Attorney’s fees awarded against home repair contractor for failing to include start and completion dates in contract – A home repair contractor’s contract with homeowners for the renovation of a Victorian home failed to set forth the work start and completion dates. The job that began in late summer could not be finished before winter set in, and a small portion of the work had to be carried over to the following year. The court found that failure to set forth starting and completion dates was a violation of the consumer fraud regulations. Even though the court found that the homeowners suffered no damages as a result of the information missing in the contract, the court allowed the homeowners to recover an award of reasonable attorneys' fees, filing fees, and reasonable costs of suit.
Installer of kitchen cabinets in new home can be held responsible for consumer fraud – Consumers hired a general contractor to construct a new home and contracted with a second contractor (the contractor) who was not acting as a subcontractor of the general contractor, to install custom kitchen cabinets, interior doors, a front door, and certain moldings at the home. After a dispute arose between the consumers and the contractor regarding payment and timing of work, each filed complaints against the other. The court concluded that the contractor was indeed a “seller” of a “home improvement” as defined in home improvement regulations and thus, subject to the regulations and to the Consumer Fraud Act.
Home repair contractor suing homeowners faces countersuit and court finds contractor committed consumer fraud – A home repair contractor sued homeowners for the balance due on a home repair contract and they counterclaimed alleging a consumer fraud claim. The contractor’s complaint for money due for the home repairs was dismissed and the court found that the contractor committed consumer fraud and awarded the homeowners $22,146.14 in treble damages, attorney's fees.
Landscape irrigation contractor commits consumer fraud – A landscape irrigation contractor brought a lawsuit against its customer, seeking the balance due on sprinkler installation contract and the customer counterclaimed, alleging violations of the Consumer Fraud Act. The Court ruled that the contractor violated the Consumer Fraud Act, was not entitled to enforce the contract and had to pay the customer a refund and attorney’s fees. On September 15, 2004, Michael Finnegan, the owner of the company, prepared and presented for signature a document entitled “Irrigation Contract Proposal.” The proposal was signed on or about September 29, 2004, by both Finnegan, owner of the home repair contractor company and the customer. The contract was entered for the purpose of the installation of a sprinkler irrigation system in the customer's back yard. The installation took one day. The contract price was $3,500. While the contract provided for a deposit of $1,500, the customer only paid a $500 deposit. The contract price was reduced by $150. The contractor claimed it was because the customer insisted on performing the system connection to the house and the customer says the reduction had nothing to do with the connection, but was simply a negotiated reduction of price. The contractor sought $2,850 from the customer. The contract was silent as to whether the contractor or any of its employees were licensed. The customer was not aware of the requirement for a license or certificate until after the system was installed. The customer did not pay the contractor after the system was installed because he believed that the contractor did not fulfill the terms of the contract. The contractor installed five sprinkler zones but the customer interpreted the contract as requiring the installation of nine zones. Item 1 under the contract stated: “Automatic Controller, Nine Zone LXI plus (Rainbird).” As it turned out, the contractor installed an eight-zone Rainbird controller. The controller became an issue in the case. The customer specifically wanted a nine-zone LXI Rainbird brand controller. Rainbird only makes an eight-zone or twelve-zone controller. The distinction between the capacity of the controller and the number of zones actually to be installed was not made clear in the contract and was not understood by the customer. On this point, the credibility of Finnegan was severely tested. Finnegan did not testify in his case-in-chief. In fact, he was not present in the courtroom to hear his office manager testify. His office manager testified on the first day of the trial that upon learning a nine-zone Rainbird was not even available she ordered the eight-zone controller on her own because it was closest to nine zones. She did it without consulting the customer. She was believable. Finnegan, on the other hand, was somewhat evasive in his testimony. He testified only on rebuttal. To the direct question by the court as to who ordered the controller, he said that he did. Finnegan said that he explained to the customer that the controller had to be eight zones and not nine. His testimony on this point was not credible, clearly contradicting his office manager. He also tried to give the impression that he was at the customer's home during most of the installation, but his installer's testimony hardly mentioned his presence. Clearly, Finnegan's testimony lacked credibility. His explanation that the contract called for five zones to be installed was based on Item 2 on the form contract, which stated: “Electric Valves with Boxes 4-7.” Finnegan explained that this meant four to seven zones would be installed because each valve is a zone. While it may be true that each zone has electric valves, this explanation is not included in the contract. The contract is not clear. Next, the customer believed that the system was to provide water to his entire property, including the area on both sides of his driveway. Finnegan said that was not provided for under the contract. The contract, however, is silent as to the scope of area to which the system would provide water. Thirdly, there was the issue as to who would tie in the system to the house. The contract provides that the home repair contractor would have that responsibility and would install a new “one-inch ball valve and drain spigot.” It was the customer who actually had another contractor make the final connection. The evidence shows that the contractor’s installer tried to make the connection on the far side of the water conditioner, but because of low water pressure the customer had to have a second contractor make the connection on the well side of the water conditioner. The home repair contractor states that the customer insisted on the tie-in be on the far side of the water conditioner so that the water would not stain his concrete. Customer denied that. The court found that the home repair contract called for a nine-zone Rainbird controller, which the defendant wanted and specified. The home repair contractor had the obligation not to specify a product that does not exist. He should have informed the homeowner in advance of signing the contract that such a product as the homeowner wanted was not available. In the event that the contractor realized that only an eight-zone or twelve-zone controller of that brand was available, a written change order to the contract should have been prepared. The court noted that the contract was prepared by the contractor on September 15th and installation did not take place until September 29th, leaving adequate time to renegotiate the contract and provide a written change order with the appropriate controller, instead of the nine-zone controller specified in the original contract. The evidence showed that there were two significant changes in the contract. The first is, as discussed above, that the controller was changed from a nine-zone to an eight-zone controller. And secondly, there was a change that was testified to by the plaintiff that the connection of the system to the house would no longer be done by the plaintiff as called for in the contract. Neither of these two changes was made in writing and thus this constitutes a violation of the regulations. If there had been written changes, the dispute among these parties may never have occurred. In addition, while the contract has a starting date, it does not provide for an ending date or a time for performance. The contractor, Finnegan, testified that was because the system was installed on the same day as the homeowner signed the agreement. The regulations do not provide for such flexibility or discretion for the contractor. As the contract is written, a contractor could have started the job in the morning and left the site not to return until some indefinite period in the future. It is this circumstance, undoubtedly, that the regulations seek to avoid. In summary, the court found that the contractor violated regulations and thereby violated the Consumer Fraud Act. The court also found that the contractor was a landscape irrigation contractor and no persons employed by the company held the required certificate. The contractor conceded these facts as well. The customer argued that the contractor, acting contrary to the law undertook an unconscionable and unlawful act by entering into the subject contract contrary to the terms of the Consumer Fraud Act and, therefore, that the customer was entitled to a refund. The court reasoned that to now permit the contractor to enforce the contract in the face of the unlawful regulatory violations and its failure to operate with the mandated license and recover the unpaid sums otherwise due would strip the Consumer Fraud Act of the gravitas intended by the Legislature as a remedial statute. Accordingly, the court dismissed the contractor’s complaint.
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