First Quality Carpets, Inc. v. Kirschbaum
54 A.3d 465
Vt.2012Background
- In July–August 2007, Kirschbaums bought and contracted First Quality Carpets to install carpet, paying $4,867 upfront under a three-payment plan and with a 120-day warranty and a promise of a free replacement if dissatisfied.
- Mohawk carpet delivery arrived August 2, 2007; a second roll was defective, Mohawk would replace by August 25, and Kirschbaums insisted on installing the defective carpet to meet a September 8 bar mitzvah.
- First Quality agreed to install the defective carpet temporarily at an added cost of $1,700, with a condition to replace it once the replacement carpet arrived; installation occurred August 13–14, with unresolved seam issues.
- Kirschbaums disputed charges with American Express after alleging non-delivery, and AmEx reversed charges in December 2007 after the parties pursued a dispute; Green Mountain Flooring inspected Mohawk carpet and noted manufacturing defects and installation issues.
- In August 2008 First Quality filed suit for full payment, interest, and attorney’s fees under the Prompt Pay Act; Kirschbaums counterclaimed for CFA, breach of contract and warranties, and sought their attorney’s fees under CFA; the trial court awarded First Quality the disputed payments plus interest and § 4007(c) attorney’s fees, and denied the CFA claim.
- The Kirschbaums appealed, challenging the § 4007(c) fee award, arguing sunset repeal voided such fees, and contesting the CFA denial; the appellate court affirmed in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Survival of § 4007(c) after repeal | First Quality: § 4007(c) remained in effect after repeal and was properly applied. | Kirschbaums: sunset repeal expired the provision; no fee recovery. | § 4007(c) remained in effect; fee award affirmed. |
| Bad faith and directed verdict on withholding payment | First Quality contends Kirschbaums had no good faith basis to withhold payment, justifying fees. | Kirschbaums: good faith withholding warranted directed verdict against fee claim. | Court's finding of no good faith basis supported the fee award; directed verdict issue resolved in First Quality’s favor. |
| Consumer Fraud Act claim viability | First Quality contends CFA claim supported by misrepresentation in installation or disclosure. | Kirschbaums: CFA violation through post-sale installation disclosures and replacement failures. | No misrepresentation found; CFA claim denied. |
Key Cases Cited
- Burton v. Jeremiah Beach Parker Restoration & Constr. Mgmt. Corp., 2010 VT 55 (2010 VT) (discusses § 4007(c) survival and legislative intent)
- In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A (2010 VT) (statutory construction de novo; effect of intent)
- In re Route 103 Quarry, 2007 VT 66 (2007 VT) (statutory construction and legislative intent)
- Mass. Mun. Wholesale Elec. Co. v. State, 161 Vt. 346 (1994 VT) (statutory construction; effectuating legislative intent)
- Jordan v. Nissan N. Am., Inc., 2004 VT 27 (2004 VT) (material misrepresentation and CFA timing)
- Greene v. Stevens Gas Serv., 2004 VT 67 (2004 VT) (CFA elements; materiality of misrepresentation)
- Waterbury Feed Co., LLC v. O’Neil, 2006 VT 126 (2006 VT) (standard of review for trial court findings)