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14-P-1062                                            Appeals Court

 CHRISTOPHER DOWNEY & another1    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).


    1
        Mairead Downey.
                                                                     2


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.

     2
       General Laws c. 142A, § 17, inserted by St. 1991, c. 453,
provides, in relevant part:

     "The following acts are prohibited by contractors or
     subcontractors: . . .

     "(10) violation of the building laws of the commonwealth or
     of any political subdivision thereof; . . .

     "Violations of any of the provisions of this chapter shall
     constitute an unfair or deceptive act under the provisions
     of chapter ninety-three A."
                                                                     3


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 the number of existing layers; and

specifically instructed Chutehall to install a new rubber

membrane over the existing roof.3

     A few years after Chutehall put on the roof, the Downeys

sought to install heating, ventilation, and air conditioning

(HVAC) equipment.   The HVAC contractor cut a hole through the

roof and discovered four layers of roofing materials and

evidence of leaking (that is, wet insulation).    The Downeys then

hired a new roofing contractor to strip the roofing materials,

put on a new roof, and reinstall the deck.




     3
       Given the verdict and the jury's answers to special
questions, it is likely that the jury accepted Chutehall's
version of the facts.
                                                                   4


     Thereafter, the Downeys filed this action against Chutehall

seeking to recover the costs of replacing the roof and the deck.4

The only claim at issue is the G. L. c. 93A claim, premised on

Chutehall's violation of the provision of the building code

prohibiting the installation of a new roof over two or more

layers of roofing, which, as noted earlier, in turn constitutes

a violation of G. L. c. 142A, § 17(10).   In a decision denying

the parties' cross motions for summary judgment, the motion

judge, relying on comments made in Reddish v. Bowen, 66 Mass.

App. Ct. 621, 625 n.10 (2006), ruled that a jury could conclude

that Chutehall's violation of the code was not knowing or

intentional if they found that Chutehall had relied on

statements from Christopher Downey that there was only one layer

of roofing on the roof.5


     4
       After the Downeys filed suit against Chutehall, Chutehall
brought third-party claims against The Follett Company, Inc.
(Follett), which had been engaged by the Downeys to inspect the
leaking roof. Follett also put on the new roof and reinstalled
the deck. Separate and final judgment entered in favor of
Follett, and the judgment was affirmed on appeal. 86 Mass. App.
Ct. 660 (2014).
     5
       Chutehall, citing Deerskin Trading Post, Inc. v. Spencer
Press, Inc., 398 Mass. 118, 126 (1986) (Deerskin), argues that
the Downeys waived review of this issue because they failed to
take an interlocutory appeal from the order denying their motion
for summary judgment. While Deerskin stands for the proposition
that the denial of a motion for summary judgment cannot be
reviewed after a case has gone to trial, it does not follow that
the issue raised in the motion is waived. Rather, the issue, if
it is sufficiently preserved at trial, is more appropriately
reviewed "on the record as it exists after an evidentiary trial
                                                                   5


     At trial, the Downeys filed a motion in limine, seeking to

exclude evidence of Christopher Downey's alleged representations

concerning the roof as well as his instructions to Chutehall not

to strip the roof, on the ground that a consumer's oral waiver

of building code requirements cannot be a defense to liability.

The trial judge denied the motion, referring to the earlier

ruling on summary judgment as the law of the case.6   In addition,

over the Downeys' objections, the judge instructed the jurors

that they could proceed to determine damages only if they found

that the building code was violated and that the violation was

not done at the insistence of the Downeys.7   That question also

was included on the verdict slip.8,9



than on the record in existence at the time the motion for
summary judgment was denied." Ibid. Indeed, any attempt by the
Downeys to appeal from the order denying their motion for
summary judgment would have been dismissed as interlocutory.
See, e.g., Rollins Envtl. Servs., Inc. v. Superior Ct., 368
Mass. 174, 178-180 (1975).
     6
       The trial judge did not rule on the summary judgment
motions.
     7
       "Now, jurors, I want to tell you the following. In this
case, Chutehall is contending that, whether or not there was a
violation of the Building Code, it took the action it took
under the contract in specific reliance on something it was
told by the Downeys. The Downeys dispute that fact.
This is part of the fact finding of what you have to do in
this case. So you're going to have to make a determination
whether or not there was a violation of the Building
Code . . . . You're then going to be given a separate question
about whether or not that conduct came in response and a
reliance on something they were asked to do, specifically, by
the Downeys and you're going to be asked whether or not -- to
                                                                      6


     In response to special questions, the jury found that

installation of a new roof over three preexisting layers

violated the building code, but that the violation was the

result of directions given by the Downeys.   Accordingly, they

did not assess damages.   The Downeys' complaint was dismissed

(as was Chutehall's counterclaim).

