N. Hero Marina v. Melanson ( 2004 )


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  • North Hero Marina v. Melanson, No. 607-02 CnC (Katz, J., July 30, 2004)
    [The text of this Vermont trial court opinion is unofficial. It has been
    reformatted from the original. The accuracy of the text and the
    accompanying data included in the Vermont trial court opinion database is
    not guaranteed.]
    STATE OF VERMONT                                     SUPERIOR COURT
    Chittenden County, ss.:                           Docket No. 607-02 CnCv
    NORTH HERO MARINA
    v.
    JAMES MELANSON
    FINDINGS OF FACT
    CONCLUSIONS OF LAW
    AND NOTICE OF DECISION
    This matter was tried to the court January 13, 2004. On the basis
    of the evidence presented, the following decision is announced.
    FINDINGS OF FACT
    1.      Plaintiff is a business operating a marina on Pelot’s Point, North
    Hero. The business is a corporation, with all stock held by Brett Kernoff
    and his wife. The two of them also own the real estate, outside the
    corporation.
    2.       Plaintiff contracted with defendant Melanson for electrical work
    on a store on the site, as well as to lay underground cable to provide
    power on a dock. In the process of forming that contract, Melanson
    misrepresented himself as a licensed, master electrician. He is not. He is
    experienced as an electrician, and was at one time licensed in Maine, but
    not at that level, and never in this state.
    3.       Although there may have been some confusion regarding the
    “person” for whom the work was done, defendant did bill the job to North
    Hero Marina, and North Hero Marina, Inc. issued the checks which paid
    for it. There was never any communication, or even any uncommunicated
    thought, suggesting that the work was being done for any party but the
    marina business.
    4.       As the work was to be done on a commercial location, requiring a
    licensed master electrician to be in charge, the permit was obtained under
    the name of Dwayne Cormier, who is such a person. Melanson planned to
    do the job with Cormier, in which case it could have been done in only
    two days, as originally envisioned. Unfortunately, Cormier became ill,
    was hospitalized, and was not available to work on the job. Melanson did
    virtually the entire job, alone and unsupervised.
    5.     Plaintiff paid Melanson $4,000. Defendant maintains $355
    remains unpaid.
    6.       After the job was virtually completed, plaintiff’s officer, Kernoff,
    became aware that Melanson was not licensed. He had already thrown
    Melanson off the site, ordering him not to return, because Melanson tried
    to collect his bill in front of marina customers.
    7.      Cormier actually completed a very small amount of the work,
    such as hanging light fixtures from boxes installed and wired by
    Melanson.
    8.       Melanson may never have arranged for a rough-in inspection of
    his work, before walls were enclosed, thereby hiding the new wiring.
    There is no proof, however, either that the marina has been harmed by the
    lack of such an inspection or that any of the interior wiring is improper.
    Department records suggest there was such a rough-in inspection.
    9.       The most serious problem raised by the evidence was of an
    underground cable running from a box on the shed, to a panel closer to the
    lakeshore. William Bissell, whom the court found to be a creditable
    witness, testified that the source box had a 100 amp breaker, serving a line
    rated for only 90 amps. Hence, the line is insufficiently protected,
    although not by a large margin. What troubled Bissell more is that the
    other end of the line revealed only a 65 amp line coming up out of the
    snow. When he learned in court that this buried line was installed within
    conduit, he felt it must be an improper installation. Bissell infers this
    because, although underground splices are permitted, splices within
    conduit are not, for pulling the line through the conduit would place undue
    stress on the splice. He therefore infers that Melanson improperly spliced
    an insufficient line served by too large a breaker.
    Although we find Bissell a reliable witness, he only went to the site
    this morning, and saw what he could with snow on the ground. This is
    also a line running past a subsequent installation of fuel tanks with electric
    pumps. In the seven years since the line was originally installed, what
    was done to the line or the breaker serving it? We can’t know.
