Wednesday, August 10, 2011

Something to Build on



Trombley Plumbing & Heating v. Quinn, 2011 VT 70 (mem.)

Plumber is hired by Owners to install heating and hot water systems in Owner’s vacation home.  After final walk through, Plumber sends an invoice to Owners for the final $7,000.  Owners refuse to pay and cite several defects including poor workmanships, non-functioning systems, and incomplete work as the basis for withholding.  Over the following year, Owners experience several problems with the system and expend substantial additional money to correct problems.


Plumber begins this litigation seeking payment under the Vermont Prompt Payment Act, which gives builders, plumbers and other contractors the right to demand, as you guessed it, prompt payments for their work.  Owners countersue for defective workmanship, negligence, misrepresentation, and consumer fraud.  The basis of Owners’ claims boils down to a simple point that Plumber did shoddy, expensive work when he promised otherwise. 

At trial, the court finds that Plumber’s work was shoddy and that Owners were entitled to withhold the $7,000 payment, but since Owners had no expert witnesses testifying about the nature of the defects and damages, they are not entitled to separate damages on their claims.  Without a victory on either side, the trial court denies attorney’s fees (usually awarded to the substantially prevailing party in a Prompt Pay action). 

On appeal, Plumber argues that the trial court put the wrong burden on him by making him prove that his workmanship was not defective and that it improperly denied attorney’s fees to him.  Owners cross-appeal arguing that they should have been able to present evidence of their damages without an expert.  The SCOV denies all of these arguments and affirms the trial court.

To the first issue, the SCOV notes that the burden was properly placed.  Plumber was obligated to make out a basic case for prompt pay (show there was a contract, affirm that work was done, and then allege that payments were not made).  Owners then had the burden of showing why they did not pay.  In this case, Owners, primarily through their own testimony, showed that Plumber’s work was shoddy, substandard, and incomplete.  They were then entitled to the defense allowed under the Act to withhold based on work defects.  The burden then fell on Plumber to show that this was wrong.  This is called a shifting burden and is common in cases where one layer of facts prompts a defense or response from the other side.  No error here.  Move along please.

Plumber points out that the trial court’s findings are sparse and much of the SCOV’s reasoning is based on its assumption that this is what the trial court meant.  No matter, says the SCOV, trial court findings, even when terse, short, and arguably incomplete, are presumed to have considered all of the underlying issues and cannot be attacked for brevity or lack of detailed findings.

The SCOV makes even quicker work of the attorney’s fee claim.  The standard for attorney’s fees is within the broad discretion of the trial court, and in this case, it determined that the parties had pretty much fought to a standstill and no one was entitled to fees.  The SCOV sees no abuse of discretion in this decision and affirms.

Finally, the SCOV takes up Owners’ arguments that they should have been allowed to testify about the defective workmanship on behalf of their counterclaims.  The SCOV notes that this is an expert witness question.  Owners, while versed in a particular instance of poor plumbing work, are hardly trained or qualified as experts on the subject in general.  The trial court properly blocked this testimony, and no error attached to the decision.  The trial court is affirmed.

Notwithstanding the outcome, the record shows that thanks to a second plumber, things are finally heating up at the Owners’ house these days.

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