     Discussion.   The Downeys argue that the trial judge,

misinterpreting this court's comments in Reddish, erred when he

instructed the jury that a contractor may assert as a defense to

G. L. c. 93A liability under G. L. c. 142A, § 17, a consumer's

waiver of "safety-related provisions of the building code."      In

Reddish, a contractor "disregard[ed] . . . a six-foot side lot

setback requirement contained in a local zoning by-law" by

installing an in-ground swimming pool, not only in violation of

the setback requirement, but, also, with "a portion of the


determine, whether by preponderance of the evidence, you
determine that that factually did occur. It's a matter in
dispute in this case."
     8
       "If you determine there was a violation of the Building
Code but that it only happened because the Downeys expressly
told Chutehall to do the job in that particular way, if 10 of
your number agree that that's the way that it occurred, then you
would check 'Yes.' If 10 of your number agree that that's not
been proven, then you would check 'No.'"
     9
       Despite Chutehall's assertion that "it is unclear from the
record presented whether or if an objection to the challenged
instruction was preserved after the [jurors were] charged," from
the limited record before us, it appears that the issue was
sufficiently preserved.
                                                                         7


concrete apron encompassing the . . . pool imping[ing] upon the

Reddish [next door neighbor's] property."         66 Mass. App. Ct. at

622.   The violation of the setback requirement was the result of

misinformation provided to the contractor by the homeowner as to

the location of the property line and instructions by the

homeowner to place the pool at that location.         Id. at 623-624.

Also in Reddish, there was a written agreement between the

homeowner and the contractor that "contained a disclaimer

requiring [the homeowner] to verify the siting of the pool and

relieving [the contractor] from liability with respect to the

pool's location, whether on the [homeowner's] property or that

of a third party."    Id. at 623.    The trial judge concluded that

the express disclaimers, signed by the homeowner, "barred

recovery . . . on all but the G. L. c. 93A claim."        Id. at 625.

As to that claim, the judge concluded, and we agreed, that the

"improper location of the pool amounted to a violation of a

'building law' within the meaning of G. L. c. 142A, § 17(10),

and thus constituted an unfair or deceptive act under G. L.

c. 93A by operation of § 17."       Id. at 629.

       However, because the parties in Reddish failed to raise the

issue, we declined to consider whether the contractual

provisions and waivers of liability could operate as a defense

to the homeowner's c. 93A claim against the contractor and

"whether, even in a consumer context, there may be instances
                                                                   8


where an informed, consensual, and clear allocation of risk and

responsibility could preclude recovery by the consumer under

c. 93A for an unintentional statutory violation by a contractor,

incurred at the consumer's request and in reliance upon the

consumer's representations."   Id. at 626 n.10.

    This case presents that issue, that is, whether the jurors

properly were instructed that, if Chutehall violated the

building code "only . . . because the Downeys expressly told

Chutehall to do the job in that particular way," then the

Downeys' waiver is a complete defense to liability under c. 93A.

As we said in Reddish, supra at 626-627, "[o]f primary concern

here is the scope of G. L. c. 142A, § 17(10), which prohibits a

home improvement contractor from 'violat[ing] the building laws

of the commonwealth or of any political subdivision thereof,'

conduct that also 'shall constitute an unfair or deceptive act

under the provisions of chapter ninety-three A.'   G. L. c. 142A,

§ 17.   Generally speaking, by explicitly delineating certain

conduct on the part of contractors that shall also amount to a

consumer protection violation, G. L. c. 142A, § 17, reflects an

intent by the Legislature 'to facilitate a homeowner's c. 93A

remedies.'   Simas v. House of Cabinets, Inc., 53 Mass. App. Ct.

131, 137 (2001)."   General Laws c. 142A, § 17(10), inserted by

St. 1991, c. 453, explicitly "prohibit[s]" a contractor from

violating "the building laws of the commonwealth or of any
                                                                     9


political subdivision thereof," and as noted, it is undisputed

that installing a fourth layer of roofing, as Chutehall did, was

a violation of the relevant building code.

    However, "[a] statutory right or remedy may be waived when

the waiver would not frustrate the public policies of the

statute. . . .   A statutory right may not be disclaimed if the

waiver could 'do violence to the public policy underlying the

legislative enactment.'"    Canal Elec. Co. v. Westinghouse Elec.

Corp., 406 Mass. 369, 377-378 (1990), quoting from Spence v.

Reeder, 382 Mass. 398, 413 (1981).    See Garrity v. Conservation

Commn. of Hingham, 462 Mass. 779, 785-786 (2012) (permitting

waiver of conservation commission deadline does not interfere

with purposes of Wetlands Protection Act).    Accordingly, we must

determine whether, in these circumstances, a waiver of a

consumer's rights under c. 142A, § 17(10), specifically the

right to seek relief pursuant to c. 93A, would undermine the

public policy underlying c. 142A, § 17.

