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
23-P-1188
GREEN PARADISE SERVICES, LLC & another1
vs.
HATCH LANDSCAPE & DESIGN, INC.2 & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A general contractor, Hatch Landscape & Design (Hatch),
hired a subcontractor, Green Paradise Services (Green Paradise),
to clear snow and ice at various businesses. Although Green
Paradise performed its contractual obligations throughout the
winter season, Hatch paid it only a fraction of what it was
owed. After Hatch ignored repeated requests for payment, as
well as a G. L. c. 93A demand letter, Green Paradise filed suit.
Following a trial in the Superior Court, the jury found Hatch
1 Bruno Amaral did not participate in this appeal.
2 Formerly known as The Hatch Group, Inc.
3Jared Hatch and Robert Hatch did not participate in this appeal. liable for breaching the contract and violating G. L. c. 93A,
§ 11, and the judge subsequently awarded Green Paradise
attorney's fees and costs under c. 93A, § 11. On appeal, Hatch
does not challenge the jury's verdict as to the contract claim,
but argues that because the evidence was insufficient to
establish its liability under c. 93A, § 11, its motions for a
directed verdict and judgment notwithstanding the verdict should
have been allowed as to that claim. We agree and, accordingly,
reverse so much of the corrected judgment as awards Green
Paradise double damages, attorney's fees, and costs under
c. 93A.
Background. In summarizing the facts that the jury could
have found at trial, we draw all reasonable inferences in favor
of the plaintiff, Green Paradise. See Haddad v. Wal-Mart
Stores, Inc., 455 Mass. 91, 94 & n.5 (2009).
Hatch and Green Paradise entered into a contract in
November 2018. Under its terms, Green Paradise would perform
plowing and deicing services for some of Hatch's customers
during the 2018-2019 winter, Hatch would be invoiced, and Hatch
would pay Green Paradise within forty-five days of each invoice.
Green Paradise invoiced Hatch for services provided at twelve
locations throughout the winter. Although Hatch paid Green
Paradise $9,415 in response to some invoices issued at the start
of the season, it did not pay $90,717 on the remaining invoices.
2 Bruno Amaral, Green Paradise's owner, testified that he
repeatedly contacted Hatch's office by e-mail and phone seeking
full payment of the remaining invoices, but was told that only
Jared Hatch, Hatch's owner, could approve payment to Green
Paradise and that he had not done so. Amaral further testified
that neither Hatch nor its customers ever complained about Green
Paradise's performance or the quality of its services.
In his testimony, Jared Hatch confirmed that Hatch had been
fully paid by its customers and that none of the customers had
complained about Green Paradise's work. He maintained that
Green Paradise breached its contractual obligation because it
did not use a global positioning system (GPS) tracking device or
a mobile application while performing its services, and he
suggested that Green Paradise overbilled for its time and
services on various jobs. He conceded, however, that he never
brought those concerns to Green Paradise's attention, and he had
no records showing that any other Hatch employee did either.4
At the close of evidence, Hatch moved for a directed
verdict, which the judge denied. Answering a special verdict
form, the jury found that Green Paradise substantially performed
4 Amaral testified that Hatch never provided GPS devices to Green Paradise, despite multiple requests for them, and a former Hatch employee testified that some subcontractors did not receive the devices because they did not work properly.
3 its obligations under the contract, and that Hatch breached the
contract and also committed an unfair or deceptive act or
practice in violation of c. 93A, § 11. The jury awarded Green
Paradise $80,000 in contract damages and awarded double damages
for the c. 93A violation. Hatch then moved for judgment
notwithstanding the verdict, which was also denied. In a
separate decision and order, the judge granted Green Paradise's
request for reasonable attorney's fees and costs under c. 93A,
§ 11. A corrected judgment ultimately issued awarding Green
Paradise $80,000 in contract damages; $80,000 in double damages
under c. 93A, § 11; $72,434 in attorney's fees and costs; and
interest.
