Howard v. Usiak

Howard v. Usiak (99-082); 172 Vt. 227; 775 A.2d 909

[Filed 11-May-2001]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 99-082


Paul E. Howard, DVM, MS           	         Supreme Court

                                                 On Appeal from
     v.	                                         Chittenden Superior Court


Wayne Usiak d/b/a Wayne Usiak & Associates	 May Term, 2000


Matthew I. Katz, J.

John J. Collins and Michael J. Harris of Sutherland, Collins, McMahon & Harris, 
  Inc., Burlington, for Plaintiff-Appellant.

Thomas F. Heilmann of Heilmann, Ekman & Associates, Burlington, for 
  Defendant-Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse and Skoglund, JJ., and Gibson, J. (Ret.), 
          Specially Assigned 


       DOOLEY, J.   Client Dr. Paul Howard appeals from a judgment in favor
  of architect Wayne  Usiak d/b/a Wayne Usiak & Associates in this
  architectural malpractice case.  On appeal, client  argues that the trial
  court erred in concluding that he did not prove negligence, nor negligent 
  misrepresentation, and that he is not entitled to restitution of design
  fees or other damages based on  violation of the architectural licensing
  statute.  We affirm.

       There is little dispute about the basic facts.  Client is a veterinary
  surgeon who had plans to  create an animal emergency clinic in Vermont to
  provide emergency care to pets after regular  business hours and to offer
  services of visiting specialists, such as veterinary ophthalmologists.  

 

  Architect is a specialized veterinary architect, who operates a licensed
  practice in New Mexico and  has experience in designing clinics that
  conform to federal standards.  In 1993, client attended a  conference in
  Missouri at which veterinary architects, including architect, were
  promoting their  specialized clinic structures.  Client arranged a meeting
  with architect.  

       In December 1993, architect visited Vermont to meet with client and
  discuss rough ideas for  the clinic.  During architect's trip, he produced
  preliminary sketches of what he and client discussed.   The parties decided
  to contract for architectural services.  Before entering into a written
  agreement in  later January, architect obtained a Vermont license to
  practice architecture through a reciprocal state  licensing procedure. 

       A full contract with architect has three phases, described as: Phase
  I, Programming and  Preliminary Design; Phase II, Construction Documents;
  and Phase III, Construction Administration.   The parties contracted only
  for Phase I services.  Architect described Phase I, in part, as follows:

    This portion . . . will provide you with a set of drawings
    sufficient to  approach lending institutions, governmental
    agencies, review  committees and the like.  These will be detailed
    enough to develop  accurate budgets, approach potential
    contractors, gain preliminary  agency approvals . . . .  On the
    other hand, they will also be flexible  enough to make any changes
    necessary for budgetary, building code  or personal changes of
    mind you may have after reviewing a hard  copy.

  Architect charged ten percent of construction costs as a fee for all three
  phases.  Of this, 35% was  attributed to Phase I.  The contract specified
  that construction costs were estimated at $280,000 so  that architect's fee
  would be $28,000 for all phases, and, specifically, $9,800 for Phase I.

       Client and architect then worked together to design a structure that
  would be within client's  budget.  They envisioned a clinic with
  approximately 2,900 square feet that would be primarily 

 

  housed on the first floor with a second floor containing a small sleeping
  quarters, a meeting room,  and office space for client.  The second floor
  would be used by clinic workers only and would be  accessed by stairs. 
  Architect drafted plans based on these specifications. 
 
       Soon after client initiated the process to obtain the necessary
  permits for the building, the  issue arose as to whether the structure
  required an elevator under state regulations.  Architect  expressed his
  belief to client that federal law exempts buildings under 3,000 square feet
  from  elevator requirements for handicap accessibility.  The court found
  that the general rule is that public  buildings are required to be
  accessible to persons with physical disabilities, which includes having 
  elevators for multistory buildings, but both parties believed that client
  could circumvent any elevator  requirement due to the limited purpose of
  the clinic's second floor.  An experienced local builder  affirmed
  architect's belief by telling client that he would not need to include an
  elevator in the  structure.  Client then continued the permitting process
  with limited professional assistance from a  permitting consultant.

