Real property – Sale – Habitability – G.L.c. 93A

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Where a jury found in favor of the plaintiff purchasers of a home on claims alleging breach of the implied warranty of habitability and violations of G.L.c. 93A, a motion by the defendants for judgment notwithstanding the verdict should have been allowed, as (1) the sale was private in nature and therefore not subject to Chapter 93A and (2) there was insufficient evidence that the defendants were builder-vendors.

“In 2013, the plaintiffs, Constance M. Sullivan and Edward T. Sullivan, Jr., purchased a piece of real property in Dover (Dover property) from defendants Giuseppe, Rosalie, and Maria Gagliardi,3 as trustees of the Five Acres Realty Trust. The plaintiffs thereafter discovered various defects in the Dover property and commenced this action in 2014 against Giuseppe, Rosalie, their daughter Maria, Five Acres Realty Trust, and J.F. Contracting Co., Inc. (J.F. Contracting), a masonry contracting business owned by Giuseppe. The plaintiffs alleged breach of the implied warranty of habitability, fraud and misrepresentation, defective and deficient renovation work, and violations of the Massachusetts consumer protection act, G.L.c. 93A. A judge in the Superior Court (motion judge) granted the defendants’ motion for summary judgment on the fraud and misrepresentation and the defective and deficient renovation work claims. After trial, the jury found in favor of the plaintiffs on the warranty of habitability and the G.L.c. 93A claims, awarding the plaintiffs $250,000 on the warranty of habitability claim and $211,153.38 on the c. 93A claim.

“The defendants appeal from the trial judge’s denial of their motions for directed verdict or judgment notwithstanding the verdict, and for a new trial or to alter or amend the damages. The plaintiffs appeal from the motion judge’s grant of summary judgment in favor of the defendants on the fraud and misrepresentation claim and the from the trial judgeꞌs denial of an award of jury consultant fees under G.L.c. 93A. We conclude that the motion for directed verdict or the motion for judgment notwithstanding the verdict should have been allowed on the G.L.c. 93A and the warranty of habitability claims, the motion judge properly granted summary judgment in favor of the defendants on the fraud and misrepresentation claim, and jury consultant fees are not recoverable under G.L.c. 93A. Because we vacate the awards of damages on the G.L.c. 93A and warranty of habitability claims, we need not reach the arguments related to those awards. …

“The defendants argue that the evidence was insufficient to establish that the sale of the property took place in the course of trade or commerce. We agree. …

“Because the sale was private in nature, and therefore not subject to G.L.c. 93A, the defendants were entitled to a directed verdict or judgment notwithstanding the verdict. …

“The defendants argue that the trial judge should have allowed their motion for a directed verdict or judgment notwithstanding the verdict on the implied warranty of habitability claim because the Dover property was not a new home and they are not builder-vendors. We agree that there was insufficient evidence that the defendants were builder-vendors and therefore conclude that the defendants’ motion for a directed verdict or judgment notwithstanding the verdict should have been allowed. …

“In the present case, it is undisputed that the defendants were not involved in the original construction of the house. In support of their position that Rosalie and Giuseppe are builder-vendors, the plaintiffs point to evidence showing that Giuseppe completed some of the renovation work himself. Giuseppe also hired contractors to complete other portions, such as the installation of the kitchen cabinets, installation of a new gas line, and demolition of walls. However, the mere completion of renovations to one’s private residence does not make him or her a builder-vendor. Moreover, the sale of the Dover property was personal in nature. Rosalie and Giuseppe lived in the Dover property for years before beginning renovations and then lived in the property for at least a year before listing it for sale. The present circumstances stand in stark contrast to a developer building a new home for the express purpose of selling it. … For the foregoing reasons, we conclude that the evidence was insufficient to show that the defendants were builder-vendors, and the defendants therefore were entitled to directed verdicts and judgments in their favor on the implied warranty of habitability claim. …

“For the foregoing reasons, we conclude that the defendants’ motions for a directed verdict or judgment notwithstanding the verdict should have been allowed on the G.L.c. 93A and warranty of habitability claims. The award of damages to the plaintiffs on the c. 93A claim, including the award of attorney’s fees and costs, and on the warranty of habitability claim are vacated, and judgment shall enter for the defendants on those claims. The judgments are otherwise affirmed.”

Sullivan, et al. v. Five Acres Realty Trust, et al. (Lawyers Weekly No. 10-031-21) (23 pages) (Cypher, J.) A motion for summary judgment was heard by William F. Sullivan, J.; the case was tried before Mark A. Hallal, J., and posttrial motions were heard by him. Joel Lewin for the defendants; Peter B. McGlynn for the plaintiffs; Deborah Schrieber, for American Society of Trial Consultants, Inc., amicus curiae, submitted a brief (Docket No. SJC-12934) (March 12, 2021).

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