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
22-P-14
KEHN FINE HOME BUILDING, INC.
vs.
SHANMUGAM MUTHIAN; MICHAEL KEHN, third-party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2016, defendant Shanmugam Muthian hired the plaintiff,
Kehn Fine Home Building, Inc. (KFHB), to undertake a major
renovation project at his home in Marblehead. After the project
was substantially but not totally completed, Muthian refused to
pay KFHB for a large outstanding invoice and fired the company.
KFHB brought the current collection action alleging breach of
contract and related theories. Muthian counterclaimed and
brought a third-party action against Kehn's principal, Michael
Kehn (Kehn). After a nine-day jury-waived trial, a Superior
Court judge ruled largely in favor of KFHB and Kehn
(collectively, the Kehn parties), explaining his decision in
comprehensive findings and rulings. On July 12, 2021, two
judgments entered that had the net effect of requiring that
Muthian pay the Kehn parties approximately $100,000 in damages (including prejudgment interest). On August 18, 2021, another
judgment entered awarding attorney's fees to Muthian.1 After the
judge denied motions for reconsideration filed by each side,2
Muthian appealed, and the Kehn parties filed a limited cross
1 On July 12, 2021, the judge entered final judgment on KFHB's claims, which required Muthian to pay KFHB $111,397.44 in damages ($90,544.53 in contractual damages, which included prejudgment interest from the date of the breach until the judgment at the contractual rate of eighteen percent per year, and $20,852.91 in quantum meruit damages, which included prejudgment interest from the date of the complaint until the judgment at the statutory rate of twelve percent per year). That same day, the judge entered a separate final judgment on Muthian's counterclaims and third-party claims that required KFHB to pay $11,376.45 in damages (including prejudgment interest), with Kehn jointly and severally liable to pay $2,687.74 of those damages (including prejudgment interest). A third final judgment entered on August 18, 2021, requiring that the Kehn parties pay Muthian $2,500 in attorney's fees (strictly speaking, the third judgment, is phrased as awarding attorney's fees to the "plaintiff," although from the context it appears the judge intended the award in favor of Muthian, who is the plaintiff-in-counterclaim/third-party claim). The parties make no argument about the third judgment on appeal. The issuance of three separate judgments added unnecessary confusion to this case. See Pantazis v. Mack Trucks, Inc., 92 Mass. App. Ct. 477, 478 n.4 (2017) ("We repeat our admonition that, unless [Mass. R. Civ. P. 54 (b)] is expressly invoked, there should never be more than one document identified as a final judgment in a civil case").
2 On July 30, 2021, each side filed a motion for reconsideration. The judge denied them on August 10, 2021. Meanwhile, Muthian had served, but not yet filed, what was styled as an amended version of his motion for reconsideration. The day after the initial version was denied, Muthian filed the amended version. Treating the amended version as a "second" motion for reconsideration, the judge denied it on August 20, 2021.
2 appeal.3 We affirm the liability finding on KFHB's breach of
contract claim, but conclude that the damages award on that
claim was incorrect in one respect. We also reverse so much of
the judgment as entered in favor of KFHB on its quantum meruit
claim. We otherwise affirm.
A full recounting of the facts is unnecessary, and we refer
the reader to the extraordinarily detailed factual findings that
the trial judge issued. Those findings exhibit the thoughtful,
careful, and balanced approach that the judge took with respect
to the testimony he heard from the at least seventeen witnesses.
On appeal, Muthian does not challenge the judge's subsidiary
findings as clearly erroneous (with the limited exceptions
discussed below), and, in any event, those findings appear well
supported by the trial record. Nor is the thrust of Muthian's
argument that the judge applied the wrong legal principles.
Rather, he mainly argues that the judge misapplied the correct
law to the facts found. For the most part, we disagree.
1. Contract claims. The judge found that Muthian
materially breached his contract with KFHB in January of 2018
when he refused to pay more than a nominal amount of what KFHB
was owed, and it is self-evident that Muthian's subsequent
3 Notwithstanding some ambiguities in the respective notices of appeal, we treat the appeals as encompassing all three judgments and the two orders denying the parties' motions for reconsideration described in notes 1 and 2, supra.
3 firing of KFHB from the job also was a material breach.4 That
conclusion is well supported and correct. We discern no error
in the judge's rejection of Muthian's argument that his actions
were justified by a prior material breach by KFHB. To be sure,
the project at that point had not been completed within the
nine-month time frame set forth in the contract, but for reasons
the judge thoroughly explained, the contract read as a whole
does not support Muthian's view that the nine-month provision of
the contract established an unforgiving drop dead date.5 In
addition, the judge found that KFHB bore little responsibility
for causing delay,6 and that, overall, Kehn was "exceptionally
4 To be sure, KFHB made mistakes in invoicing. After making certain adjustments to account for mistakes that Muthian had pointed out, KFHB on January 16, 2018, sent Muthian an invoice for over $81,000 for the then completed work. As the judge found, the adjusted invoice was very close to the amount that Muthian eventually was determined to owe on the contract after the nine-day trial. However, in response to KFHB's invoice, Muthian offered to pay at most only $15,000, and even that offer was subject to KFHB's agreeing to certain new conditions such as forbearance from filing a mechanic's lien. KFHB still kept working to obtain an occupancy permit for Muthian and as soon as it succeeded in that task, Muthian fired KFHB from the job.
