Linthicum v. Archambault

• Decision Date: 19 December 1979
• Citation: 379 Mass. 381,398 N.E.2d 482
• Parties: Donna LINTHICUM v. Joseph E. ARCHAMBAULT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 482

398 N.E.2d 482

379 Mass. 381

Donna LINTHICUM v. Joseph E. ARCHAMBAULT.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 14, 1979.

Decided Dec. 19, 1979.

Vida K. Brack, Worcester, for plaintiff.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

At issue is whether the plaintiff, who prevailed on a breach of contract claim, is entitled to additional relief under G.L. c. 93A. The trial judge found and ruled that the "plaintiff had a conventional claim in contract for breach of contract and of implied warranty for a reasonably good and workman-like performance." The judge awarded the plaintiff damages for breach of contract but declined to consider her claims under G.L. c. 93A. The plaintiff appealed and we granted her motion for direct appellate review. ¹ We hold that the plaintiff established a claim under G.L. c. 93A, § 11, and is entitled to attorney's fees and costs, but not to multiple damages. Thus, we reverse the judge's finding and ruling as to waiver ² of the claims for costs and attorney's fees, but affirm his refusal to award multiple damages.

The plaintiff, co-owner of a duplex house, which she had been renting to others from approximately August, 1975, received a complaint from a tenant in August, 1976, as to a leak in the front hallway area. At that time the plaintiff was preparing the other side of the house for new tenant occupancy. The plaintiff decided to have the roof of the duplex dwelling reshingled and she discussed the roofing job with the defendant.

On August 10, 1976, the defendant and the plaintiff signed a contract. The defendant agreed to reshingle the roof of the entire dwelling "in a workman-like manner according to standard practices" for $1,800. Shortly thereafter the plaintiff joined her husband, who was then stationed in California on military duty. ³ The plaintiff paid the defendant promptly on being notified that the job was completed.

Although defects in the workmanship became apparent in the fall of 1976, the plaintiff did not complain to the defendant until the spring of 1977 when she returned to Massachusetts. ⁴ At that time the plaintiff notified the defendant of her dissatisfaction with his work. The defendant told the plaintiff that he would make some minor corrections, an offer which the plaintiff refused. The plaintiff and her husband moved into the house in July, 1977. The plaintiff then sent a demand letter pursuant to G.L. c. 93A, § 9(3), to which the defendant made no written response, and thereafter commenced this lawsuit. After a trial, the plaintiff prevailed on the contract claim, but the judge declined to give the plaintiff any relief pursuant to her G.L. c. 93A claim.

The plaintiff's principal argument on appeal is that it was error for the judge to refuse to consider her claim under G.L. c. 93A. In this contention the plaintiff is clearly correct. As we have previously stated, G.L. c. 93A "is a statute of broad impact which creates new substantive rights and provides new procedural devices for the enforcement of those rights." Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693, 322 N.E.2d 768, 772 (1975). Such relief is in addition to, and not an alternative to, traditional tort and contract remedies. York v. Sullivan, 369 Mass. 157, 164, 338 N.E.2d 341 (1975). See Heller v. Silverbranch Constr. Corp.,--- Mass. ---, --- ^A, 382 N.E.2d 1065 (1978). The position adopted by the trial judge was specifically rejected in Slaney. "(W)here equity jurisdiction is specifically conferred by statute, it is no objection that the plaintiff also has a plain, adequate, and complete remedy at law." Slaney, supra, 366 Mass. at 700, 322 N.E.2d at 777. Therefore, it was error for the trial judge to refuse relief under c. 93A because it was "unnecessary to secure adequate relief for said plaintiff," or because the plaintiff would thereby find herself "in a better position than she would have been in had the defendant fulfilled his contractual obligations." Of course, a judge can refuse the requested relief if he or she rules that the plaintiff has not proved a right to relief, but that is a far cry from the action taken by the trial judge in the instant case.

We turn to the plaintiff's further argument that the pleadings and the judge's findings of fact show that she is entitled to relief under G.L. c. 93A, § 9, as matter of law. ⁵ Under the applicable version of the statute, relief under c. 93A was open to two classes of people. Section 9 governed private actions by consumers, persons who purchased or leased goods, services or property primarily for personal, family or household purposes. Section 11 provided remedies for those engaged "in the conduct of any trade or commerce." In order to recover under § 9 (as then in effect), a party was required to show: first, that he or she purchased or leased goods, services or property, real or personal primarily for personal, family or household purposes; second, that the defendant used or employed an unfair or deceptive act or practice; ⁶ third, that the complaining party suffered loss of money or property, real or personal, as a result; and fourth, that a proper written demand for relief was sent to prospective defendants at least thirty days prior to filing the complaint. G.L. c. 93A, § 9(1), (3), as amended through St.1978, c. 478, § 45.