    Particularly when the “popping” of breakers has been a problem for the
    marina. Whatever Melanson’s faults, he had little reason to splice
    insufficient cable to complete this job, which was always one paid on the
    basis of time and materials. If he had to buy heavier line, he probably
    would have slightly increased his margin. He has no incentive to splice
    improper line and thereby save the customer money.
    We do not know why there is a 65 amp line emerging from the
    snow, but we are unable to find, by a preponderance of the evidence that it
    is because Melanson put it there.
    10.      This line to the lakeshore ultimately services eight slips on the
    west dock at the marina. Eight slips should be served by 216 amp
    capacity, under the National Electrical Code. At present, this is served by
    100 amp breakers with possibly a portion of 65 amp cable, as indicated
    above. We have previously indicated why we are unable to find that the
    insufficient cable is the fault of Melanson.
    This was a job without any written specifications. Melanson
    testified that the line to the dock was only to serve the owner’s boat. The
    marina manager, Kernoff, denied any such limitation. But without any
    written specs for the job we are unable to find that the original installation
    was specified, even if orally, for the eight slips which now have power
    outlets running off the line.
    11.       Kernoff was satisfied with Melanson’s work. He threw Melanson
    off the site only because of the latter’s efforts to collect the balance of the
    bill in front of customers. On August 26, 1997 Kernoff wrote Melanson
    that he considered the bill fully paid, at $4,000; that he “enjoyed working
    with [Melanson;] and [that he] would have preferred an ongoing
    relationship.” On September 20, it having come to Kernoff’s attention
    that Melanson had not been licensed, he threatened a treble damage
    lawsuit if the entire price of the job were not returned. Having had both
    an incentive to argue over whether the last eight per cent of the bill was
    actually owing, and whether he should get the price back because of
    licensing, Kernoff could still find nothing wrong with the work. While we
    recognize that he is not an electrician, we conclude that this dispute had its
    origin in legalistic considerations, rather than workmanship.
    CONCLUSIONS OF LAW
    12.      Plaintiff marina asserts violations of the Vermont Consumer
    Fraud Act, 9 V.S.A. § 2453 et seq., against Melanson. The Consumer
    Fraud Act authorizes two types of civil actions. 9 V.S.A. §§ 2460, 2461.
    The first is initiated and run by the Attorney General or a State’s Attorney,
    and the second is a private right of action limited to consumers as defined
    in 9 V.S.A. § 2451a(a). Plaintiff marina seeks damages against Melanson
    under this second type of action. Originally, a corporation was not
    permitted to bring such a claim since it fell outside the definition of
    “consumer.” Int’l Collection Serv., 156 Vt.540, 542–45 (1991). That
    definition, however, was amended in 1997 by Act No. 42 of the Vermont
    General Assembly. 1997 Vt. Acts & Resolves No. 42, § 1. The purpose
    of the amendment was to overrule Int’l Collection Serv. and “create a
    private cause of action for businesses under Vermont’s consumer fraud
    statute . . .” H. 226, 1997 Gen. Assem., Reg. Sess. (statement of purpose).
    As such, North Hero may bring a private action under 9 V.S.A. § 2461(b).
    13.     We conclude that Melanson engaged in a deceptive and unfair act
    in misrepresenting himself to the customer.
    14.      We also conclude that plaintiff has failed to prove any harm or
    cognizable injury resulting from improper workmanship on the part of
    Melanson; since the Consumer Fraud Act does apply, we are faced with
    the question of what, if any, damages to award. Compare Greene v.
    Stevens Gas Co., 
    2004 VT 67
    , ¶ 13 (“Although we read broadly the
    requirement that there be injury, there must be some cognizable injury
    caused by the alleged consumer fraud.”) (citation omitted); with Peabody
    v. P.J.’s Auto Village, Inc., 
    153 Vt. 55
    , 57 (1990) (actual damages are not
    necessary for a plaintiff to prevail in a consumer fraud action).
    15.      North Hero is eligible for any appropriate equitable relief such as
    the amount of damages suffered or the consideration. 9 V.S.A. § 2461(b).
