Cotuit Bay from July of 1984 through July of 1986, moved in in June of 1983 and became aware that, during the winter from 1983 to 1984, extreme cold was coming from the windows in his unit. He placed a knife through the sides and came to the conclusion that there was no flashing. In order to prevent the draft, he caulked the areas on several occasions. Subsequently, the windows were replaced because of water leaks.
The records maintained by the Condominium Association were on a computer program, and Kaplan was the only one who had access to that program. On the only occasion when he accessed the information, he was only able to retrieve some but not all of the information. He was able to determine that the following units had their windows replaced: Unit 21 because of leaks, Unit 22 because of leaks, Unit 24 because of leaks, Unit 27 because of leaks, Unit 28 because it was not weather tight, Unit 30 as it was not weather tight, Unit 61 because of leaks, Unit 75 also because of leaks, Unit 77 because it was not air tight, and Unit 88 because it was not air tight. Of all of the windows at Cotuit Bay Condominiums, only 36 windows have been replaced. Kaplan assumed that if the windows of all other units were similar to his, those windows, like his, were not properly flashed, although he never conducted any destructive testing. In June of 1983, Kaplan was aware of leaks resulting from defects in the common areas of the building. In addition to the leaks he experienced in his own Unit 24, there were leaks within the building itself in common areas.
There is no documentation concerning the 36 windows that were replaced, nor any explanation as to the causes of those leaks. There is no dispute that the windows leaked in this newly-constructed condominium. When the windows were replaced, the Owners Association paid for the cost of replacement. The decision whether to replace the windows was made by Kaplan, who developed a criteria along with the Condominium Association. The Trustees are seeking reimbursement for the replaced windows; however, there are no records on the 36 windows, including the costs.
The Trustees presented an expert, Christopher Wharton ("Wharton"), with a Bachelor of Science in Marketing. Wharton testified that he had never testified in court before, and that his experience was as a window salesman in Southeastern Massachusetts from 1993 to 1998. He further testified that he was not familiar with the State Building Code and that he is currently the owner of a company which sells aluminum windows. He has personally installed thousands of windows over the years and is not familiar with the term "self-flashing," although it is referenced in the State Building Code. Wharton was permitted to testify as to the industry standards in 1993 when he first began his career as a sales rep in Southeastern Massachusetts.
Wharton visited the Cotuit Bay Condominiums in January of 2003....
To continue reading
Request your trial