Opinion
20-P-653
05-05-2021
ADH COLLISION OF BOSTON, INC. v. Rocco VIGORITO & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, Rocco Vigorito and A&R Trust ("the Landlords") were found to have breached the commercial lease agreement with their tenant, ADH Collision of Boston, Inc. ("ADH"), while also willfully and knowingly engaging in unfair and deceptive misconduct in violation of G. L. c. 93A. The jury awarded $66,000 in damages for the breach of contract claim, but awarded no monetary damages for the Landlords' violation of G. L. c. 93A. Following the jury verdict, ADH filed a motion for multiple damages and attorney's fees, which was granted, resulting in this appeal from the Landlords. We affirm the judge's award of attorney's fees and costs, but vacate the award of multiple damages.
In her order, the trial judge awarded ADH $266,739.40 in attorney's fees, $1,358.57 in costs, and $66,000 in multiple damages.
1. Multiplication of damages. The Landlords claim that the judge erred in finding that the damages for ADH's breach of contract claim arose out of the same transaction or occurrence that gave rise to the c. 93A claim, and in awarding multiple damages based on that finding. We agree.
If the judge finds a willful or knowing violation of G. L. c. 93A, she may double or triple the amount of actual damages suffered by the plaintiff. See G. L. c. 93A, § 11. "[T]he amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence regardless of the existence or nonexistence of insurance coverage available in payment of the claim" (emphasis added). Id. For such claims to arise out of the same and underlying transaction or occurrence, there must be a "causal connection between [the] defendant's wrongful conduct and the resulting damages." Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 748, 755 (1996).
Here, despite the jury awarding no monetary damages from the willful and knowing violation of G. L. c. 93A, the judge doubled the jury's award of $66,000 for the breach of contract claim. The judge explained that the breach of contract claim was not a "freestanding, unrelated cause of action" that happened to be tried with the c. 93A claim, but instead shared a causal connection to the defendant's unfair and deceptive conduct. However, the record before us does not support such a finding.
In T. Butera Auburn, LLC v. Williams, 83 Mass. App. Ct. 496 (2013) (Butera ), this court upheld the doubling of breach of contract damages, in light of a violation of G. L. c. 93A. Both ADH and the judge rely upon Butera to support the multiplication of damages in this case. However, such reliance is misplaced. In Butera, the owner of a veterinary practice sold the practice, including a radiation treatment business, to a prospective buyer. Id. at 498. The seller later engaged in acts of unfair and deceptive misconduct with the goal of recapturing her former clients from the radiation treatment portion of the business, materially misrepresenting her current role in the business to both the buyer and her former clients. See id. at 498-499. Such conduct was in direct violation of the noncompete clause in her agreement with the buyer. See id. at 497-498.
Directed to "avoid duplicative awards," the jury in Butera awarded the buyer $87,500 in contract damages and $13,000 in damages for the c. 93A violation, finding the unfair and deceptive conduct to be willful and knowing. Id. at 500. Specifically asked if the c. 93A damages arose out of the same conduct as the breach of contract claim, the jury answered in the affirmative. Id. at 502. Importantly, the facts of Butera demonstrated that the very misconduct that gave rise the breach of contract claim, namely the seller's willful and knowing violation of the noncompete clause in the sale agreement, also served as the misconduct that gave rise to the breach of G. L. c. 93A. See id. at 502-503. This court held that the judge erred as a matter of law by doubling only the c. 93A damages but not the contract damages. See id.
Here, as in Butera, the jury were instructed not to duplicate damages. In response, the jury awarded $66,000 for the Landlords' breach of the lease agreement, but specifically chose not to award any monetary damages for the Landlords' willful and knowing violation of G. L. c. 93A. Unlike in Butera, however, the special verdict form did not ask the jury whether the defendant's unfair and deceptive conduct arose out of the same transaction as the breach of contract.
Despite the award of no monetary damages for the c. 93A violation, ADH argues that the jury may have awarded damages for the Landlords' unfair and deceptive conduct under the umbrella of the breach of contract claim. This is merely speculation. Equally speculative -- although more closely aligned with the evidence -- is the Landlords' theory that the jury's award of $66,000 for breach of contract was based on the Landlords' failure to pay for utilities, totaling $60,309.54 from the onset of the lease agreement in 2014, and $5,800 in unpaid snow removal charges, dating back to 2015.
The judge's determination that the breach of contract damages and the c. 93A violation arose out of the same transaction or occurrence involves a question of fact. See Rivera v. Commerce Ins. Co., 84 Mass. App. Ct. 146, 149 (2013). "We review the trial judge's finding of facts for clear error" (citation omitted). Trace Constr., Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346, 351 (2011). "A finding of fact by the trial judge will not be deemed clearly erroneous unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (citation and quotation omitted). White v. Hartigan, 464 Mass. 400, 414 (2013). Our review of all of the evidence in the record before us, construed in ADH's favor, leaves us with the conviction that it was clear error to find that the breach of contract damages shared a causal connection to the Landlords' wrongful violation of G. L. c. 93A.