       The permitting process made evident that the structure, as designed
  for the contemplated uses  of the second floor, would need an elevator.
  Vermont regulations on accessibility for persons with  physical
  disabilities are more stringent than federal regulations.  Architect
  proposed three alternatives  to installing an elevator; however, all three
  solutions increased the costs of the building in excess of  client's
  budget.  In 1995, client applied to the Vermont Architectural Barrier
  Compliance Board for  an exemption from the elevator requirement, and the
  Board granted an exemption upon the condition  that the second story be
  used only for an office and two storage rooms.  Throughout this process, 
  architect remained willing to revise the design of the building so that it
  satisfied client's needs and  complied with state and federal laws. 
  Client, however, fired architect without affording him the 

 

  opportunity to redraft the clinic design.  By the time that client fired
  architect, architect had  submitted bills for all Phase I services,
  indicating that he had performed all services due under this  preliminary
  phase. 

       Client then filed suit against architect alleging that he was entitled
  to recover money paid to  architect for his services and lost future
  profits from the delays occurring as a result of the elevator  issue. 
  Client's complaint stated four causes of action: violation of the Vermont
  architectural  licensing statute, negligence, negligent misrepresentation,
  and  misrepresentation.  Client appeals  from the court's dismissal of all
  claims, except he has not appealed the dismissal of the  misrepresentation
  claim.  His three claims on appeal are that the trial court erred in not
  finding as a  matter of law that: (1) architect negligently misrepresented
  his qualifications and intentions; (2)  client was entitled to a return of
  the fee paid architect because architect commenced services before 
  obtaining a Vermont license; and (3) architect committed malpractice in not
  finding and notifying  client of the elevator requirement, and in designing
  a building that did not comply with an applicable  code.

       Client argues first that the trial court erred in finding that
  architect did not engage in  negligent misrepresentation regarding his
  qualifications, knowledge and job performance in entering  into the
  contract with client.  He contends that the following representations made
  by architect meet  this definition.  First, architect represented that he
  was a veterinary specialist with considerable  specialized expertise in the
  design of veterinary facilities, including handicapped accessibility.  
  Second, architect represented that because he was a specialist designer, he
  understood the impact that  design decisions have on costs, staffing, and
  methods of practice.  Third, to assuage client's  reservations about
  employing an out-of-state architect, architect assured client that building
  codes 

 

  and materials were available to ensure that client's building complied with
  applicable codes.  Client  contends that because he justifiably relied on
  these representations in hiring architect, and incurred  increased costs
  attributable to architect not knowing or discovering the elevator
  requirement prior to  designing the clinic, architect is liable for his
  pecuniary loss.  

       Vermont has adopted the definition of negligent misrepresentation from
  the Restatement  (Second) of Torts: 

    One who, in the course of his business, profession or employment,
    or  in any other transaction in which he has a pecuniary interest,
    supplies  false information for the guidance of others in their
    business  transactions, is subject to liability for pecuniary loss
    caused to them  by their justifiable reliance upon the
    information, if he fails to  exercise reasonable care or
    competence in obtaining or  communicating the information.

  Limoge v. People's Trust Co., 168 Vt. 265, 268-69, 719 A.2d 888, 890 (1998)
  (quoting Restatement  (Second) of Torts § 552(1) (1977)).  What is
  reasonable care or competence depends on the  circumstances, and will vary
  depending on many factors; the question is, therefore, generally for the 
  factfinder.  Id. at 270, 719 A.2d  at 891.  

       Client relies primarily on Limoge, in which we reversed a superior
  court order granting  summary judgment to the defendant on a negligent
  misrepresentation claim and remanded for a trial  on the merits because the
  factfinder could have found negligent misrepresentation on the facts 
  presented.  Id. at 269, 271, 719 A.2d  at 890, 892.  Unlike Limoge, here,
  the court has held a trial on  the merits, and the factfinder found that
  architect did not fail "to exercise reasonable care or  competence in . . .
  communicating the information" client claims to be false.  Because this 
  conclusion is supported by the findings and the evidence, we must uphold
  it.  See Begins v. Begins,  168 Vt. 298, 301, 721 A.2d 469, 471 (1998).  

 

       There is also a more fundamental problem with client's negligent
  misrepresentation theory.   Client claims architect was negligent either
  because he "misstated his knowledge and background  in[] applicable
  building codes" or because he misstated "his willingness to sufficiently
  research  applicable building codes in performing his work."  The only
  evidence client has to arguably support  the former theory is that
  architect did not find the elevator requirement.  We do not believe that
  the  evidence supports the theory.  The evidence showed that architect was
  a specialist in designing  veterinary facilities; that he had extensive
  experience in dealing with national building codes and was  often employed
  by clients in other states; that he understood the effect design has on
  cost, staffing,  and methods of practice; and that building codes were 
  available to him to ensure that any structure  complied with applicable
  codes.  Architect did not claim to know the applicable Vermont codes 
  before he began providing services.  His only claim was that the
  requirements of the codes were  ascertainable, even from New Mexico, and
  that he could and would ascertain them.  In the light of  this evidence,
  the fact he did not find the elevator requirement shows nothing about the
  state of  architect's "knowledge and background in[] applicable building
  codes" when he made the  representation.