Discussion. "When reviewing the denial of a motion for
directed verdict or judgment notwithstanding the verdict, we
apply the same standard as the trial judge." Parsons v. Ameri,
97 Mass. App. Ct. 96, 105 (2020). We "construe the evidence in
the light most favorable to the nonmoving party and disregard
that favorable to the moving party." O'Brien v. Pearson, 449
Mass. 377, 383 (2007). "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].'" Id., quoting Turnpike Motors, Inc. v. Newbury
Group, Inc., 413 Mass. 119, 121 (1992).
4 On appeal, Hatch does not dispute that it breached the
contract by failing to fully pay Green Paradise for the services
it performed. Hatch also violated the provision in the contract
that required it to pay invoices within forty-five days and
prohibited it from withholding payment for longer than sixty
days "unless there is a dispute over [a] specific invoice." The
only question is whether Hatch's conduct also amounted to a
violation of G. L. c. 93A, § 11. In determining whether a
defendant engaged in unfair or deceptive conduct in violation of
c. 93A, § 11, we avoid "uninstructive phrases" such as "level of
rascality" and "rancid flavor of unfairness," and instead "focus
on the nature of challenged conduct and on the purpose and
effect of that conduct" (quotations omitted). Massachusetts
Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 43
(1995).
It is well established that "a breach of contract, even if
intentional, does not in itself amount to an unfair act or
practice under G. L. c. 93A, § 11." H1 Lincoln, Inc. v. South
Washington St., LLC, 489 Mass. 1, 20 n.13 (2022). See Pepsi-
Cola Metro. Bottling Co. v. Checkers, Inc., 754 F.2d 10, 18 (1st
Cir. 1985), citing Whitinsville Plaza, Inc. v.
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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
23-P-1188
GREEN PARADISE SERVICES, LLC & another1
vs.
HATCH LANDSCAPE & DESIGN, INC.2 & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A general contractor, Hatch Landscape & Design (Hatch),
hired a subcontractor, Green Paradise Services (Green Paradise),
to clear snow and ice at various businesses. Although Green
Paradise performed its contractual obligations throughout the
winter season, Hatch paid it only a fraction of what it was
owed. After Hatch ignored repeated requests for payment, as
well as a G. L. c. 93A demand letter, Green Paradise filed suit.
Following a trial in the Superior Court, the jury found Hatch
1 Bruno Amaral did not participate in this appeal.
2 Formerly known as The Hatch Group, Inc.
3Jared Hatch and Robert Hatch did not participate in this appeal. liable for breaching the contract and violating G. L. c. 93A,
§ 11, and the judge subsequently awarded Green Paradise
attorney's fees and costs under c. 93A, § 11. On appeal, Hatch
does not challenge the jury's verdict as to the contract claim,
but argues that because the evidence was insufficient to
establish its liability under c. 93A, § 11, its motions for a
directed verdict and judgment notwithstanding the verdict should
have been allowed as to that claim. We agree and, accordingly,
reverse so much of the corrected judgment as awards Green
Paradise double damages, attorney's fees, and costs under
c. 93A.
Background. In summarizing the facts that the jury could
have found at trial, we draw all reasonable inferences in favor
of the plaintiff, Green Paradise. See Haddad v. Wal-Mart
Stores, Inc., 455 Mass. 91, 94 & n.5 (2009).
Hatch and Green Paradise entered into a contract in
November 2018. Under its terms, Green Paradise would perform
plowing and deicing services for some of Hatch's customers
during the 2018-2019 winter, Hatch would be invoiced, and Hatch
would pay Green Paradise within forty-five days of each invoice.
Green Paradise invoiced Hatch for services provided at twelve
locations throughout the winter. Although Hatch paid Green
Paradise $9,415 in response to some invoices issued at the start
of the season, it did not pay $90,717 on the remaining invoices.
2 Bruno Amaral, Green Paradise's owner, testified that he
repeatedly contacted Hatch's office by e-mail and phone seeking
full payment of the remaining invoices, but was told that only
Jared Hatch, Hatch's owner, could approve payment to Green
Paradise and that he had not done so. Amaral further testified
that neither Hatch nor its customers ever complained about Green
Paradise's performance or the quality of its services.
