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-720
ALAN FILZER & others1
vs.
PITSICK LLC & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs are abutters or neighbors (abutters) of
three separate nonconforming lots in the city of Newton that
were being developed by Pitsick, LLC (Pitsick). The abutters
filed a Superior Court complaint alleging breach of contract by
Pitsick of an agreement to resolve a Land Court action involving
the lots. They later added a claim that Pitsick's conduct, as
well as that of its principal Stephen T. Pitrowski, amounted to
a violation of G. L. c. 93A. The parties' dispute arose because
1Monica Crowley and Paul Crowley, Diane Dion and Arthur Dion, Judith Mannix and John Koot, Gerald Burg, and Patience Orobello and Joshua Shriber. Gerald Burg, Patience Orobello, and Joshua Shriber did not participate in the appeal.
2Stephen T. Pitrowski and MountainOne Bank. MountainOne Bank did not participate in the appeal. they had not disclosed the agreement to the Land Court judge,
who subsequently issued a decision on pending summary judgment
motions in the Land Court action. The parties disagreed about
how that Land Court judge's decision affected the agreement, if
at all. In the Superior Court action relating to the agreement,
the parties cross-moved for summary judgment, and a judge
allowed the abutters' motion for summary judgment in part,
determining that Pitsick had committed a breach of the agreement
and its duty of good faith and fair dealing. After a bench
trial on the G. L. c. 93A claim, the same judge found that
Pitsick and Pitrowski (defendants) had engaged in unfair or
deceptive conduct. Pitsick and Pitrowski appeal, arguing in
essence that performance under the agreement was rendered
impossible, or at least was frustrated, by the intervening Land
Court judgment. We affirm.
Background. 1. Summary judgment record. "We summarize
the undisputed facts drawn from the summary judgment record; to
the extent the record includes disputed evidence, we consider
that evidence in the light most favorable to . . ." the
nonmoving party. Cesso v. Todd, 92 Mass. App. Ct. 131, 132
(2017). We reserve discussion of other facts as they become
pertinent to our analysis.
2 The plaintiffs are abutters or neighbors of a development
on three separate nonconforming lots -- lots 109, 110, and 1113 -
- on Goddard Street in Newton. Each lot contains 5,000 square
feet and fifty feet of frontage. Lot 110 is situated between
lots 109 and 111, and it has been improved with a single-family
dwelling since around 1924.
In January 2011, the lots were conveyed to Pitrowski and
his business partner, the principals of Pitsick, a Massachusetts
limited liability company that develops and sells residential
real estate. Soon after, Pitsick obtained building permits to
construct single-family homes on lots 109 and 111.
In January 2012, Pitsick began construction and excavation
on lots 109 and 111. At that time, the abutters requested that
the building commissioner revoke Pitsick's building permits for
lots 109 and 111.4 When the commissioner did not respond to
their request, the abutters then filed a complaint in the Land
Court for, and later obtained, an order of mandamus directing
the building commissioner to act relative to the two building
3 Known respectively as 26, 22, and 18 Goddard Street.
4 In May 2012, Pitsick conveyed lot 110 to another LLC, who then conveyed the lot to Patience Orobello and Joshua Shriber, who later signed the agreement at issue and joined the Superior Court case as plaintiffs. They were eventually voluntarily dismissed as plaintiffs. As noted earlier, Orobello and Shriber did not participate in this appeal. They also did not participate in the Land Court case.
3 permits issued for lots 109 and 111. The building commissioner
promptly denied the request to revoke the permits.
In January 2013, the abutters appealed the building
commissioner's denial to the Zoning Board of Appeals (ZBA),
which reversed the building commissioner's denial and revoked
the building permits for lots 109 and 111. Pitsick appealed the
revocation of the permits for lots 109 and 111 to the Land
Court, naming as defendants the abutters and members of the ZBA.
The parties argued cross motions for summary judgment.
