KEVIN D. WAGNER & Another v. SRAMOWICZ DEVELOPMENT, LLC, & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-951

KEVIN D. WAGNER & another1

vs.

SRAMOWICZ DEVELOPMENT, LLC, & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a five-day jury trial in the Superior Court,

defendant Sramowicz Development, LLC, appeals from a judgment

entered in favor of the plaintiffs, Kevin D. Wagner and Bei

Wagner, arising from their purchase of property in Lexington.

The defendant argues that the plaintiffs did not prove breach of

contract, negligent misrepresentation, breach of express

warranty, breach of the implied warranty of habitability, or

damages. We affirm.

1 Bei Wagner.

2Paul Sramowicz; Michael P. Sramowicz; and Goldsmith, Prest
& Ringwall, Inc. Sramowicz Development, LLC, is the only
defendant that participated in this appeal.
Background. In 2014, the defendant bought the property.

On it was a Cape-style house built in 1952 that had sump pumps

in its basement and a pipe going down the driveway. In its

backyard was a retaining wall. The defendant tore down that

house and built a five-bedroom, 5,100 square foot house on the

property. Because the property had a high water table, the

defendant designed the new house so that its foundation was two

feet higher than that of the previous house, and installed a

foundation drain and a roof runoff system that directed

rainwater out to the yard. The defendant also removed the

retaining wall and regraded the backyard so that it sloped

toward the house.

Before they bought the property, the plaintiffs discussed

their concerns about a water stain in the basement with one of

the defendant's managers, Paul Sramowicz and Michael P.

Sramowicz.3 In the purchase and sale agreement, the defendant

expressly warranted that "the concrete foundation and floor will

be free from seepage and leaking of surface water for a period

of one year from the conveyance." On May 20, 2015, the

plaintiffs bought the property from the defendant.

3 Because the Sramowicz brothers have the same surname, we
refer to them by their first names.

2
On June 3, 2015, water was seeping into all four sides of

the basement. The plaintiffs met with Paul at the house that

day. He said that the water was rainwater, but once cleaned up

it would not reoccur.

On June 6, 2015, the basement was flooded with water more

than an inch deep. In an e-mail message, the plaintiffs

notified the defendant that they thought the flooding was caused

by defective landscaping that failed to direct water away from

the house. Paul replied that "the amount of rain within a 24

hour period was very unusual," and the area was "simply

overwhelmed" because the lawn was not established and the

sprinklers were set to operate several times a day. That

afternoon, Paul came to the house, set up a dehumidifier and

fans to remove water from the basement, and arranged for a water

damage clean-up service. After inspecting the exterior of the

house, Paul told the plaintiffs he had adjusted a stuck pop-up

valve which he believed caused the flooding. That evening, the

plaintiffs sent the defendant an e-mail message stating that the

"gravity-fed drainage system is obviously failing" and demanding

that the defendant "install a sump pump immediately."

On June 9, 2015, the plaintiffs informed the defendant that

the adjustment of the pop-up valve and installation of the

dehumidifier had not solved the flooding. The plaintiffs

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requested that the defendant replace the gravity-fed drainage

system with sump pumps linked to the foundation drain to avoid

flooding the yard with water. The defendant replied that doing

so would void the express warranty.

On June 17, 2015, the plaintiffs sent Paul an e-mail

message to "[p]lease pick up all of your equipment . . . left

behind in our basement." At some point after that, the

plaintiffs' attorney sent the defendant a cease-and-desist

letter.

The plaintiffs hired a company that installed two sump

pumps and two dry wells. The plaintiffs also hired a landscape

architect who regraded the property so that water would flow

away from the house. However, the sump pumps ran frequently,

resulting in the flooding of the plaintiffs' yard, a neighbor's

yard, and the street. In 2016, the plaintiffs sought permission

from the town to drain the water pumped from their basement into

the town's stormwater drainage system. The town denied

permission because the basement was lower than the groundwater

level.

Between 2019 and 2024, the plaintiffs' basement flooded

about five times. The plaintiffs hired a contractor who

proposed that they fill in the basement and build an addition to

contain utilities and storage, at an estimated cost of $768,000.

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The plaintiffs filed the complaint, asserting claims

including that the defendant breached the express warranty that

the foundation would be "free from seepage and leaking" for one

year after conveyance. At trial, the defendant argued that it

had proposed solutions to the water seepage but the plaintiffs

had "caused their own problem" by installing the sump pumps

below the level of the groundwater. The jury returned a special

verdict finding the defendant liable for breach of contract,

negligent misrepresentation, and breaches of the implied

warranty of habitability, express warranty, and implied

warranty, and awarded the plaintiffs $475,000 in damages.

Judgment entered for the plaintiffs, and the defendant appeals.

Discussion. 1. Excuse. The defendant argues that it was

excused from performance of the contract, including the express

warranty, because after it refused to install sump pumps the

plaintiffs voided the warranty by "devis[ing]" a solution

involving sump pumps and "banish[ing]" the defendant from the

property with the cease-and-desist letter.

The jury heard testimony about the solutions the defendant

proposed during June 2015 to alleviate the water in the

plaintiffs' basement. In closing, the defendant's counsel

argued that the defendant was not required "to go onto the

property to figure out what's going on if they are getting

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correspondence from [the plaintiffs'] lawyers saying stay away."