In his testimony, Jared Hatch confirmed that Hatch had been
fully paid by its customers and that none of the customers had
complained about Green Paradise's work. He maintained that
Green Paradise breached its contractual obligation because it
did not use a global positioning system (GPS) tracking device or
a mobile application while performing its services, and he
suggested that Green Paradise overbilled for its time and
services on various jobs. He conceded, however, that he never
brought those concerns to Green Paradise's attention, and he had
no records showing that any other Hatch employee did either.4
At the close of evidence, Hatch moved for a directed
verdict, which the judge denied. Answering a special verdict
form, the jury found that Green Paradise substantially performed
4 Amaral testified that Hatch never provided GPS devices to Green Paradise, despite multiple requests for them, and a former Hatch employee testified that some subcontractors did not receive the devices because they did not work properly.
3 its obligations under the contract, and that Hatch breached the
contract and also committed an unfair or deceptive act or
practice in violation of c. 93A, § 11. The jury awarded Green
Paradise $80,000 in contract damages and awarded double damages
for the c. 93A violation. Hatch then moved for judgment
notwithstanding the verdict, which was also denied. In a
separate decision and order, the judge granted Green Paradise's
request for reasonable attorney's fees and costs under c. 93A,
§ 11. A corrected judgment ultimately issued awarding Green
Paradise $80,000 in contract damages; $80,000 in double damages
under c. 93A, § 11; $72,434 in attorney's fees and costs; and
interest.
Discussion. "When reviewing the denial of a motion for
directed verdict or judgment notwithstanding the verdict, we
apply the same standard as the trial judge." Parsons v. Ameri,
97 Mass. App. Ct. 96, 105 (2020). We "construe the evidence in
the light most favorable to the nonmoving party and disregard
that favorable to the moving party." O'Brien v. Pearson, 449
Mass. 377, 383 (2007). "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].'" Id., quoting Turnpike Motors, Inc. v. Newbury
Group, Inc., 413 Mass. 119, 121 (1992).
4 On appeal, Hatch does not dispute that it breached the
contract by failing to fully pay Green Paradise for the services
it performed. Hatch also violated the provision in the contract
that required it to pay invoices within forty-five days and
prohibited it from withholding payment for longer than sixty
days "unless there is a dispute over [a] specific invoice." The
only question is whether Hatch's conduct also amounted to a
violation of G. L. c. 93A, § 11. In determining whether a
defendant engaged in unfair or deceptive conduct in violation of
c. 93A, § 11, we avoid "uninstructive phrases" such as "level of
rascality" and "rancid flavor of unfairness," and instead "focus
on the nature of challenged conduct and on the purpose and
effect of that conduct" (quotations omitted). Massachusetts
Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 43
(1995).
It is well established that "a breach of contract, even if
intentional, does not in itself amount to an unfair act or
practice under G. L. c. 93A, § 11." H1 Lincoln, Inc. v. South
Washington St., LLC, 489 Mass. 1, 20 n.13 (2022). See Pepsi-
Cola Metro. Bottling Co. v. Checkers, Inc., 754 F.2d 10, 18 (1st
Cir. 1985), citing Whitinsville Plaza, Inc. v. Kotseas, 378
Mass. 85, 100-101 (1979) ("mere breaches of contract, without
more, do not violate chapter 93A"). Rather, an "additional
factor" is needed to establish liability under c. 93A. H1
5 Lincoln, 489 Mass. at 17 n.12, quoting Atkinson v. Rosenthal, 33
Mass. App. Ct. 219, 226 (1992).
A c. 93A claim may arise from a breach of contract if the
breach is "in disregard of known contractual arrangements" and
intended "to secure benefits for the breaching party."
Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 474
(1991) (quotation omitted). For example, a party may violate
c. 93A if it uses "breaches of contract, or threatened breaches,
as leverage to extract additional benefits not covered by the
contract." H1 Lincoln, 489 Mass. at 15. In H1 Lincoln, a
landlord violated c. 93A by intentionally breaking the terms of
the lease in an attempt to force the lessee to sell a different
property to the landlord for one dollar. Id. at 7-8, 17. In
other cases, liability under c. 93A was found where the
defendant withheld performance without justification in an
attempt to renegotiate the terms of the parties' relationship.