       Client's second theory turns a promise to perform into a statement of
  fact so that failure to  perform automatically shows a misrepresentation of
  intention to perform.  As a result, any breach of  contract would be
  misrepresentation so that negligent breach would be a tort.  See Gerhardt
  v. Harris,  934 P.2d 976, 985 (Kan. 1997) (rejecting notion that any breach
  of contract claim could be treated as  including negligent
  misrepresentation claim as overly expansive reading of Restatement (Second)
  of  Torts § 552).  We have emphasized in prior cases the need to keep tort
  and contract theories separate  so that negligence concepts do not overrun
  the limitations on contractual rights and 

 

  remedies.  See Breslauer v. Fayston Sch. Dist., 163 Vt. 416, 421-22, 659 A.2d 1129, 1133 (1995).   We do so here by holding that "information" for
  purposes of the elements of negligent  misrepresentation does not normally
  include the intention to perform a contractual commitment.  See  Murray v.
  Xerox Corp., 811 F.2d 118, 123 (2d Cir. 1987) (applying New York law);
  McAlister v.  Citibank, 829 P.2d 1253, 1261 (Ariz. Ct. App. 1992) (under
  Restatement § 552); High Country  Movin', Inc. v. U.S. West Direct Co., 839 P.2d 469, 471 (Colo. Ct. App. 1992) (under Restatement §  552); Bank of
  Shaw v. Posey, 573 So. 2d 1355, 1360 (Miss. 1990). (FN1)

       Client next contends that he should recover sums paid to architect
  because architect was not  licensed at the time the contract was signed or
  when architect performed services, as is required by  statute.  See 26
  V.S.A. § 122(a)(1) (prohibiting unlicensed persons from practicing
  architecture in  Vermont).  Architect obtained his license to practice
  architecture in Vermont on January 19, 1994.   The parties dispute the date
  that they entered into a written contract, client claiming that it was in 
  December 1993, the date on the contract, and architect claiming it was not
  until client returned the  signed contract in April 1994.  The court  found
  that the parties executed the written contract in late 

 

  January 1994, after architect was licensed.  Client argues, however, that
  the date the contract was  signed is not determinative, as architect
  negotiated the contract, accepted a $2,000 retainer, visited  Vermont to
  consult with client and completed schematic drawings of the final design
  all by mid-January before obtaining the license.  Client contends that
  these facts show that architect was  practicing architecture prior to
  obtaining a license. 

       Client relies on Markus & Nocka v. Julian Goodrich Architects, Inc.,
  127 Vt. 404, 250 A.2d 739 (1969), in which we held that architectural
  contracts entered into in violation of the registration  statutes are
  illegal and unenforceable.  Thus, we reversed a trial court decision
  assessing architect  fees against the defendant, the principal architect on
  a hospital project in Burlington, Vermont,  because no member of the
  plaintiff Massachusetts architectural firm, which the defendant had hired 
  as consulting architect for the project, was registered under the
  architect-licensing statute.  Client  contends that under Markus, he is
  entitled to return of the fees that architect collected under an 
  unenforceable contract.

       There are a number of possible grounds to distinguish Markus.  In that
  case, the  Massachusetts architects never became licensed in Vermont.  
  Here, architect pursued a Vermont  license before there was a contract
  between the parties and received the license before the written  contract
  was signed and before the bulk of the services were delivered.   In Markus,
  the architectural  firm was suing for its fee; here the client is suing for
  return of the fee paid to the architect.  

       We distinguish Markus based on the latter difference.  In  Gallagher
  v. Leary, 164 Vt. 633,  674 A.2d 787 (1996) (mem.), we decided that failure
  of the architect to obtain a license could not be  grounds for a suit for
  return of the architect's fee.  In reaching that decision, we noted that
  "the  licensing statute itself does not authorize recovery of fees."  Id.
  at 633, 674 A.2d  at 788.  Subsection 

 

  122(b) of the licensing statute provides that a person who violates the
  statute is "guilty of a  misdemeanor and shall be fined not more than
  $5,000.00," but the statute does not specify other  penalties, nor recovery
  of design fees from violators.  Id. at 633-34, 674 A.2d  at 788.  Moreover, 
  recovery of payments is not necessary to effectuate the policy of the
  licensing statutes; thus, we saw  "no reason to read into the statute an
  additional penalty not established by the Legislature."  Id. at  634, 674 A.2d  at 788.  Here, the trial court concluded that Gallagher prevented
  client from  recovering back the fee paid to architect.

