NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
15-P-171 Appeals Court
CITY OF BEVERLY vs. BASS RIVER GOLF MANAGEMENT, INC., & another.1
No. 15-P-171.
Essex. November 14, 2016. - January 5, 2018.
Present: Sullivan, Maldonado, & Neyman, JJ.
Contract, Municipality, Performance and breach. Municipal Corporations, Contracts. Consumer Protection Act, Trade or commerce, Unfair or deceptive act. Bankruptcy, Stay of other proceedings. Practice, Civil, Directed verdict, Amendment, New trial, Instructions to jury. Judgment, Amendment.
Civil action commenced in the Superior Court Department on March 11, 2011.
The case was tried before Robert A. Cornetta, J., and a motion to alter or amend the judgment, or for a new trial, was heard by him.
Denis J. Sullivan for the defendants. Eitan Y. Goldberg, Assistant City Solicitor (Stephanie M. Williams, City Solicitor, also present) for the plaintiff.
1 31 Tozer Road, L.L.C. 2
MALDONADO, J. In this case, we consider the propriety of
actions taken by the city of Beverly (city), which owns the
Beverly Golf and Tennis Club (Golf Club), and by Bass River Golf
Management, Inc. (Bass River), which operated the facility for
almost two years pursuant to a management contract with the
city. On March 11, 2011, the city commenced an action in the
Superior Court against Bass River and 31 Tozer Road, L.L.C.
(Tozer), the guarantor of Bass River's payment obligations to
the city, asserting claims for breach of contract against each
party and seeking damages. Bass River filed counterclaims
against the city (subsequently amended) which alleged violations
of G. L. c. 93A, breach of contract, breach of an implied
covenant of good faith and fair dealing, breach of warranty, and
conversion.
Following a trial, the jury, in response to special
questions, found that Bass River had breached its management
contract with the city, that Tozer had guaranteed Bass River's
payment obligations, and that the city was entitled to damages
of $631,969.63. The jury also found that the city had violated
the covenant of good faith and fair dealing in its contractual
relationship with Bass River, and that the city had converted
Bass River's property. The jury awarded Bass River damages of
$48,967.33. Thereafter, the judge determined that Bass River
had not proved that the city violated G. L. c. 93A. 3
Bass River and Tozer filed a motion to amend the findings
of facts and rulings of law, to amend the judgment, or, in the
alternative, for a new trial. The judge amended the judgment
against Tozer to $600,000, in conformity with the language of
the guaranty. In all other respects, the motion was denied. An
amended final judgment entered on October 3, 2014, adding
interest accrued on the damages awarded by the jury, limiting
the judgment against Tozer as guarantor, and dismissing the
parties' remaining claims and counterclaims. Bass River and
Tozer appealed, contending that the judge erred in (1) denying
their motion for a directed verdict; (2) denying their motion to
amend the judgment or for a new trial; (3) refusing to give, or
improperly giving, particular jury instructions; and (4)
dismissing the counterclaim alleging violations of G. L. c. 93A.
1. Background. The jury could have found the following
facts. As of January 1, 2005, the city entered into a five-year
management contract with Johnson Golf Management, Inc. (Johnson
Golf), whereby Johnson Golf agreed to manage, control, and
operate the Golf Club, and to collect related fees from permit
holders, in exchange for paying the city $600,000 annually, plus
certain other fees. At the sole option of the city, the
contract could be extended for an additional five-year term.
The management contract provided that the city would keep
the Golf Club compliant with all Federal, State, and local laws, 4
rules, and regulations. Johnson Golf was solely responsible for
maintaining and repairing the buildings and the grounds,
including the golf course and the interior of the clubhouse,2 in
keeping with their existing condition. The city was solely
responsible for maintaining, repairing, and rebuilding the
structural components of the buildings, including the walls,
floors, roofs, and exterior facades. All work necessary to
protect lives, safety, and the structural integrity of the
buildings was to be performed first, after a review of two
reports prepared by Gale Associates, Inc. (Gale reports), an
engineering and design firm retained by the city to help it
develop a facility maintenance plan and budget. Thereafter, the
city would determine the order of its maintenance, repair, and
rebuilding projects.