While the summary judgment motions were pending, and
without notifying the Land Court judge, the abutters, the owners
of lot 110, Pitsick, Pitsick's principals, and Pitsick's
construction lender, MountainOne Bank, entered into an agreement
on April 6, 2015.5 Through the agreement, the abutters and the
defendants "agreed to compromise their differences without
further litigation." The agreement generally provided that
Pitsick would: (1) pay $80,000 to the abutters; (2) apply, with
the abutters' support,6 for a special permit from the ZBA to
redivide the three lots into two lots (comprising 7,000 and
5 The ZBA, while a party to the Land Court case, was not a party to the agreement, and MountainOne Bank, while not a party to the Land Court case, was a party to the agreement.
6 The abutters and their counsel testified in favor of the issuance of the special permit in person at the public hearing.
4 8,000 square feet), thereby enabling Pitsick to complete the
single-family home partially constructed on lot 109 consistent
with the original building permit for that lot; (3) restore lot
111 to substantially its landscaped condition prior to Pitsick's
excavation and construction work; (4) remove a driveway and
install a new driveway on lot 110 and restrict any construction
of a new single-car garage on lot 110 to certain limits; and
(5) declare and record a declaration of restrictive covenants to
run with the land for thirty years limiting the construction of
any structure on lot 111. It provided that, once those
enumerated conditions were met, Pitsick and the abutters would,
"together with" the ZBA, promptly execute and file a stipulation
of dismissal of their case in the Land Court.
As part of the agreement, the parties jointly contracted
not to notify the Land Court judge of the agreement though they
knew the Land Court judge could rule on the summary judgment
motions at any time. In fact, the agreement stated that "[a]ny
notification" of the agreement to the Land Court prior to the
issuance of the special permit and expiration of all applicable
appeal periods would constitute a "violation" of the agreement.
The agreement also provided a contingency in the event that
the Land Court judge decided the then-pending summary judgment
motions, expressly stating, "This Agreement shall be binding
5 upon the Parties in resolution of all matters at issue in the
Litigation, and shall supersede in force and effect any judgment
or order issued by the Land Court on the Parties' pending motion
and cross-motions for summary judgment in the Litigation . . ."
(emphasis added).
The special permit to resubdivide the three lots into two
lots was approved on April 6, 2015.7 According to the agreement,
the special permit was subject to an appeals period of sixty
days. On May 14, 2015, the Land Court judge entered a decision
and judgment, finding lots 110 and 111 had merged into a single
lot because of common ownership in 1940, and lot 109 to be a
standalone buildable lot with preexisting nonconforming use
7 Under section 3.2(d) of the agreement, the parties agreed that Pitsick could be released from its obligations if, "within ten (10) calendar days of issuance of the Special Permit," it determined and notified the other parties in writing that "unreasonable conditions" had been imposed on the special permit. "Unreasonable conditions," per the agreement, included:
"any conditions imposed by the Board of Aldermen or any other municipal entity to the issuance of, or contained in, the Special Permit that would increase the cost to the [defendants] of complying with the terms of this Agreement by more than $10,000.00, but excluding ordinary conditions such as preparation of site plans, as-built plans and the like, or the preparation of a modified easement plan, and the [defendants'] attorney's fees."
Pitsick did not notify any other party within the prescribed period of any "unreasonable conditions" imposed by or contained in the special permit.
6 protection under G. L. c. 40A, § 6.8 The judge also stressed the
principles of equity in concluding that lot 109 was buildable,
though it did not meet the necessary 10,000 square foot minimum.
At the time of the Land Court decision, the structure on lot 109
was "ninety-five per cent complete" and the defendants had
relied on the building commissioner's interpretation of the law
that was later rejected in Mauri v. Zoning Bd. of Appeals of
Newton, 83 Mass. App. Ct. 336, 342 (2013).9 Ultimately, the
judge ordered the building permit on lot 109 to be reinstated.
