CHARLES TAYLOR & Another v. NEW HEIGHTS BUILDERS OF MA, LLC.

• Court: Massachusetts Appeals Court
• Decided: October 2, 2025
• Docket: 24-P-0976
• Status: Unpublished

Opinion

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-976

CHARLES TAYLOR & another1

vs.

NEW HEIGHTS BUILDERS OF MA, LLC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the plaintiff homeowners, Charles

and Marcia Taylor, obtained an amended judgment under G. L.

c. 93A against the defendant, New Heights Builders of MA, in the

amount of $214,429.08. On appeal, the defendant challenges the

sufficiency of the evidence and further contends that it cannot

be liable under chapter 93A in the absence of willful and

knowing conduct. We affirm.

The defendant conceded at oral argument that it did not

raise these challenges at trial in either a motion for a

directed verdict or as an objection to jury instructions. "The

1 Marcia Taylor. means to test the sufficiency of the evidence at a civil jury

trial is by motion for directed verdict, and not, for the first

time, on appeal." McHoul, petitioner, 445 Mass. 143, 157

(2005). See Mass. R. Civ. P. 50 (a), 365 Mass. 814 (1974)

(motion for directed verdict must be made at close of evidence

offered by opponent or close of all evidence and "shall state

the specific grounds therefor"). Similarly, before challenging

a jury instruction on appeal, a party must first "clearly bring

the objection and the grounds for it to the attention of the

judge" during the trial. Rotkiewicz v. Sadowsky, 431 Mass. 748,

751 (2000). See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974)

("[n]o party may assign as error the giving or failure to give

an instruction unless he objects thereto before the jury retires

to consider its verdict, stating distinctly the matter to which

he objects and the grounds of his objection"). "The consequence

of the failure properly to object at trial is to waive the issue

on appeal." Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639

(2001). Because the defendant did not raise the present claims

during the trial as required, we do not consider them for the

first time on appeal.

We disagree with the defendant's contention that the filing

of a motion to alter or amend the judgment "adequately preserved

the basis for the appeal." Procedural rules require timely

objections not as some kind of empty formality, but as a

2 mechanism to allow trial judges to correct errors in a fair and

expeditious manner. Here, the defendant did not timely contest

the sufficiency of the evidence at issue or the jury

instructions. Indeed, counsel for the defendant expressed

agreement, as he put it, with the "standard" jury instructions

for "a pretty standard case." We recognize, however, that

complicated trials with multiple parties, claims, and defenses,

"might derail even a lawyer of competence and sophistication"

from immediately appreciating the consequences of an error,

Hatton v. Meade, 23 Mass. App. Ct. 356, 362 (1987), especially

in cases where a jury answers a series of questions on a special

verdict. To the extent the defendant contends that it was not

cognizant of an error until the jury returned the special

verdict, the rule is the same. "Where, as here, a jury returns

a special verdict, an objection that verdicts on several counts

are inconsistent with each other must be taken at the time when

the verdicts are returned and before they are recorded, so that

the trial judge has an opportunity to correct the error if there

is one." Netherwood v. American Fed'n of State, County & Mun.

Employees, Local 1725, 53 Mass. App. Ct. 11, 21 n.11 (2001).

The record before us does not indicate any timely objection to

the special verdict.

Finally, we discern no "manifest injustice" resulting from

the waived claims. Rotkiewicz, 431 Mass. at 752 n.3; Hatton, 23

3 Mass. App. Ct. at 362. This appeal is premised on the

contention that there cannot be liability under G. L. c. 93A in

the absence of a defendant's "willful and knowing" conduct. We

disagree with this contention. Although the jury here,

answering a special question, concluded that the defendant did

not engage in willful or knowing conduct, liability under G. L.

c. 93A, §§ 2 (a) and 9, does not require such proof and is

limited to four elements: "first, that the defendant has

committed an unfair or deceptive act or practice; second, that

the unfair or deceptive act or practice occurred 'in the conduct

of any trade or commerce'; third, that the plaintiff suffered an

injury; and fourth, that the defendant's unfair or deceptive

conduct was a cause of the injury" (citation omitted). Rafferty

v. Merck & Co., 479 Mass. 141, 161 (2018). If a plaintiff

additionally proves that a defendant engaged in "willful or

knowing" conduct, see G. L. c. 93A, § 9 (3), then double or

treble damages become available. The jury did not so find, and

the judge did not assess multiple damages.

4 The plaintiffs' request in their brief for attorney's fees

is denied.

Amended judgment affirmed.

By the Court (Meade, Walsh & Hodgens, JJ.2),

Clerk

Entered: October 2, 2025.

2 The panelists are listed in order of seniority.