Over time, the relationship between Johnson Golf and the
city deteriorated. On April 3, 2008, Johnson Golf agreed to
assign its rights, interests, and obligations under the
management contract to Bass River for $620,750, plus $50,500 for
certain equipment, tools, and fixtures. Manuel Barros was the
sole owner of Bass River. Prior to entering into the
assignment, he toured the Golf Club and was familiar with the
2 Because the clubhouse was on the State register of historic places, all interior maintenance had to be done in accordance with the rules and regulations of the Massachusetts Historical Commission. 5
condition of its clubhouse, including the fact that the second
floor, where a large function room was located, was not
accessible to persons with disabilities.
To induce the city to execute the assignment with Bass
River, Tozer provided a written guaranty to the city. It
unconditionally guaranteed full and punctual payment "of all
sums which may be presently due and owing and of all sums which
shall in the future become due and owing to the City from Bass
River." Among other matters, Tozer also agreed that its
liability was "the lesser of $600,000.00 or such sums as may,
from time to time, be due to the City by Bass River under the
Management Contract." The guaranty was signed by Barros, as
manager of Tozer.
Once Bass River started operating the Golf Club, it made
numerous improvements to the facility in an effort to increase
the number of permit holders. In September, 2008, the city's
mayor sought, and the city council approved, a $1.5 million bond
to pay for capital improvements to the golf course, the
clubhouse, and a maintenance building that needed environmental
remediation. Architectural and engineering work was initiated,
and repairs were undertaken. During the time that Bass River
was managing the Golf Club, the city spent approximately
$130,000 on various repairs and improvements. 6
By late 2009, Bass River had fallen significantly behind in
its payments to the city under the management contract, by then
owing the city over $600,000. The mayor decided not to extend
the contract with Bass River for an additional five-year term,
choosing instead to hire a new manager for the Golf Club.3 When
Bass River failed to pay its arrearage, the present action
ensued.
2. Suggestion of bankruptcy. On November 10, 2016, Tozer
filed a voluntary petition for bankruptcy under Chapter 11 of
the United States Bankruptcy Code. Tozer then filed a
suggestion of bankruptcy with this court, requesting that the
present appeal be stayed.4 We ordered the parties to submit
supplemental briefs addressing the matter. In their
supplemental briefs, both parties contend that this appeal
should be stayed as to Tozer, but not as to Bass River. We
agree.
The filing of a voluntary bankruptcy petition operates as
an automatic stay of "the commencement or continuation . . . of
a judicial, administrative, or other action or proceeding
against the debtor that was or could have been commenced before
3 During the tenure of the new manager, lifts were installed in the clubhouse to facilitate access to the second floor by persons with disabilities. 4 By agreement dated November 10, 2016, the city sold, assigned, and transferred all of its claims and interests against Tozer to Bass River Tennis Corporation for $375,000. 7
the commencement of the [bankruptcy] case."5 11 U.S.C.
§ 362(a)(1) (2012). Section 362 "should be read to stay all
appeals in proceedings that were originally brought against the
debtor, regardless of whether the debtor is the appellant or
appellee." Association of St. Croix Condominium Owners v. St.
Croix Hotel Corp., 682 F.2d 446, 449 (3d Cir. 1982). The
purpose of the automatic stay is "to relieve a debtor of
collection proceedings which would nullify the Bankruptcy Code's
objective of orderly liquidations or reorganizations which treat
creditors equally." Marine Midland Bank v. Herriott, 10 Mass.
App. Ct. 743, 746 (1980). It is well settled that "proceedings
in violation of the stay are void." Amonte v. Amonte, 17 Mass.
App. Ct. 621, 624 (1984).
The automatic stay provisions of the Bankruptcy Code only
apply to a "proceeding against the [petitioning] debtor," not
against others. 11 U.S.C. § 362(a)(1). See In re Two Appeals
Arising Out of the San Juan Dupont Plaza Hotel Fire Litigation,
994 F.2d 956, 969 (1st Cir. 1993). "Thus the stay provisions
have been held not to apply to proceedings against a codefendant
of the debtor, . . . against individual partners of the debtor,
. . . or against the guarantors of its debts." Allegheny Intl.