The main issue on which there is a dispute is whether the plaintiff's contract is one primarily for personal, family or household purposes. If the plaintiff is a personal consumer, she is entitled to relief under § 9. The plaintiff relies on the pleadings to establish her status as a § 9 consumer. She claims that the defendant's answer contains an admission that the contract is a "consumer contract" and hence she is entitled to multiple damage relief under § 9. The record does not bear out the plaintiff's claim.

The defendant admitted the contract was a "consumer contract" for purposes of the breach of implied warranty claim ⁷ but specifically denied the allegations contained in the plaintiff's complaint concerning G.L. c. 93A, with the exception that he admitted receipt of the plaintiff's demand letter, to which he made no written response. Rule 8(e)(2) of Mass.R.Civ.P., 365 Mass. 74 b(1974), authorizes a party to "set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses" and to "state as many separate claims or defenses as he has regardless of consistency." A litigant pleading inconsistent or alternative defenses under Rule 8(e)(2) "does not thereby run the risk of being held to have unwittingly pleaded himself into a . . . judgment." Little v. Texaco, Inc., 456 F.2d 219, 220 (10th Cir. 1972). Therefore, alternative or inconsistent pleadings may not be used as binding judicial admissions. See Continental Ins. Co. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971). See also Giannone v. United States Steel Corp., 238 F.2d 544, 547-548 (3d Cir. 1956). See generally 5 C. A. Wright & A. R. Miller, Federal Practice and Procedure §§ 1282 and 1283 (1969). Prior practice is to the same effect. "(F)acts stated in pleading one separate and complete defence cannot be used in determining the issue upon another separate and complete defence." Herman v. Fine, 314 Mass. 67, 69-70, 49 N.E.2d 597, 599 (1943). Accord, Stone & Webster Eng'r Corp. v. First Nat'l Bank & Trust Co., 345 Mass. 1, 4, 184 N.E.2d 358 (1962); Beacon Motor Car Co. v. Shadman, 226 Mass. 570, 578, 116 N.E. 559 (1917); 4 J. Wigmore, Evidence § 1064(2), at 70 (Chadbourn rev. 1972); McCormick, Evidence § 265, at 634 (2d ed. 1972). Thus the plaintiff may not rely on the "admission" to an allegation in another count to establish her status as a § 9 consumer. The defendant's express denial of the claim under c. 93A, § 9, required the plaintiff to prove that she purchased goods or services primarily for personal, family or household purposes.

The facts found by the judge show that at the time the contract was signed the plaintiff had received a complaint from one tenant and was preparing the other half of the duplex house for new tenant occupancy. Thereafter, the plaintiff rented the entire dwelling and left for California. The judge ruled that the plaintiff had "not purchased goods or services primarily for personal, family or household purposes within the meaning of G.L. c. 93A, § 9." ⁸ But cf. Lantner v. Carson, --- Mass. ---, --- ^B, 373 N.E.2d 973 (1978) (c. 93A, § 9, inapplicable to sale of residence by individual homeowner).

By the express language found in § 1 of G.L. c. 93A, a person who rents real property is engaged in "trade" or "commerce." Since the plaintiff was using the entire house as rental property at the time she purchased the defendant's services, she was acting in a business context and thus, engaging in "trade" or "commerce." Although the plaintiff was occupying one-half of the duplex house ⁹ at the time the demand letter was sent as well as at the time of trial, that fact does not make erroneous the judge's ruling that the plaintiff did not purchase goods or services primarily for personal, family or household purposes.

The judge's finding, however, that there was a material and substantial breach of warranty provides the plaintiff with ample basis for recovery under § 11. ¹⁰ See G.L. c. 93A, § 2; Slaney v. Westwood Auto, Inc., 366 Mass. 688, 702, 322 N.E.2d 768 (1975); Attorney General's Rules and Regulations, 940 Code Mass.Regs. § 3.08(2) (1978). ¹¹ Nothing in the plaintiff's complaint or request for rulings precludes such relief.

Under § 11 the plaintiff's damages are limited to actual damages if the breach of warranty is not a wilful or knowing violation of § 2. Cf. Heller v. Silverbranch Constr. Corp., --- Mass. ---, --- ^C, 382 N.E.2d 1065 (1978). The judge specifically ruled that the defendant's breach of the contractual warranties was not...