       Client urges us to distinguish  Gallagher  because in that case, the
  clients actually used the  revised plans the architect had prepared, and we
  noted that  "requiring a party who provides services  to return the fees
  received would provide an unfair windfall to the complaining party."  Id.  
  According to client, the unjust enrichment concern present in Gallagher is
  not present here because  the plans that architect provided here were
  unusable because they failed to comply with the elevator  requirement. 
  Architect disputes this characterization, but we need not resolve this
  issue.  Although  unjust enrichment is a rationale for the Gallagher
  holding, the absence of customer satisfaction in a  particular case does
  not change the rule.  As in Gallagher, "plaintiff[] [has] received the
  services for  which [he] paid.  Returning the design fee would be
  inequitable under the circumstances."  Id.

       Finally, client argues that the trial court erred by concluding that
  architect was not negligent  despite designing a two-story veterinary
  clinic without an elevator, and despite failing to inform  client of the
  elevator requirement.  In making this argument, client does not attack the
  findings as  unsupported by the evidence or attack the conclusions as
  unsupported by the findings.  Instead, he  argues that the trial court
  should have granted the trial-by-court equivalent of judgment as a matter
  of  law.  Cf. V.R.C.P. 50(a)(1) (court may grant judgment as matter of law
  during jury trial where 

 

  party has been fully heard on issue and there is no legally sufficient
  basis for reasonable jury to find  for that party on that issue).

       Generally, to prove architect malpractice in the design of a
  structure, the client must show  that the architect negligently breached a
  duty to the client and, as a proximate result of the breach, the  client
  suffered injury.  See So. Burlington Sch. Dist. v.
  Calcagni-Frazier-Zajchowski Architects, Inc.,  138 Vt. 33, 41, 410 A.2d 1359, 1362 (1980).   The leading case describing the negligence standard is 
  Coombs v. Beede, 36 A. 104 (Me. 1896):

    The undertaking of an architect implies that he possesses skill
    and  ability, including taste, sufficient to enable him to perform
    the  required services at least ordinarily and reasonably well;
    and that he  will exercise and apply, in the given case, his skill
    and ability, his  judgment and taste, reasonably and without
    neglect.  But the  undertaking does not imply or warrant a
    satisfactory result.

  Id. at 105; see also Chaney Bldg. Co. v. City of Tucson, 716 P.2d 28, 31
  (Ariz. 1986) (architect  "must use skill, care and diligence to provide
  sufficient and adequate plans," but "work can be  inaccurate or imperfect
  without being an actionable deviation from standards of care"); Smith v. 
  Goff, 325 P.2d 1061, 1064 (Okla. 1958) (architect required to exercise
  "ordinary professional skill  and diligence" not to "guarantee perfect
  plans or satisfactory results").

       The duty against which the Coombs negligence standard is applied
  generally arises from the  contractual responsibilities the architect
  assumed.  See Note, Architectural Malpractice: A Contract-Based Approach,
  92 Harv. L. Rev. 1075, 1089 (1979).  However, irrespective of the
  contractual  language, courts have held that the architect's duty includes
  a requirement that a building designed   will comply with all federal,
  state and local building codes in effect at the time.  See, e.g.,  
  Greenhaven Corp. v. Hutchcraft & Assocs., 463 N.E.2d 283, 285 (Ind. Ct.
  App. 1984) (implied in 

 

  every contract between architect and employer is agreement that plans will
  comply with building  codes); Bott v. Moser, 7 S.E.2d 217, 218 (Va. 1940)
  (architect is bound to know the building  restrictions of designated place,
  and to draw plans and specifications accordingly); Bebb v. Jordan,  189 P. 553, 555 (Wash. 1920) (all contracts for architectural services have
  implied condition that  work will be suitable for the purposes intended and
  presumes that architect knows restrictions  imposed by law of place where
  building is to be erected); see also Graulich v. Frederic H. Berlowe & 
  Assocs., 338 So. 2d 1109, 1110-11 (Fla. Ct. App. 1976) (relying on Bott and
  affirming trial court  findings based on expert testimony that it is
  incumbent upon architect to check with governmental  authority as to
  regulations before preparing preliminary plans). 

