Background
In September 2020, homeowners Commissiong and Anderson contracted with self-represented defendant Raymond Currytto to perform home improvement work for $37,500, including renovating upstairs bathrooms, kitchen remodeling, flooring, and electrical and plumbing work. The original October 31, 2020 completion date was extended to January 20, 2021 due to delays by both parties, including the plaintiffs’ delays in providing materials and the defendant’s permitting delays. The plaintiffs terminated the defendant’s services on January 19, 2021, having paid him $28,125.
The plaintiffs filed suit in August 2021 alleging breach of contract and other claims. At trial in late 2023 and early 2024, the plaintiffs presented expert testimony from a general contractor hired to complete the work after the defendant’s termination. The expert testified about serious deficiencies in the upstairs bathroom work: improperly installed tile, loose substrate, inadequate waterproofing, incorrect sequencing of floor and wall tiles that would trap water, already-cracking grout joints, and improperly secured plumbing fixtures.
The Court’s Holding
The trial court found the defendant breached the contract by failing to perform the upstairs bathroom work in a workmanlike manner, awarding damages of $25,200. On appeal, the defendant argued the plaintiffs materially breached by terminating without providing notice and an opportunity to cure. The appellate court affirmed, holding that notice and opportunity to cure are not required when the breach is incurable or when providing an opportunity to cure would be futile. The trial court found that the serious deficiencies in the bathrooms—including structural issues, waterproofing failures, and improper installations—could not be corrected with additional time, making any opportunity to cure futile.
The court also rejected the defendant’s challenge to the admissibility of the expert’s testimony. Although the expert acknowledged he was not a plumbing expert, the trial court properly qualified him as an expert in home improvement contracting. The defendant failed to identify any specific portion of the expert’s testimony that required specialized plumbing expertise or that exceeded the scope of home improvement contracting knowledge. The appellate court emphasized that the burden was on the defendant to object to specific portions of testimony on qualification grounds, which he did not do.
Key Takeaways
- The doctrine requiring notice and opportunity to cure does not apply when a breach is so serious and the deficiencies so fundamental that additional time would not remedy them.
- An expert witness may testify in a field (here, home improvement contracting) even if they lack specialized credentials in a related sub-field (plumbing), provided the testimony does not exceed the scope of their expertise.
- An appellant challenging expert testimony must identify specific portions of testimony requiring qualifications the expert lacks; general objections based on the expert’s admission of limitations in one area are insufficient.
- A trial judge has broad discretion in determining expert qualifications and in weighing expert testimony credibility, subject only to abuse of discretion review.
Why It Matters
This decision provides important guidance on when homeowners and contractors may terminate home improvement contracts without providing curative opportunity. By holding that futility excuses the notice-and-cure requirement, the court recognizes that when defective work involves fundamental structural or functional problems—such as the waterproofing and installation failures documented here—allowing the breaching contractor additional time would be impractical and wasteful. This protects property owners from being forced to allow continued remedial work when the underlying defects are so severe that only complete re-work is feasible.
The decision also clarifies expert witness standards in construction litigation, confirming that general contractors with broad experience in home improvement may testify about the quality and workmanship of construction work even if they lack specialized credentials in discrete trades like plumbing or electrical work, so long as their testimony remains within their qualified expertise.