See Anthony's Pier Four, 411 Mass. at 461-462, 474-476
(withholding of architectural approval in order to extort
renegotiation of financial terms of joint development project
found to violate c. 93A); Pepsi-Cola, 754 F.2d at 17-19
(customer withheld payment to distributor as leverage in
bargaining to receive more product in future).
In this case, there is no evidence that Hatch withheld
payment to force Green Paradise "to do what otherwise it could
6 not be legally required to do." Pepsi-Cola, 754 F.2d at 18.
Hatch did not attempt to extort Green Paradise into providing
additional benefits not covered by the parties' contract. Nor
did Hatch attempt to renegotiate the terms of their contractual
relationship. Green Paradise argues that Hatch's refusal to pay
was an attempt to pressure it into accepting "cents on the
dollar for its work." The record is devoid of evidence,
however, that Hatch had sought to impose "new and adverse
contract terms," such as a lower rate of payment for Green
Paradise's work. See H1 Lincoln, 489 Mass. at 16, citing Full
Spectrum Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d
666, 674 (1st Cir. 2017). See also Community Bldrs., Inc. v.
Indian Motorcycle Assocs., Inc., 44 Mass. App. Ct. 537, 557-559
(1998). To the contrary, despite repeated inquiries from Green
Paradise, Hatch did not provide any explanation regarding its
refusal to pay the remaining invoices.5 An intent "to extract
additional benefits not covered by the contract" cannot be
reasonably inferred where the defendant did nothing more than
breach a contract and refuse to say why. H1 Lincoln, supra at
15.
5Because Hatch did not offer evidence that it notified Green Paradise about its purported overbilling or any other issue involving its performance, we reject Hatch's argument that it should not have been held liable under c. 93A, § 11, due to "a legitimate dispute over the value of [Green Paradise's] services."
7 Nor can c. 93A liability be inferred from the fact that
Hatch paid Green Paradise for its services at the start of the
winter season. Green Paradise argues that the jury could have
reasonably inferred that "those initial payments constituted a
ploy to induce Green to continue to plow that winter," and
Amaral testified that he stopped pursuing work from other
potential customers after entering into the contract with Hatch.
To establish a c. 93A claim, however, a party's extortionate
conduct must arise from its breach or threatened breach of a
contract, not from its initial compliance with the contract.
See H1 Lincoln, 489 Mass. at 15.
To be sure, the evidence at trial established that Hatch's
violation of its contractual obligations was knowing,
unjustified, and harmful to Green Paradise. As the judge
observed in denying Hatch's motion for judgment notwithstanding
the verdict, Hatch was "paid substantially more than the
plaintiff billed for those jobs, yet . . . retained the full
payment without paying the plaintiff for [its] work," and it
withheld payment without informing Green Paradise "of any
discrepancy or other reason why." Nevertheless, those actions,
however unseemly, do not rise "to the level of 'commercial
extortion' or a similar degree of culpable conduct" required for
a c. 93A violation (quotation omitted). Zabin v. Picciotto, 73
Mass. App. Ct. 141, 169 (2008).
8 Because, even when all reasonable inferences are drawn in
Green Paradise's favor, the evidence was insufficient to
establish a violation of c. 93A, § 11, the jury's verdict and
award of double damages on that claim must be reversed.
Furthermore, because the judge based her award of attorney's
fees and costs to Green Paradise on the jury's finding that
Hatch committed an unfair or deceptive act or practice in
violation of c. 93A, § 11, that award must also be reversed.
Conclusion. So much of the corrected judgment as awarded
double damages, attorney's fees, and costs under the plaintiffs'
c. 93A claim is reversed. The corrected judgment is modified to
dismiss the plaintiffs' c. 93A claim, and, as so modified, the
corrected judgment is affirmed.
So ordered.
By the Court (Meade, Hershfang & Toone, JJ.6),
Clerk
Entered: October 10, 2024.
6 The panelists are listed in order of seniority.