5 We have concurrent jurisdiction with the Bankruptcy Court to determine the applicability of the automatic stay provisions of the Bankruptcy Code. See Lombardo v. Gerard, 32 Mass. App. Ct. 589, 593-594 (1992). 8
Credit Corp. v. Bio-Energy of Lincoln, Inc., 21 Mass. App. Ct.
155, 158 (1985). See In re Furlong, 660 F.3d 81, 89-90 (1st
Cir. 2011) (automatic stay does not extend to assets of
corporation in which debtor has interest, even where interest is
100 percent of stock).
The present appeal is a continuation of the judicial action
against Bass River and Tozer that was commenced by the city
prior to Tozer's initiation of bankruptcy proceedings. The
parties assert, and we agree, that none of the exceptions to the
automatic stay provisions, set forth in 11 U.S.C. § 362(b)(1)-
(28) (2012), is applicable in this case. We also agree with the
parties that, because the automatic stay provisions of the
Bankruptcy Code only apply to Tozer, Bass River's appeal should
proceed. Tozer's appeal is hereby stayed, and we turn to the
merits of Bass River's arguments.
3. Motion for directed verdict. Bass River contends that
the judge erred in denying its motion for a directed verdict at
the close of the city's evidence. Bass River argues that the
city failed to show that it satisfied its obligation under the
management contract to ensure that the Golf Club was in
compliance with all Federal, State, and local laws, rules, and
regulations, particularly the regulations of the Architectural
Access Board (AAB), which are designed to make public buildings
accessible to and safe for persons with disabilities. See 521 9
Code Mass. Regs. § 2.1 (2006). Given that the second floor of
the clubhouse was only accessible by stairs during Bass River's
tenure as manager of the Golf Club, Bass River claims that the
city was in material breach of the management contract which, in
turn, excused Bass River's performance under the contract.
Therefore, Bass River asserts, the judge should have granted its
motion for a directed verdict with respect to the city's breach
of contract claim. We disagree.
An appellate court reviews the denial of a motion for a
directed verdict under the same standard applied by the trial
judge. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007). We
must "construe the evidence in the light most favorable to the
nonmoving party and disregard that favorable to the moving
party." Ibid. "Our duty in this regard is to evaluate whether
'anywhere in the evidence, from whatever source derived, any
combination of circumstances could be found from which a
reasonable inference could be made in favor of the
[nonmovant].'" Ibid., quoting from Turnpike Motors, Inc. v.
Newbury Group, Inc., 413 Mass. 119, 121 (1992). A motion for a
directed verdict made at the close of the plaintiff's case will
not survive if the defendant does not renew its motion at the
close of all of the evidence. See Martin v. Hall, 369 Mass.
882, 884 (1976); King v. G & M Realty Corp., 373 Mass. 658, 659
n.3 (1977). 10
As a preliminary matter, the city argues that Bass River
has waived its right to seek appellate review of the denial of
its motion for a directed verdict because it did not renew such
motion at the close of all the evidence. We agree.
Notwithstanding the fact that several relevant portions of the
transcript are largely inaudible, there is nothing to suggest
that Bass River renewed its motion for a directed verdict at the
conclusion of the presentation of its own evidence, or that it
attempted to reconstruct the transcript to reflect the fact that
this motion had been made.6 By failing to take such action, Bass
River waived its right to appeal from the denial of its motion.
See Dalrymple v. Winthrop, 50 Mass. App. Ct. 611, 619 (2000).
Even if that were not the case, we are satisfied that the
city presented sufficient evidence from which the jury could
reasonably conclude that Bass River breached the management
contract. See Singarella v. Boston, 342 Mass. 385, 387 (1961)
(articulating essential elements of breach of contract claim).
As pertinent here, the jury could have found that, by late 2009,
Bass River had not made all of its required payments under the
contract, owing the city over $600,000. The jury also could
have found that Bass River's failure to pay was not excused by
an alleged material breach of the management contract by the
6 In its reply brief, Bass River does not address this waiver issue. 11
city, namely, its noncompliance with AAB regulations. See
Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010)
(material breach of contract by one party excuses performance by
other party as matter of law, but whether material breach has
occurred is question of fact).
