Contract – Improvements to property – Oral agreement

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Where the plaintiffs enlisted the services of the defendants to make improvements to their property, the fact that the parties did not have a written agreement did not prevent the plaintiffs from suing defendants for negligence, breach of contract and breach of implied warranty.

“… The Callahans reside in New York City and own a residential dwelling on Nantucket, Massachusetts (‘the Property’). … In September 2015, the Callahans entered into an agreement with the Defendants for the Defendants to make certain home improvements to the Property. … [A] written agreement was never signed by either the Callahans or the Defendants. In October 2015, the parties expanded the scope of improvements to be performed and drafted a Scope of Work document …

“… [T]he Callahans allege that it will cost over $200,000 to complete the improvements and correct the improperly completed work by the Defendants.

“… The agreement alleged in the complaint [is] sufficiently definite because the agreement alleged lays out the scope of work, prices and timeline agreed to by the parties. Moreover, the complaint also plausibly alleges the alleged breaches of that contract. …

“… [E]ven if there was no express warranty, the complaint does allege the existence of an implied warranty of workmanship by alleging to existence of a construction contract. …

“… The complaint … pleads a factual basis for all of the elements of a negligence claim. The complaint includes as an attachment a letter from the Callahans to the Defendants that lays out with specificity particular negligent acts of the Defendants in performing the improvements … [and] alleges that these negligent acts resulted in damages to the Callahans, namely, the expenses they will have to incur in repairing the damage.

“… Although … contracts to perform residential contracting services in excess of one thousand dollars be in writing, Mass. Gen. Laws c. 142A section 2(a), the statute also states that ‘[c]ontracts which fail to comply with [such] requirements . . . shall not be invalid solely because of noncompliance.’ Mass. Gen. L. c. 142A section2(a)(10). … [A]lso … the statute only requires that the building at issue be ‘owner occupied,’ Mass. Gen. Laws c. 142A section 1, not that the building be the owner’s primary residence. …

“… The complaint … alleges specific unfair practices, including charging for work not approved by the Callahans, engaging in double billing and charging for services not actually performed. … [B]ecause the Callahans’ breach of (implied) warranty claim survives, the Chapter 93A claim survives.”

Callahan, et al. v. Shepherd, et al. (Lawyers Weekly No. 02-502-18) (8 pages) (Casper, J.) (Civ. Act. No. 17-cv-10508) (Oct. 9, 2018).

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