Under Count II of the original complaint, alleging breach of contract, ADH sought monetary relief for the Landlords' alleged breach of quiet enjoyment and the failure to pay for utilities and snow removal on the property. The Landlords' failure to pay for ADH's utilities and snow removal dated back to 2014. Any alleged breach of quiet enjoyment, and any wrongful conduct in violation of G. L. c. 93A, however, did not occur until 2016, when the Landlords sought to improperly evict ADH in an attempt to sell the property tenant-free to a prospective buyer, Wynn Boston Harbor Casino. According to Adam Haddad, the owner of ADH, the relationship with the Landlords was "great" from the time of the grand opening in 2014 until the misconduct in the summer of 2016. ADH cannot identify, nor do we find in the record, any facts to suggest that the conduct that served as the basis for the jury's award of breach of contract damages shared any connection in time to the wrongful conduct that gave rise to the violation of G. L. c. 93A. Given the substantial gap in time between the Landlord's initial failure to pay for utilities and the beginning of the misconduct that gave rise to the c. 93A claim -- coupled with the fact that the only concrete evidence of monetary damages related to the breaches of the lease agreement with respect to utilities and snow removal -- the record provides no basis to conclude that these two claims arose out of the same transaction or occurrence. Cf. Butera, 83 Mass. App. Ct. at 497-501 (causal connection found where conduct that gave rise to c. 93A violation occurred at essentially same point in time as conduct that served as basis for breach of contract claim). As such, it was clear error for the judge to double ADH's monetary damages. See G. L. c. 93A, § 11.
ADH sought damages for breach of quiet enjoyment, but neither the jury's special verdict form, nor the record before us, provide any concrete evidence that ADH suffered monetary damages from such alleged breach.
ADH, in its brief, admits that the evidence at trial plainly showed that any alleged breach of quiet enjoyment began only "on an ongoing basis from the summer of 2016 until the jury's verdict."
2. Attorney's fees. The Landlords also argue that the judge erred in awarding attorney's fees pursuant to G. L. c. 93A, § 11. In particular, the Landlords argue that the jury's failure to award any monetary damages for the violation of G. L. c. 93A prevents the award of attorney's fees and costs. We disagree.
Pursuant to G. L. c. 93A, § 11, "[i]f the court finds ... that there has been a violation of [G. L. c. 93A], the petitioner shall, in addition to other relief ... and irrespective of the amount in controversy, be awarded reasonable attorneys’ fees and costs incurred in said action" (emphasis added). "Under § 11, a plaintiff must be entitled to relief in some other respect in order to be entitled to an award of attorney's fees.... A plaintiff suing under § 11, however, cannot recover attorneys' fees for merely identifying an unfair or deceptive act or practice. Under § 11, that unfair or deceptive conduct must have had some adverse effect upon the plaintiff, even if it is not quantifiable in dollars" (emphasis added). Halper v. Demeter, 34 Mass. App. Ct. 299, 304 (1993), quoting Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 718 (1989).
Here, the jury awarded no monetary damages from the Landlords' unfair and deceptive misconduct, despite finding a willful and knowing violation of G. L. c. 93A. However, irrespective of the lack of monetary damages, injunctive relief was granted by stipulation of the parties to prevent the Landlords from gaining unauthorized access onto the premises. Such stipulation expressly stated that it "shall have the full force and effect of an injunction entered by the Court itself unless [the] Court shall specifically reject [the] Stipulation and declare it null and void and of no force and effect."
In addition to injunctive relief, ADH was forced to seek a declaratory judgment as a result of the Landlords' misconduct. The trial judge granted such relief, declaring that the lease was still in full force and effect, and that it was the Landlords, not ADH, who had breached the terms of the lease agreement. Where ADH received both declaratory relief and a separate injunction by stipulation, ADH has sufficiently demonstrated that it is entitled to attorney's fees, despite the lack of quantifiable monetary damages stemming from the c. 93A violation. See Halper, 34 Mass. App. Ct. at 304. See also Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 672 (2002) (c. 93A uniquely mandates the award of attorney's fees despite the lack of quantifiable damages to deter willful and knowing deceptive practices).
Conclusion. We deny ADH's request for an award of its appellate attorney's fees. So much of the amended/corrected judgment as awarded multiple damages under c. 93A is vacated, and the judgment shall be modified to reduce the total amount awarded by $66,000. As so modified, the amended/corrected judgment is affirmed.
So ordered.
vacated in part; affirmed as modified in part