    We note first that "ordinarily [we] would not effectuate a

consumer's waiver of rights under c. 93A."    Canal Elec. Co., 406

Mass. at 378.    In fact, "[t]here is no language in G. L. c. 142A

that restricts . . . [a] homeowner's rights under G. L. c. 93A.

If anything, the statute reflects an intention to facilitate a

homeowner's c. 93A remedies."    Simas, 53 Mass. App. Ct. at 137.

Also, § 2 of G. L. c. 142A, inserted by St. 1991, c. 453, which
                                                                  10


stipulates the required contents of an "agreement to perform

residential contracting services in excess of one thousand

dollars," includes a command that such an agreement be in

writing and contain certain provisions, including the start and

finish dates of the work to be done; "a detailed description of

the work to be done and the materials to be used"; and "an

enumeration of such other matters upon which the owner and the

contractor may lawfully agree."   Furthermore, § 2(9) of G. L.

c. 142A specifically provides that "no such agreement may waive

any rights conveyed to the owner under the provisions of this

chapter" (emphasis supplied).

    Finally, the purpose of the building code as in effect

during the relevant time period, with which all contractors must

comply pursuant to c. 142A, § 17(10), "is to insure public

safety, health and welfare insofar as they are affected by

building construction, through structural strength, . . . and,

in general, to secure safety to life and property from all

hazards incident to the design, construction, reconstruction,

alteration, repair, demolition, removal, use or occupancy of

buildings, structures or premises."   780 Code Mass. Regs.

§ 101.4 (1997).   To permit a waiver by a homeowner of his or her

right to compel a contractor to comply with the contractor's

obligations under the building code would permit, even

encourage, contractors, and perhaps consumers, to waive
                                                                   11


provisions of the building code on an ad hoc basis, in the hope

of saving money in the short-run, but endangering future

homeowners, first responders, and the public in general.

    On balance, we are persuaded that, at least on the facts of

this case, where Chutehall's violation of the building code is

clear, where the written agreements specify that the "existing

roof system" would be "strip[ped] off and dispose[d] of," and

where there are possible consequences for the safety of the

homeowner and others, a consumer's oral waiver of a building

code requirement cannot defeat the contractor's liability for

the violation under G. L. c. 142A, § 17(10), and G. L. c. 93A.

    Here, the trial judge instructed the jurors that, in

addition to determining whether there was a violation under the

specified subsections of the building code, they must also find

whether that violation "came in response and a reliance on

something [Chutehall was] asked to do, specifically, by the

Downeys."   Later, in response to a question by the deliberating

jury, the judge instructed that the jurors must answer "an

additional question, . . . 'Was the conduct which violated the

Code the result of directions of the [Downeys] for

[Chutehall]?'"   In the circumstances of this case, the

instructions and special question submitted to the jury were

erroneous concerning the defense to liability.
                                                                  12


    "Having determined error, the next step in our analysis is

to determine whether the [Downeys have] made a plausible showing

that the trier of fact might have reached a different result."

Campbell v. Cape & Islands Healthcare Servs., Inc., 81 Mass.

App. Ct. 252, 258-259 (2012) (quotation marks and citation

omitted).   The jury found, by special verdict, that Chutehall's

violation of the building code was "the result of directions of

the [Downeys]."   In response to a question from the jury, they

were further instructed that, if they found that the violation

was the result of Downeys' directions, they need not proceed

further and need not assess damages.    Given the error in the

instruction and special verdict question, there is no doubt that

the jury would have reached a different result -- indeed, they

would have been compelled to do so upon their finding of the

building code violation.   As a result, reversal is required.10

In addition, because the jury found that Chutehall violated the

building code and we have concluded that Chutehall was not

entitled to a waiver defense in the circumstances of this case,

judgment on the c. 93A count premised on the c. 142A, § 17(10),

violation must enter for the Downeys.

    Accordingly, the judgment for Chutehall on the Downeys'

c. 93A count is reversed, and judgment shall enter for the

    10
       Given our view on the impropriety of the jury
instructions, we do not address any other arguments raised.
                                                                  13


Downeys on that count.   The matter is remanded for further

proceedings concerning damages on that count.11,12

                                    So ordered.




     11
       On remand, the judge properly may consider the jury's
findings when considering damages.
     12
       Having determined that the Downeys were entitled to
relief pursuant to G. L. c. 93A, they are entitled to appellate
attorney's fees, which they have requested in their brief.
Accordingly, within ten days of the rescript the Downeys shall
submit their request for appellate fees; Chutehall shall have
ten days thereafter to respond.