       Thus, client has a simple theory of liability in this case - that
  architect negligently breached  the duty to know and comply with the
  applicable building codes, and that the breach caused client  damage.  In
  support of this theory, client offered the testimony of a Vermont architect
  who stated that  defendant-architect breached the applicable duty of care
  on this theory.

       Nevertheless, the evidence presented a number of reasons why the
  simple theory should not  prevail.  First, architect's staff called the
  Vermont Department of Labor and Industries, the agency  responsible for
  state building codes, see 21 V.S.A. § 252(a), and sought all applicable
  codes.  The  staff person was not told of the special rules on handicapped
  accessibility promulgated under 21  V.S.A. § 273(g) and in effect at that
  time, referred to at trial as the Green Book.  See Department of  Labor and
  Industry, Vermont Access Board, Accessibility in Public Buildings: Rules
  for New  Construction and for Alterations to Existing Buildings, 4 Code of
  Vermont Rules 24 100 002-1 

 

  through 111 (amended in 1997 and 1998). (FN2)  Architect testified that
  this inquiry was made  within two months of beginning work on the project.
  Thus, the court could find that the failure to  know the elevator
  requirement was not negligent under the circumstances.

       Second, and related, the rules relied upon by client contain no
  explicit elevator requirement  for the building involved. (FN3) 
  Apparently, the Department was routinely requiring an elevator for 
  buildings of this size despite lack of explicit support in its regulations. 
  Thus, client's theory of duty  would require the architect to seek out
  unwritten regulatory requirements through conversations with  government
  regulators.  Client's expert witness testified to that theory of the
  architect's duty, but the  court could conclude it was not a minimum
  standard on which to find liability.  Even this theory was  of debatable
  application because, once the elevator requirement was discovered,
  architect discussed  it with Department staff and developed a strategy to
  get around it.  The strategy was never employed,  in part, because client
  employed a permit consultant and sought a variance. (FN4)

 

       Third, the parties were in the first phase of a contract, and that
  phase necessarily included  determining regulatory requirements and
  adapting to them.  See generally Wright & Boelzner,  Quantifying Liability
  Under the Architect's Standard of Care, 29 U. Rich. L. Rev. 1471, 1473
  (1995)  (describing the usual four phases of an architect's contract; first
  phase includes "research of the site  and of applicable government
  requirements").  Thus, the superior court explained, "Nothing in the  AIA
  contract or the law in general requires an architect to draw up a building
  which will be  permitted on the first draft."  The court concluded that
  architect's duty was to "overcome  impediments by redrafting," and he did
  so here.

       Other facts supported this theory.  In initial discussions between
  client and architect, client  wanted a larger building than the limited
  budget could afford.  To solve the budget problem, architect  suggested
  attempting to capture second story space that would have otherwise been
  lost in an attic.   The proposal was to use this space for nonpublic
  functions - client's office, a meeting room, a  sleeping space and storage. 
  The discovery of the elevator requirement resurrected the basic conflict 
  between client's desires and his budget.  Although he had considered the
  first phase of the contract  completed, architect offered, without further
  charge, to prepare new designs that would eliminate  spaces the client
  wanted, or reduce their size, or alternatively, would increase the size of
  the building  and its cost.  By that time, however, client began to blame
  architect for his difficulties and fired him.

       The trial court particularly emphasized the willingness of the
  architect to create new designs  without charge as fully complying with his
  contractual duty, if not exceeding it, and we agree.   Compare Bebb, 189 P.  at 556 (reversing trial court and entering judgment for architect on plans
  that 

 

  client alleged failed to comply with city ordinances because plans were
  incomplete when client  stopped work on them, and "he cannot now be heard
  to say that when completed they would have  violated the contract as to
  cost, or the city ordinances, or would have otherwise been defective") with 
  Bott, 7 S.E.2d  at 218 (reversing judgment for architectural fees because
  plans prepared did not  comply with setback restrictions in ordinance, and
  architect "did not at any time offer to change his  plans or to redraft
  them to accomplish the purpose for which they were drawn.").  Client urges
  us to  discount this fact because architect submitted a bill that stated he
  had completed Phase I services by a  design that had no elevator, and
  because architect's alternative plans increased the cost of the  building,
  and, as a result, his fee.  We find neither of these arguments
  determinative.  Architect  initially believed that he had fulfilled his
  Phase I commitments, but when he understood the elevator  issue, and
  client's response to it, he readily accepted his obligation to produce a
  complying design.   The fact that a complying design might increase the
  cost of the building, and architect's fee, reflects  the basic conflict
  between client's available funds and the size and functionality of the
  building to be  built with those funds, not an attempt by the architect to
  get around limits on his fees.