Construing the evidence in the light most favorable to the
city, the jury could have determined that the city did not
materially breach the management contract.7 The jury could have
found that, prior to entering into the assignment, Bass River
was aware of the accessibility issue regarding the second floor
of the clubhouse, and had been told by the city's finance
director that the city did not have the monetary resources to
undertake construction work to provide accessibility for persons
with disabilities, but that the city would and did provide a
mechanical device for transporting disabled persons to the
second floor until completion of all repairs mandated by the
management contract. The jury also could have found that the
management contract did not specify a time frame for the
completion of improvements to the Golf Club, and that the
contract authorized the city to determine "the order of
7 In his final charge, the judge instructed the jury that Bass River "may be excused from making payments to the City if the City was in material breach of the [parties'] contract," and that "[a] material breach of an agreement occurs when there is a breach of an essential and inducing feature of the contract." See Lease-It, Inc. v. Massachusetts Port Authy., 33 Mass. App. Ct. 391, 396-397 (1992). 12
maintenance, repair, and rebuilding of the structural components
of all buildings."
In addition, the jury could have found that there was
insufficient evidence to support Bass River's claim that it
suffered financial harm as a consequence of the accessibility
issue. Finally, the jury could have found that, during Bass
River's tenure as manager, it never filed any complaints with
the AAB alleging that the city, as owner of the Golf Club, had
failed to comply with the regulations governing accessibility
for persons with disabilities. See 521 Code Mass. Regs. § 2.3.1
(2006). Bass River filed a complaint only after the city
declined to renew its management contract for an additional
five-year term. We conclude, therefore, that the judge did not
err in denying Bass River's motion for a directed verdict with
respect to the city's breach of contract claim.8
4. Motion to amend the judgment or for a new trial. Bass
River argues that the judge erred in denying its motion to amend
the judgment, or, in the alternative, for a new trial. In Bass
River's view, the jury's verdict in favor of the city on its
breach of contract claim was against the weight of the evidence,
8 In reaching this decision, we do not intend to minimize the importance of compliance with AAB regulations but, rather, confine ourselves to the sole issue whether Bass River can escape liability on the basis of the city's noncompliance with those regulations, where it was fully aware of the city's noncompliance when it contracted with the city. 13
and therefore, judgment should have entered for Bass River.
Alternatively, Bass River contends that the judge erred in
denying its motion for a new trial because the verdict for the
city suggested that the jury misunderstood the principle of
contract law that a material breach by one party excuses
performance by the other party.
A trial judge should set aside a jury verdict in a civil
case only if the judge concludes that "the verdict is so
markedly against the weight of the evidence as to suggest that
the jurors allowed themselves to be misled, were swept away by
bias or prejudice, or for a combination of reasons, including
misunderstanding of applicable law, failed to come to a
reasonable conclusion." W. Oliver Tripp Co. v. American Hoechst
Corp., 34 Mass. App. Ct. 744, 748 (1993). This determination
rests in the sound discretion of the judge. See ibid. We give
considerable deference to the rulings of a motion judge who also
served as the trial judge in a case. See Gath v. M/A-Com, Inc.,
440 Mass. 482, 492 (2003).
Here, we conclude that the judge did not abuse his
discretion in denying Bass River's motion to amend the judgment
or for a new trial. As previously discussed, the jury
reasonably could have found that the city did not materially
breach the management contract such that Bass River, in turn,
was excused from satisfying its payment obligations. The judge 14
properly determined that the jury's verdict was not against the
weight of the evidence and did not suggest a misapprehension of
contract law principles.
5. Jury instructions. Bass River contends that the judge
erred in two respects with regard to his jury instructions,
thereby causing prejudice. First, Bass River argues that, over
its objection, the judge refused to instruct the jury that Bass
River could recover out-of-pocket losses incurred as a
consequence of its reliance on the city's representations that
the clubhouse would be made accessible to persons with
disabilities. Second, Bass River argues that, over its
objection, the judge improperly instructed the jury that if they
found that the city had conferred a benefit on Bass River under
the management contract, then the city was entitled to
reimbursement for such benefit, irrespective of any breach of
the contract by the city. Given these purported instructional
errors, Bass River claims that it was entitled to a new trial on
its counterclaims against the city. We disagree.
"A judge should instruct the jury fairly, clearly,
adequately, and correctly concerning principles that ought to
guide and control their action." Selmark Assocs., Inc. v.
Ehrlich, 467 Mass. 525, 547 (2014), quoting from Mahoney v.