8 The decision extensively recounted the history of ownership of the three lots. Lot 109, prior to the defendants' acquisition of it, had been a thickly wooded lot with no improvements, and historically it had been treated as a standalone lot for tax purposes even when periodically owned by the same owners as lots 110 and 111. Lots 110 and 111, on the other hand, were taxed jointly until 2012, around the time that the defendants conveyed lot 110 to an LLC, who then conveyed it to its current owners. Historically, the previous owners had used lots 110 and 111 as common property; for example, from approximately 1928 to 2011, a freestanding garage servicing the house on lot 110 existed across the lot line between lots 110 and 111. In 1940, while lots 110 and 111 were held in common ownership, an applicable zoning ordinance imposed a new lot size requirement of 7,000 square feet minimum; in 1953, a new zoning ordinance further increased the lot size requirement to a minimum of 10,000 square feet (which is the current minimum lot size and the total size of the merged lots 110 and 111). Accordingly, lots 110 and 111 were "rendered . . . adjacent, non-conforming, commonly-held lots" in 1940 and "necessarily merged for zoning purposes." The current owners of lot 110 were not parties to the Land Court case, and the decision did not discuss how the merger for zoning purposes would affect the ownership of lots 110 and 111.
9 The Supreme Judicial Court denied further appellate review. See 465 Mass. 1104 (2013).
7 Even though the structure on lot 111 constituted a violation of
the zoning ordinance, the judge declined to issue an order
directing the structure on lot 111 be razed. The judge noted it
might be possible for the defendants to apply for a variance to
build on lot 111; but, without such a variance, the ZBA was
right to revoke the building permit for lot 111. The judge
acknowledged that the "path forward for the parties is now
somewhat uncertain."
After the Land Court decision, Pitrowski and Pitsick
expressed concerns as to the decision's legal effect on the
agreement. The defendants' counsel wrote to the city's counsel
seeking a guarantee that the special permit was not supplanted
by the Land Court decision and remained valid, but the
defendants received no written assurance. Meanwhile, the
abutters' counsel asked Pitsick to consent to an extension of
time to file a motion for reconsideration of the Land Court
decision. Pitsick did not agree. Facing a deadline to seek
reconsideration, the abutters' counsel wrote to Pitsick's
counsel, expressing that "conversations" between counsel had
"created doubts" about whether Pitsick intended to perform its
obligations under the agreement and asked for "written
assurance" that Pitsick would "abide by and promptly perform in
full its obligations" set out in the agreement.
8 Pitsick responded by proposing to renegotiate the
agreement, sending a proposal that the parties agree "that the
current Settlement Agreement is null and void," and by
separately declaring that the agreement was null and void. The
abutters rejected this proposal and reaffirmed their belief that
the agreement and special permit remained valid. Over the next
month, both the defendants' and abutters' counsel continued
conversations but, ultimately, the defendants failed to confirm
that they would abide by the agreement.
On June 5, 2015, the abutters filed a motion for
reconsideration of the Land Court decision.10 On June 8, 2015,
Pitsick took the position that it was allowed to void the
agreement because the abutters' Land Court filings would cause
it to expend more than $10,000, which it claimed constituted an
"unreasonable condition" under the agreement.
The abutters then initiated the present Superior Court
action on July 28, 2015, essentially seeking specific
performance of the defendants' obligations under the agreement
and damages for breach of contract and breach of the implied
covenant of good faith and fair dealing.11
10All parties appealed the decision of the Land Court. The parties dismissed their appeals by agreement in January 2016.
11The abutters also initially brought a breach of contract claim against MountainOne Bank, Pitsick's lender, for its
9 2. Trial record. After a bench trial, the judge adopted
the stipulation of undisputed facts and legal conclusions from
the summary judgment record and his earlier memorandum and order
on the cross motions for summary judgment. Given the
"tremendous amount of overlap between the plaintiffs' proposed
findings and [the judge's] summary judgment ruling," the judge
clarified that he also adopted much of the plaintiffs' proposed
findings of fact as well as portions of the defendants' admitted
facts. Additionally, the judge found the following.
The defendants' failure to give assurances that they would
honor the agreement was justification for the "placeholder
filings" by the plaintiff in the Land Court case.
