Downey, et al. v. Chutehall Construction Co. (Lawyers Weekly No. 11-001-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1062 Appeals Court CHRISTOPHER DOWNEY & another[1] vs. CHUTEHALL CONSTRUCTION CO., LTD. No. 14-P-1062. Suffolk. September 14, 2015. – January 6, 2016. Present: Cypher, Green, & Hanlon, JJ. Consumer Protection Act, Unfair or deceptive act, Waiver. State Building Code. Waiver. Practice, Civil, Consumer protection case, Summary judgment, Instructions to jury, Waiver. Civil action commenced in the Superior Court Department on July 2, 2010. Motions for summary judgment were heard by Judith Fabricant, J., and the case was tried before Thomas A. Connors, J. Alicia L. Downey for the plaintiffs. John D. Fitzpatrick for the defendant. HANLON, J. After a trial, the jury returned a verdict for the defendant, Chutehall Construction Co., Ltd. (Chutehall). The plaintiffs, Christopher and Mairead Downey, appeal from the resulting judgment. Their appeal presents a narrow issue — whether a contractor’s potential liability for a violation of the relevant building code, which, pursuant to G. L. c. 142A, § 17(10), constitutes a per se G. L. c. 93A violation, is waived when a homeowner requests that the work be done in a manner that results in the code violation.[2] We agree with the Downeys that, at least in the circumstances of this case, an oral waiver of building code requirements by the homeowner does not preclude the contractor’s liability for a building code violation — and the resultant c. 93A violation — particularly where a violation carries potential public safety consequences. Background. The jury could have found the following facts. The Downeys hired Chutehall in 2005 to replace the roof and a roof deck on their townhouse in the Beacon Hill section of Boston. It is undisputed that the building code permits no more than two layers of roofing on the building. See 780 Code Mass. Regs. § 1512.3 (1997). The original proposal that Chutehall submitted to the Downeys, as well as the final bill, included a line item for stripping off the existing roof system. In fact, however, Chutehall did not strip the roof, but instead installed a new rubber membrane over the existing roof. Sharply disputed at trial was whether Christopher Downey represented to Chutehall that there was only one layer of roofing at the time of the work; refused to permit Chutehall to strip the existing layers from the roof; refused to permit Chutehall to do test cuts in the roof to determine […]
Downey, et al. v. Chutehall Construction Co., Inc., et al. v. The Follett Company, Inc. (Lawyers Weekly No. 11-149-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-819 Appeals Court CHRISTOPHER DOWNEY & another[1] vs. CHUTEHALL CONSTRUCTION CO., LTD.; THE FOLLETT COMPANY, INC., third-party defendant. No. 13-P-819. Suffolk. September 15, 2014. – November 13, 2014. Present: Berry, Kafker, & Carhart, JJ. Libel and Slander. Consumer Protection Act, Unfair or deceptive act. Privileged Communication. Evidence, Opinion, Privileged communication. Practice, Civil, Summary judgment, Entry of judgment. Civil action commenced in the Superior Court Department on July 2, 2010. A motion for partial summary judgment was heard by Judith Fabricant, J., and entry of final and separate judgment was ordered by her. John D. Fitzpatrick for Chutehall Construction Co., Ltd. Heather Gamache for The Follett Company, Inc. KAFKER, J. Homeowners Christopher and Mairead Downey (the Downeys) hired a contractor, The Follett Company, Inc. (Follett), to investigate the cause of their leaky roof. Follett reported that the roof had been installed a number of years earlier over fiberboard roof insulation that was soaking wet, thereby causing the later leakage. The Downeys then sued the installer of the roof, Chutehall Construction Co., Ltd. (Chutehall), for substandard workmanship, and Chutehall brought third-party defamation and G. L. c. 93A claims against Follett, asserting that the statement about installing the roof over the soaking wet fiberboard insulation was false and defamatory. A Superior Court judge granted Follett’s motion for summary judgment on Chutehall’s claims against Follett. Follett then filed a motion for the entry of a separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), which Chutehall opposed. The judge allowed Follett’s motion, judgment entered, and this appeal followed. On appeal, Chutehall argues that the judge erred in deciding as a matter of law (1) that Follett’s report about the roof constituted a statement of opinion not fact, (2) that Follett was not negligent in making the statement, and (3) that the statement was protected by a conditional privilege. Chutehall also argues that the judge erred in allowing the motion for entry of separate and final judgment. We conclude that the statement by Follett was protected by a conditional privilege that was not abused, and therefore, summary judgment was properly allowed on the defamation claim. As the c. 93A claim depends on the merits of the defamation claim, summary judgment was properly allowed on this claim as well. There was no error in the […]