It was for the jury to resolve the conflicting testimony about

whether the defendant breached the contract. See G.M. Abodeely

Ins. Agency, Inc. v. Commerce Ins. Co., 41 Mass. App. Ct. 274,

279 (1996). Based on the judge's instructions, none of which

the defendant challenges on appeal, it was also for the jury to

determine whether the plaintiffs fulfilled their duty to

mitigate damages. See David v. Kelly, 100 Mass. App. Ct. 443,

452 (2021) (jury presumed to follow judge's instructions).

Though the defendant argues, as it did before the jury,

that the cease-and-desist letter excused it from performance of

the contract, it never introduced that letter as an exhibit at

trial. No copy of the letter is included in the appellate

record. In those circumstances, we do not second-guess the

jury's verdict finding the defendant liable for breach of the

contract and the express warranty.

2. Negligent misrepresentation. The defendant argues that

language in paragraph 50 of the contract precluded the

plaintiffs from recovery for negligent representation. Based on

the plain language of the contract, we disagree.

Paragraph 50 stated that "[e]xcept for the 'BUILDER'S

WARRANTY' attached hereto as EXHIBIT 'E', there are no

warranties, representations or guarantees not expressly

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contained herein, and . . . the premises are to be delivered to

the BUYER in an 'as-is' condition." The builder's warranty,

exhibit E, stated, "Notwithstanding anything to the contrary

contained in this Agreement, the Seller gives to the Buyers the

following limited warranty. . . . "WE warrant that the concrete

foundation and floor will be free from seepage and leaking of

surface water for a period of one year from the conveyance."

Thus, paragraph 50 made clear that the express warranty in

exhibit E controlled. Contrast Sound Techniques, Inc. v.

Hoffman, 50 Mass. App. Ct. 425, 434 (2000) (clause acknowledging

plaintiff had not relied on representations outside contract

precluded claim for negligent misrepresentation based on parol

evidence).

Applying the judge's instructions on negligent

misrepresentation, the jury could find, based on the evidence,

that the defendant made false statements to the plaintiffs about

water issues at the property on which the plaintiffs relied to

their detriment. See DeWolfe v. Hingham Ctr., Ltd., 464 Mass.

795, 799-800 (2013). See also Pietrazak v. McDermott, 341 Mass.

107, 109-110 (1960) (contractor's statement "there would be no

water in the cellar" actionable as false statement even without

intent to deceive). "A claim for negligent misrepresentation is

ordinarily one for a jury," Nota Constr. Co. v. Keyes, 45 Mass.

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App. Ct. 15, 20 (1998), and here the jury resolved that claim in

favor of the plaintiffs.

3. Implied warranty of habitability. The defendant

contends that the plaintiffs failed to prove breach of the

implied warranty of habitability because the house was never

uninhabitable.

As the judge instructed, to prove a breach of the implied

warranty of habitability, the plaintiffs were required to

establish that (1) they purchased a new house from the

defendant, "(2) the house contained a latent defect; (3) the

defect manifested itself only after its purchase; (4) the defect

was caused by the builder's improper design, material, or

workmanship; and (5) the defect created a substantial question

of safety or made the house unfit for human habitation."

Sullivan v. Five Acres Realty Trust, 487 Mass. 64, 71 (2021).

See Albrecht v. Clifford, 436 Mass. 706, 712-713 (2002). From

the evidence that the basement flooding could cause mold and

that the plaintiffs were concerned for their children's health,

the jury could conclude that the defect created a substantial

question of safety. The plaintiffs did not have to establish

that the entire house was uninhabitable.

4. Damages. Finally, the defendant argues that the amount

of damages awarded by the jury was not based on competent

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evidence of the cost of remediating the seepage. The argument

is unavailing.

We apply a "highly deferential" standard in assessing the

evidence supporting a jury's award of damages "and will overturn

such an award only if it is 'clearly excessive in relation to

what the plaintiff's evidence ha[d] demonstrated damages to

be.'" Trites v. Cricones, 105 Mass. App. Ct. 246, 256 (2025),

quoting Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10 (2020). "The

basic principle of contract damages is that the aggrieved party

should be put in as good a position as if the other party had

fully performed." Laurin v. DeCarolis Constr. Co., 372 Mass.

688, 691 (1977). Contract damages are determined by calculating

the damage to the plaintiff from the defendant's breach. See

477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 523

(2019).

If the defendant had fully performed the contract, the

plaintiffs would have obtained a house with a foundation "free

from seepage and leaking" for one year after conveyance. The

jury heard abundant evidence of the measures the plaintiffs took

to remedy the seepage and leaking. The plaintiffs' contractor

estimated that it would cost $768,000 to fill in the basement

and build an addition; the jury awarded the plaintiffs $400,000

for property damage and $75,000 for expenses. Where, as here,

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the evidence at trial proved a sufficient basis to support the

claim for damages, we defer to the jury's assessment. See

Spinosa, 98 Mass. App. Ct. at 10-12.

Judgment affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.4),

Clerk

Entered: January 22, 2026.

4 The panelists are listed in order of seniority.

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