Gooch, 246 Mass. 567, 571 (1923). "We review objections to jury
instructions to determine if there was any error, and, if so, 15
whether the error affected the substantial rights of the
objecting party." Hopkins v. Medeiros, 48 Mass. App. Ct. 600,
611 (2000). "An error in jury instructions is not grounds for
setting aside a verdict unless the error was prejudicial -- that
is, unless the result might have differed absent the error."
Blackstone v. Cashman, 448 Mass. 255, 270 (2007). A trial judge
has broad discretion in framing the language that is used in
jury instructions. See Kiely v. Teradyne, Inc., 85 Mass. App.
Ct. 431, 441 (2014). An appellate court must review the charge
as a whole "to determine whether it is a clear and accurate
statement of the law." Wilson v. Boston Redev. Authy., 366
Mass. 588, 591 (1975).
Contrary to Bass River's argument that the judge failed to
instruct the jury on damages for out-of-pocket losses, the judge
did, in fact, instruct on compensatory damages.9 This
instruction apprised the jury that where one party was found to
have engaged in wrongful conduct, the other party was entitled
to recover all the damages that it had suffered, thereby
restoring the status quo, as if the transaction had never
occurred. Cf. VMark Software, Inc. v. EMC Corp., 37 Mass. App.
Ct. 610, 619 (1994). We see no error.
9 The judge instructed the jury, in part, as follows: "The purpose of the law in awarding damages is to compensate an injured party for the loss incurred because of another's breach of conduct. The object is to try to restore the party to the position that it would have been in had the wrong not occurred." 16
With regard to the judge's instruction that the city was
entitled to reimbursement for benefits conferred on Bass River,
irrespective of any breach of the management contract by the
city, we must view this statement in the context of the
instruction as a whole. The judge properly instructed the jury
that if they found that the city was in material breach of the
contract, then they could determine that Bass River was excused
from making payments to the city. See Prozinski v. Northeast
Real Estate Servs., LLC, 59 Mass. App. Ct. 599, 610 (2003). The
judge also properly instructed the jury that, absent a material
breach by the city, the jury could award the city damages for
payments owed by Bass River under the contract. The judge's
subsequent instruction that, "[i]n either case" (emphasis
added), if the jury found that the city had conferred a benefit
on Bass River, then the city was entitled to reimbursement for
the value of such benefit conferred, was erroneous to the extent
that the jury determined that the city had materially breached
the management contract. Here, however, the jury made no such
determination, finding instead that the city did not breach the
contract. Accordingly, we conclude that, even if this one
statement by the judge was erroneous, Bass River was not
prejudiced.
6. Counterclaim under G. L. c. 93A. Finally, Bass River
argues that the judge erred in dismissing its counterclaim 17
pursuant to G. L. c. 93A, § 11. In Bass River's view, the judge
incorrectly determined that the city was not engaged in "trade
or commerce" when dealing with Bass River and, further, that
even if the city was so engaged, the city's conduct was not
unfair or deceptive within the meaning of the statute.
When reviewing the judge's decision, we accept his findings
of fact unless they are clearly erroneous, and we consider his
conclusions of law de novo. See Anastos v. Sable, 443 Mass.
146, 149 (2004). "A ruling that conduct violates G. L. c. 93A
is a legal, not a factual, determination." R.W. Granger & Sons,
Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73 (2001).
General Laws c. 93A is designed "to encourage more
equitable behavior in the marketplace . . . [and to impose]
liability on persons seeking to profit from unfair practices."
Poznik v. Massachusetts Med. Professional Ins. Assn., 417 Mass.
48, 53 (1994). Whether a claim under c. 93A can be brought
against a municipality is an unresolved issue. See Park Drive
Towing, Inc. v. Revere, 442 Mass. 80, 86 (2004) (Park Drive
Towing); M. O'Connor Contracting, Inc. v. Brockton, 61 Mass.
App. Ct. 278, 284 n.8 (2004). Nonetheless, it is settled that
"a municipality is not liable under G. L. c. 93A when it is not
'acting in a business context,' that is, when it is not engaged
in 'trade or commerce.'" Park Drive Towing, supra, quoting from
All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of 18
Boston, 416 Mass. 269, 271 (1993). "Whether a municipality is
acting in a business context depends on 'the nature of the
transaction, the character of the parties involved and [their]
activities . . . and whether the transaction [was] motivated by
business . . . reasons.'" Park Drive Towing, supra, quoting
from Boston Hous. Authy. v. Howard, 427 Mass. 537, 538 (1998).