The judge also found that Pitrowski "felt that, as a result
of the [Land Court decision], Pitsick was not getting the full
benefit it hoped under the settlement agreement." As a result,
"Pitsick tried to gain a benefit and gain a better deal in light
of [the Land Court] decision and the uncertainty that it
created," which constituted an unfair trade practice. Because
the judge found that Pitrowski believed he was justified in his
position, the judge did not find the defendants' use of the
failure to disburse the payment; but, in May 2016, the abutters agreed that the dispute was properly between the defendants and the abutters, and MountainOne Bank in turn would abide by the litigation's outcome regarding the enforceability of the agreement.
10 unfair practice to be a knowing or willful violation of G. L.
c. 93A, § 2, and therefore did not multiply damages.
Accordingly, the judge determined that the damages included the
$80,000 owed under the agreement as well as $15,000 in nominal
damages, including interest from the date of filing at the
statutory rate plus reasonable attorney's fees.12
Discussion. 1. Summary judgment. Summary judgment may
enter when the record shows that "there is no genuine issue as
to any material fact and that the moving party is entitled to a
judgment as a matter of law." Mass. R. Civ. P. 56 (c), as
amended, 436 Mass. 1404 (2002). "We review a grant of summary
12The judge initially ordered, on April 22, 2024, that the plaintiffs were "entitled to specific performance of promises made in the Settlement Agreement to the extent they are not mooted or rendered impracticable by subsequent events," presumably meaning the dismissal of the owners of lot 110 from the case and the abutters' stipulation of waiver in relation. On May 1, 2024, the judge amended the order for entry of final judgment regarding the specific performance under the agreement requiring improvements and recorded restrictions to run with the land, specifically as to certain restrictive covenants on lots 109 and 111. The declaration of restrictive covenants applied to Pitsick, as the owner of lots 109 and 111, and generally prohibited any construction or improvement on lot 111 (except for minor portions of a single-car garage and driveway located primarily on lot 110 and fencing) as well as any increase in size to the dwelling structure on lot 109. In this May 1, 2024, order, the Superior Court judge noted that the lot reconfiguration envisioned in the agreement was not at issue and therefore his order did "not reference[] the plan" as it had "no continued relevance." Indeed, the abutters had expressed repeatedly that they did not intend to pursue the reconfiguration of the lots in connection with the dismissal of the owners of lot 110.
11 judgment de novo," Deutsche Bank Nat'l Trust Co. v. Fitchburg
Capital, LLC, 471 Mass. 248, 252-253 (2015), to determine
"whether, viewing the evidence in the light most favorable to
the nonmoving party, all material facts have been established
and the moving party is entitled to judgment as a matter of law"
(citation omitted), Molina v. State Garden, Inc., 88 Mass. App.
Ct. 173, 177 (2015).
a. Impossibility and frustration of purpose. The
defendants argue that the summary judgment in favor of the
abutters should be vacated because the Land Court decision
rendered performance of the agreement "impossible, or at the
very least impractical."13 We disagree.
"Performance under a contract may be excused in limited
situations where unanticipated supervening events require it."
Le Fort Enters., Inc. v. Lantern 18, LLC, 491 Mass. 144, 150
(2023). The doctrine of impossibility releases a party from
obligations under a contract where performance has become
impracticable, and that impracticability was "caused by the
13The defendants argue that they were "entitled to present [their] claims of impracticability, impossibility and frustration of purpose to a jury." "However, where the material facts are not in dispute and 'no rational view of the evidence' permits a finding of impracticability or frustration of purpose, summary judgment is proper." Le Fort Enters., Inc. v. Lantern 18, LLC, 491 Mass. 144, 149 (2023), quoting Petrell v. Shaw, 453 Mass. 377, 381 (2009).