       The court could conclude on these facts that client's difficulties
  were caused by his own  budgetary limitations, and architect was being
  creative, not negligent, in exploring the use of attic  space to meet
  client's needs.  Even after the elevator requirement was discovered,
  obtaining a  variance, or finding a way around it, were still the best
  options for client to have a fully usable  building within his budget.

       Finally, the trial court relied upon the fact that client employed a
  permit consultant and  sought a variance from the elevator requirement from
  the Vermont Architectural Barrier Compliance  Board (now Access Board, see
  21 V.S.A. § 272(a)).  Client obtained the variance he applied for, but 

 

  it allowed him to use the second floor only for an office and storage. 
  Client complained that the use  restriction was too limiting, but he had
  not sought a broader variance. (FN5) 

       We conclude that client has not shown that architect was negligent as
  a matter of law, and  that the superior court's conclusion that architect
  was not negligent is supported by its findings and  the evidence as a
  whole.

       Affirmed.




                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice




------------------------------------------------------------------------------
                                  Footnotes


FN1.  For purposes of fraud, the Restatement (Second) of Torts § 530(1)
  provides "A  representation of the maker's own intention to do or not do a
  particular thing is fraudulent if he does  not have that intention." 
  Courts have split on whether this doctrine applies to negligent 
  misrepresentation claims.  Compare Gerhardt, 934 P.2d  at 986 (§ 530(1) does
  not apply to negligent  misrepresentation claims) and City of Warrensburg
  v. RCA Corp., 571 F. Supp. 743, 753 (W.D. Mo.  1983) (same), with Grahek v.
  Voluntary Hosp. Coop. Ass'n, 473 N.W.2d 31, 35 (Iowa 1991)  (applying fraud
  standard - "statement of an intent to perform a future act is actionable in
  fraud if the  statement is made with existing real intention not to
  perform" - to negligent misrepresentation claim).  We need not resolve this
  question.  Even if plaintiff could base a negligent misrepresentation claim 
  on a showing that defendant had no intention of fulfilling a promise to
  perform, he cannot establish  defendant's intent solely by proof of
  nonperformance of the promise.  Restatement (Second) of Torts  § 530(1),
  cmt. d (1977).  In this case, the only evidence plaintiff has offered of
  defendant's intent at  the time of making the representation is his failure
  to discover the elevator requirement.  This  evidence is inadequate, even
  assuming we accept that plaintiff can show the tort based on  defendant's
  intent not to perform his promise to determine the applicable regulatory
  law.

FN2.  The court never explicitly found that architect contacted the
  Department through his staff.   It did find: "Although Vermont basically
  follows the national codes and regulations, it has published  its own
  special book on handicap accessibility, which architect was never given. 
  Vermont is  unusually strict in requiring such accessibility." We construe
  findings in support of the conclusions  and judgment.  Brattleboro Child
  Dev., Inc. v. Town of Brattleboro, 138 Vt. 402, 406, 416 A.2d 152,  155
  (1980) overruled on other grounds by Am. Museum of Fly Fishing, Inc. v.
  Town of Manchester,  151 Vt. 103, 557 A.2d 900 (1989).  The court's finding
  that architect was not given the accessibility  regulations must refer to
  architect's testimony that his staff requested all codes from the
  Department  but did not receive the accessibility requirements.

FN3.  The superior court found that an elevator was required for client's
  building by 21 V.S.A.  §  274(b). This statute contains an elevator
  requirement: "All other multistory buildings shall be provided  with
  vertical access unless the building is exempted from this requirement
  pursuant to a rule of the access  board."  However, the relevant language
  was added to the statute in 1996, more than two years after the  parties
  began working on a two-story design for the clinic.  See 1995, No. 187
  (Adj. Sess.) § 5.

FN4.  Client's expert witness testified that architect was negligent in not
  discussing his strategy  for avoiding the elevator requirement with client. 
  The court rejected this theory, and client has not  raised it here.  In any
  event, the court could find client effectively took over dealing with the
  elevator  requirement by hiring the regulatory consultant and pursuing the
  variance.

FN5.  Client argues that the variance was inadequate, in part, because it
  specified that it was  granted "only for the period the building is used as
  described in your application."  Since client  argued, in part, that the
  elevator was unnecessary because the second story space would not be used 
  by the public, we fail to see how a variance could be granted without such
  a requirement.