Courts also consider whether a municipality's actions are
incidental to a primary governmental function, and whether the
municipality seeks to profit from its actions. See Peabody
N.E., Inc. v. Marshfield, 426 Mass. 436, 439-440 (1998);
Lafayette Place Assocs. v. Boston Redev. Authy., 427 Mass. 509,
535-536 (1998), cert. denied, 525 U.S. 1177 (1999).
We need not resolve the issue of whether the city was
acting in a business context for purposes of G. L. c. 93A by
owning the Golf Club, overseeing its management by Bass River,
and collecting annual fees. Even if we were to decide that the
city was engaged in trade or commerce, we nonetheless conclude
that, in this case, the city's dealings with Bass River did not
constitute unfair or deceptive acts under the statute as a
matter of law.
To prevail on its c. 93A claim, Bass River was required to
show that the city engaged in "[u]nfair methods of competition"
or "unfair or deceptive acts or practices." G. L. c. 93A, § 2,
as amended by St. 1978, c. 459, § 2. When considering whether 19
an act or practice is unfair, we assess "(1) whether the
practice . . . is within at least the penumbra of some common-
law, statutory, or other established concept of unfairness; (2)
whether it is immoral, unethical, oppressive, or unscrupulous;
[and] (3) whether it causes substantial injury to consumers (or
competitors or other business[people])." PMP Assocs., Inc. v.
Globe Newspaper Co., 366 Mass. 593, 596 (1975), quoting from 29
Fed. Reg. 8325, 8355 (1964). Practices may be deemed deceptive
where they "could reasonably be found to have caused a person to
act differently from the way he otherwise would have acted."
Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 51 (1979).
Conduct is deceptive when it tends to mislead. See Aspinall v.
Philip Morris Cos., 442 Mass. 381, 396 (2004).
Appellate courts have consistently held that a mere breach
of contract, without more, does not amount to a violation of
G. L. c. 93A. See Whitinsville Plaza, Inc. v. Kotseas, 378
Mass. 85, 100-101 (1979); Madan v. Royal Indem. Co., 26 Mass.
App. Ct. 756, 762 (1989). However, "conduct '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." Anthony's Pier Four, Inc. v. HBC Assocs.,
411 Mass. 451, 474 (1991), quoting from Wang Labs., Inc. v.
Business Incentives, Inc., 398 Mass. 854, 857 (1986). "Courts
must consider whether the nature, purpose, and effect of the 20
challenged conduct is coercive or extortionate." Diamond
Crystal Brands, Inc. v. Backleaf, LLC, 60 Mass. App. Ct. 502,
507 (2004). See Zabin v. Picciotto, 73 Mass. App. Ct. 141, 169
(2008).
Here, based on the evidence presented at trial, the judge
stated that Bass River was aware of the physical condition of
the clubhouse, including the fact that the second floor was not
accessible to persons with disabilities, when it entered into
the assignment of the management contract. The judge further
stated that no legally authorized agent for the city had made
binding representations concerning a specific time frame for the
completion of renovations to the clubhouse, and the management
contract was silent on the matter. In addition, the judge
stated that, although financial constraints precluded the city
from immediately performing all of the repairs and improvements
contemplated by the management contract and the Gale reports,
the city did undertake such projects as municipal finances
permitted. On that basis, we cannot say that the city's
dealings with Bass River rose to the level of unscrupulous,
coercive, or "[i]ntentionally gainful misconduct" that is
characteristic of wrongdoing under G. L. c. 93A. McGonagle v.
Home Depot U.S.A., Inc., 75 Mass. App. Ct. 593, 600 n.9 (2009).
Accordingly, we conclude that the judge did not err in
dismissing Bass River's c. 93A counterclaim. 21
7. Conclusion. The appeal filed by Tozer is hereby stayed
until such time as the automatic stay in the bankruptcy case
terminates in accordance with 11 U.S.C. § 362(c) (2012). The
judgment entered on October 3, 2014, is otherwise affirmed.
So ordered.