12 occurrence of a contingency the non-occurrence of which was a
basic assumption on which the contract was made" (quotation and
citation omitted). Mishara Constr. Co. v. Transit-Mixed
Concrete Corp., 365 Mass. 122, 127 (1974). "[A] contracting
party cannot be excused where the only 'frustration' consists in
the fact that known risks assumed by him have turned out to his
disadvantage" (citations omitted). Baetjer v. New England
Alcohol Co., 319 Mass. 592, 602 (1946).
The defendants contend that, as a result of the Land Court
judgment, the redivision of the lots as envisioned under the
agreement cannot be legally given effect because the merged lot
110 and 111, as created under the Land Court judgment, "exactly
meets the lot area requirements" under the zoning ordinance.
The reduction in size as to the merged lot, as contemplated by
the agreement and corresponding 2015 special permit, therefore
would create an improper nonconformity. See, e.g., 81 Spooner
Rd., LLC v. Zoning Bd. of Appeals of Brookline, 78 Mass. App.
Ct. 233, 247 (2010), S.C., 461 Mass. 692 (2012) (new building
lot could not be formed "by dividing an existing conforming lot
if as a result the latter is rendered nonconforming by such a
division").
Here, the agreement contained more than just the redivision
of the lots. In fact, the heart of the agreement appears to
13 have been to create a compromise between the parties to end the
litigation, which notably could have resulted in a judgment
affirming the revocation of both building permits for lots 109
and 111. As a result of the compromise, the abutters agreed to
support the defendants in their application for a special permit
to complete the construction project on lot 109. In exchange
for the abutters' support, Pitsick agreed to pay $80,000 to the
abutters, to record certain restrictive covenants pertaining to
the construction of a single-car garage on lot 110, and perform
certain landscaping obligations on lot 111 to return lot 111 to
its natural state. Notably, there is nothing in the record
showing -- and the defendants made no argument that -- the
judgment prevented any construction on lot 109; and, in fact, by
the time of trial, the defendants had finished construction on a
single-family residence and were issued a certificate of use and
occupancy by the city. No rational view of this record permits
a finding of impracticability of the agreement. See Le Fort
Enters., Inc., 491 Mass. at 149.
Nor was the defendants' purpose frustrated, as the
defendants argue in the alternative. See Chase Precast Corp. v.
John J. Paonessa Co., 409 Mass. 371, 375 (1991) (frustration of
purpose exists where "party's principal purpose is substantially
frustrated without his fault by the occurrence of an event the
14 non-occurrence of which was a basic assumption on which the
contract was made" [citation omitted]). The Land Court decision
was not an "unanticipated circumstance" (citation omitted).
Chase Precast Corp., 409 Mass. at 374. In fact, the agreement
expressly considered the possibility of a Land Court judgment.14
The judge concluded, and we agree, that the agreement expressly
accounted for such an outcome. At the very least, as the judge
noted, when the parties entered into the agreement, they "knew
or should have known the Land Court might enter a decision on
the then-pending motions."
b. Bad faith. The defendants next argue that summary
judgment against them was inappropriate as they "should have
been afforded the opportunity for a jury to determine whether
[the defendants] had acted in bad faith or had a legitimate
purpose for their actions." We disagree.
While "[t]he granting of summary judgment in a case where a
party's state of mind or motive constitutes an essential element
of the cause of action is disfavored," Quincy Mut. Fire Ins. Co.
14The agreement stated that it would "supersede" any judgment from the Land Court. We need not address whether parties can enter into a settlement agreement that is to supersede a decision of a judge of one of the trial courts. We note only that the defendants' signing onto the agreement, which expressly considered the likelihood and potential effect of such a judgment, shows that the judgment could not constitute an unanticipated circumstance.
15 v. Abernathy, 393 Mass. 81, 86 (1984), the "essence of bad
faith, in this context, is not the state of mind but rather the
attendant bad actions," E.A. Miller, Inc. v. South Shore Bank,
405 Mass. 95, 100 (1989).
The communications between the parties consisted almost
entirely of undisputed e-mails, supplemented by the affidavits
of counsel. As the summary judgment record shows, when the
abutters sought confirmation that the defendants were still
intending to abide by the agreement, the defendants not only
refused to give that confirmation but instead attempted to
"renegotiate a different deal that would have declared the
Settlement Agreement null and void." As the judge concluded,
this amounted to an anticipatory repudiation of the agreement.