    As we previously concluded, North Hero did not suffer any damages as a
    result of Melanson’s misrepresentations. Melanson’s violations, while
    more than mere technical violations of the Consumer Fraud Act, do not
    require the disgorging of consideration. Cf. D.J. Painting v.
    BarawEnters., 
    172 Vt. 239
    , 242, 246 (2001) (no equitable relief where
    contract dispute did not lead to either unjust enrichment or quantum
    meruit). Melanson provided a valuable service to North Hero, for which
    he was compensated. There has been no causal link between the damages
    claimed by North Hero and the work done. Therefore, we decline to
    extend any type of equitable relief to North Hero.
    16.      Since North Hero has not proven injury, there is no violation of
    the Consumer Fraud Act. Greene, 
    2004 VT 67
    , ¶ 13. By extension, North
    Hero is not entitled to attorneys’ fees. However, even if Melanson’s
    deceptive act were to somehow trigger the reasonable attorneys’ fees
    portion of the Consumer Fraud Act, see Gramatan Home Investors Corp.
    v. Starling, 
    143 Vt. 527
    , 535–36 (1983), the defendant’s complete lack of
    damages coupled with the nature of Melanson’s consumer fraud would
    require that we interpret “reasonable” in this case to be very low. See
    Samuel-Bassett v. KIA Motors America, Inc., 
    357 F.3d 392
     (3d Cir. 2004)
    (“The term reasonable does impart a sense of proportionality between an
    amount of damages and an award of attorneys’ fees”) (citation omitted);
    Branigan v. Level on the Level, Inc., 
    740 A.2d 643
    , 646–47 (N.J. Super.
    Ct. App. Div. 1999) (granting only limited attorney’s fees for a mere
    technical violation of consumer fraud laws); Tibbetts v. Sight ‘n’ Sound
    Appliance Centers, Inc., 
    77 P.3d 1042
    , 1051–54 (Okla. 2003) (“For a
    private action to succeed the plaintiff must prove damages. Nowhere in
    [the Consumer Fraud Statute] is it indicated that attorneys are entitled to
    be compensated for merely showing some violation of the OCPA that
    caused no damages to their clients.”); see also Pitchford v. Oakwood
    Mobile Homes, Inc., 
    212 F. Supp. 2d 613
    , 620–21 (W.D. Va. 2002)
    (damage award essential to meaning of “prevail” for attorneys’ fees).
    This position is supported by the statute, which does not create a “private
    attorney general,” but rather vest in the real Attorney General the power to
    pursue nominal offenders. Tibbetts, 77 P.3d at 1051 (citing Alyeska
    Pipeline Service Co. v. Wilderness Society, 
    421 U.S. 240
     (1975)
    (rejecting private attorney generals as a disfavored encroachment on the
    American Rule)). Due to the mandatory nature of attorneys’ fees under
    the Consumer Fraud Act, we would be compelled to award plaintiff
    attorneys’ fees. Winton v. Johnson & Dix Fuel Corp., 
    147 Vt. 236
     (1986).
    But we believe that reasonable attorneys’ fees should dovetail with its
    damages; such fees are appropriately awarded to prove the deception, but
    not in situations where there are no actual damages..
    17.      Exemplary damages require an additional finding of malicious
    conduct warranting their imposition. Bruntaeger v. Zeller, 
    147 Vt. 247
    ,
    253–54 (1986). Despite Melanson’s misrepresentation, we find no malice
    or wanton disregard in his actions. His lie, while a violation of the rules
    governing electrical work, 26 V.S.A. § 881 et. seq., did not damage North
    Hero. Nor does the evidence suggest that Melanson intended to provide
    inferior or defective workmanship or anything less than what North Hero
    wanted. We find it persuasive that Melanson did attempt to work under
    the supervision of a master electrician in conformity with the rules. With
    a lack of malice, no exemplary damages can be awarded. Bruntaeger, 147
    Vt. at 253–54.
    Based on the foregoing, judgment is for the defendant. Motion to
    re-open denied as moot.
    Dated at Burlington, Vermont, _________________, 2004.
    __________________________
    Judge