See K.G.M. Custom Homes, Inc. v. Prosky, 468 Mass. 247, 253-254
(2014). As a result of the defendants' refusals to give
assurances regarding their obligations under the agreement, the
abutters -- predicting the defendants' breach of the agreement
based on their anticipatory repudiation of the agreement --
filed a motion for additional time to file a motion for
reconsideration, a motion for reconsideration, and ultimately a
notice of appeal of the Land Court judgment as "placeholders,
designed to preserve the [abutters'] rights in the event Pitsick
refused to perform under the Settlement Agreement."
16 After the appeals period expired, the defendants indeed
failed to comply with the agreement, claiming that the abutters'
additional Land Court filings after the defendants' refusal to
give assurances constituted an "unreasonable condition" under
the agreement, allowing Pitsick to void the agreement. By the
agreement's own express terms, however, a party was allowed to
void the agreement based on an unreasonable condition only if
such condition was being imposed on the special permit by a
municipal authority and was disclosed to the abutters in writing
within ten days of the issuance of the special permit. "It is a
well-settled rule of contract interpretation that to determine
'whether an agreement is clear and unambiguous, the document
must be viewed in its entirety and its language be given its
plain, ordinary and usual meaning'" (citation omitted). Siebe,
Inc. v. Louis M. Gerson Co., 74 Mass. App. Ct. 544, 549 (2009).
The abutters' conduct therefore could not have reasonably been
considered an unreasonable condition, as explicitly defined
under the agreement, that would have excused Pitsick from its
obligations.
2. Trial issues. On review of a bench trial, "[w]e accept
the judge's findings of fact unless clearly erroneous, but we
'scrutinize without deference the legal standard which the judge
applied to the facts.'" Ndoro v. Torres, 105 Mass. App. Ct.
17 128, 133 (2024), quoting Andover Hous. Auth. v. Shkolnik, 443
Mass. 300, 306 (2005). On review of the claims advanced on
appeal, we discern no errors by the trial judge.
a. Nonpayment by lender and interest award. The
defendants argue that, because the abutters and MountainOne Bank
agreed to suspend any monetary payment set forth in the
agreement until judgment in the underlying dispute, defendants
Pitsick and Pitrowski should not have been held to have
committed a breach of the agreement as "liability associated
with the failure to release the funds should be borne by the
Lender." They further argue that it "would be inequitable to
assess interest from the date of filing to the date of judgment"
given the agreement entered into by the abutters and the lender
where the abutters agreed not to pursue an order for payment.15
We disagree.
15The defendants' counsel wisely conceded at oral argument that the Chief Justice of the Trial Court has the authority to make administrative assignments. Additionally, the defendants concede their arguments pertaining to the admissibility of documents for intent purposes as moot. Furthermore, defendants' counsel clarified that their argument that the complaint should not have been amended was "premised . . . exclusively" on the invalidity of the agreement with which, as discussed supra, we disagree. The Superior Court judge did not abuse his discretion in allowing the abutters to amend their complaint. See Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). The abutters' request for leave to amend the complaint was not futile where evidence existed to support their claims.
18 According to the agreement, the defendants were to "tender
to the [abutters] through Lender the agreed aggregate sum of
EIGHTY THOUSAND AND 00/100 DOLLARS ($80,000.00) . . . once the
conditions thereto set forth below have been fully achieved."
The express language of the agreement placed this obligation on
the defendants, not the lender. See Siebe, Inc., 74 Mass. App.
Ct. at 549 (plain meaning of terms of contractual provisions
apply). In any event, the defendants then took actions to
prevent the lender from disbursing the funds. Shortly after the
dispute arose, the lender informed the parties that it "stands
ready, willing, and able" to meet its obligations once the
parties gave written authorization to disburse the funds. The
defendants did not authorize the payment. And, in fact, when
the abutters later sought an order from the trial court for
MountainOne Bank to make the payment, the defendants opposed the
motion.
The defendants next contend that interest should not have
been ordered where the judge found that the abutters were
entitled to specific performance of the agreement, which
happened to include an $80,000 payment. However, the complaint
sought both monetary damages and specific performance, and the
judge referred to the monetary award -- the $80,000 as
considered in the agreement and additional nominal damages of
19 $15,000 -- as damages. As such, the abutters were entitled to
interest on their contract claim from at least the date they
commenced the action, pursuant to G. L. c. 231, § 6C, which
entitles them to interest from the date of the breach or the
date the action was filed. Even in the alternative, however,
interest would be appropriate if the money award had been an
order of specific performance. See Brennan v. Ferreira, 102
Mass. App. Ct. 315, 318-319 (2023).
b. Chapter 93A. The defendants argue that the judge erred
in finding the defendants violated G. L. c. 93A and awarding
damages and attorney's fees for that claim.16 However, the
judge's factual finding that the defendants engaged in unfair or
deceptive trade practices was not clearly erroneous. In fact,
this finding was rooted in the myriad of undisputed documentary
exhibits as well as the testimony by an abutter and the
abutters' then-counsel. See Vita v. Berman, Devalerio & Pease,
LLP, 81 Mass. App. Ct. 748, 755-756 (2012) (applying clearly
16The defendants primarily base their argument on their earlier contention that performance was excused by the Land Court judgment, which we have considered at length supra. Because we concluded that performance was not excused, we need not discuss the defendants' alternative argument that the "only other possible basis for a finding that [Pitsick] violated G. L. c. 93A was that it did not respond to the Abutters['] March 2016 demand letter under G. L. c. 93A."
20 erroneous standard when "reviewing a trial judge's conclusion
that particular conduct was or was not unfair or deceptive").
"[C]onduct in disregard of known contractual arrangements
and intended to secure benefits for the breaching party
constitutes an unfair act or practice for c. 93A purposes"
(quotations and citation omitted). Anthony's Pier Four, Inc. v.
HBC Assocs., 411 Mass. 451, 474 (1991). Here, the evidence
supported the judge's conclusion that the defendants used the
Land Court judgment to attempt to leverage a better deal for
themselves from the abutters, who faced renegotiation or filing
an action to enforce the agreement. "[W]hen the breaching party
uses its failure to make payments as a wedge against the other
party to gain advantages . . . the breaching party's conduct
rise[s] to the level of an unfair trade practice under G. L.
c. 93A." Zabin v. Picciotto, 73 Mass. App. Ct. 141, 170 (2008).
Finally, we discern no error in the interest award on the
G. L. c. 93A claim. Interest on a judgment of liability for a
violation of G. L. c. 93A is subject to the statutory interest
rate applicable to tort judgments. See generally Greene v.
Philip Morris USA Inc., 491 Mass. 866, 880-881 (2023). The
interest runs from the filing of the complaint even though this
count was raised only in an amended complaint because the
amended complaint relates back to the filing of the complaint.
21 See Mass. R. Civ. P. 15 (c), 365 Mass. 761 (1974). See also
Gill v. North Shore Radiological Assocs., Inc., 385 Mass. 180,
183 (1982).
Conclusion. The judgment of the Superior Court is
affirmed. The abutters seek an award of appellate attorney's
fees pursuant to G. L. c. 93A, § 9 (4), which we allow. See
Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445
Mass. 411, 433 (2005). Consistent with the requirements of
Fabre v. Walton, 441 Mass. 9, 10 (2004), the abutters may file a
request for appellate attorney's fees and costs, along with
supporting documentation, within fourteen days of the issuance
of the decision in this case. The defendants shall have
fourteen days thereafter within which to respond.
Judgment affirmed.
By the Court (Henry, Hand & Brennan, JJ.17),
Clerk
Entered: November 18, 2025.
17 The panelists are listed in order of seniority.