5 Muthian's argument is based on his taking out of context certain isolated contractual language that on its face speaks of the nine-month time frame in absolutist terms. However, as the judge pointed out, both directly before and after that language is other language that absolves KFHB of delays outside its control.
6 The judge found that the largest sources of delay were outside KFHB's control and responsibility. For example, the project unexpectedly needed approval from two local zoning bodies
4 patient" and accommodating with his exacting client. Those
findings are well supported by the trial evidence.
Granted, some problems remained at the time that Muthian
fired KFHB or arose thereafter. However, the judge found that
KFHB would have fixed these issues had it not been fired.7
Muthian argues that KFHB is precluded from pursuing its
contractual remedies because of the principle that a
construction "contractor cannot recover on the contract itself
without showing complete and strict performance of all its
terms." Andre v. Maguire, 305 Mass. 515, 516 (1940). As the
Supreme Judicial Court recently emphasized, the "need for strict
compliance with construction law contracts [is] to ensure that
the construction itself is done safely and correctly according
to design specifications." G4S Tech. LLC v. Massachusetts Tech.
Park Corp., 479 Mass. 721, 731 (2018) (G4S Tech.). Although the
court in G4S Tech. reaffirmed that a contractor may not sue on
the contract unless it can demonstrate complete and strict
compliance, the court emphasized that this principle is limited
to "breaches of the actual design and construction of the
because of a setback encroachment. Then, once it became clear that those approvals were needed, Muthian took the opportunity to significantly change his plans, which added layers of complexity to the project and additional delays.
7 Two potential unexcused exceptions are discussed below in some detail.
5 project." Id. All other alleged breaches -– including
allegedly delayed construction -- are subject to ordinary
contract principles, including a "materiality standard." Id. at
733 & n.16.
In the case before us, the "complete and strict
performance" principle applies at most to any actual
construction work that did not meet plans, specifications, or
standards set forth in the contract. See G4S Tech., 479 Mass.
at 732 ("We clarify today that the complete and strict
performance requirements in construction contracts apply only to
the design and construction work itself"). But as we already
have noted, to the extent that Muthian demonstrated that KFHB
left behind unaddressed problems that left the project falling
short of what the contract required, this was because Muthian
unjustifiably fired KFHB before it had the opportunity to fix
such issues. We therefore agree with KFHB that the principle
reaffirmed in G4S Tech. is inapplicable in this context. Put
differently, it cannot be that a client unilaterally gets to bar
his or her contractor from suing on a construction contract by -
- without adequate justification -- preventing the contractor
from completely and strictly finishing the contract.
We pause to dive into the details regarding two specific
disputes that played an outsized role in the conflict between
the parties. The first had to do with the finishing of the wood
6 floors. Against Kehn's forceful warnings, Muthian insisted that
the floors be finished using an unusual three-step manner in
which a water-based dye would first be applied, followed by an
oil-based stain, and then coats of water-based polyurethane.
The uneven results proved the wisdom of Kehn's advice.
Nevertheless, having agreed to use Muthian's preferred method
(against his own better judgment), Kehn willingly had the floors
redone a second time. Problems remained. Kehn still was
willing to refinish the floors a third time, but only if Muthian
agreed that he could use his more traditional tried and true
two-step means of doing so. Otherwise, Muthian would have to
hire his own floor contractor to perform his chosen method.
Muthian chose to pursue the latter route, although notably, once
he fired KFHB, he ended up having the floor redone using the
traditional method. On appeal, Muthian argues that the failure
of KFHB to complete the floor work stands as a bar to KFHB suing
on the contract, and that, in any event, the judge erred by not
deducting the cost of finishing the floors a third time from
what KFHB was owed. Given that KFHB already had finished the
floors twice notwithstanding that the problems were due to
Muthian's insistence on using his unproven methods against the
advice of Kehn, we discern no error in the judge's handling of
the floor issues.
7 The second detailed dispute that merits some discussion had
to do with the energy efficiency of the heating, ventilation,
and air conditioning (HVAC) system that was installed. The
relevant subcontractor, whose testimony Muthian did not include
in the record appendices, claimed that the installed system in
fact could perform at the efficiency level that Muthian desired
even though it was not nominally rated at that level. The
judge's ruling that any shortcoming in the system did not
constitute a material breach that justified KFHB's firing is
well founded, particularly given that the energy efficiency of
the system was never set forth as a required specification in
the written contract. Where it is not clear how the dispute
about the energy efficiency rating of the system would have
played out had KFHB not been fired, we discern no error in the
judge's declining to treat this issue as a bar to KFHB's suing
on the contract.8 We additionally note that even though the
judge awarded damages based on a violation of an oral agreement
to install the higher efficiency equipment, the judge recognized
8 It bears noting that even if KFHB had been barred from suing on the contract, it could have pursued its damages on a theory of quasi contract. See G4S Tech., 479 Mass. at 735. Moreover, "[w]hile a party does not recover on the contract itself under quantum meruit, a court may look to the terms of the underlying contract to help determine appropriate recovery under quantum meruit." Liss v. Studeny, 450 Mass. 473, 480 (2008). Thus, even if Muthian were correct that KFHB was barred from suing on the contract, this would appear to have limited consequences.
8 the possibility that the HVAC system in fact might be able to
achieve the desired efficiency level.
2. Computation of contractual damages. KFHB was not
looking to be paid on the contract for any work it had not yet
performed. Hence, in calculating what KFHB was owed, the judge
ruled that Muthian was not entitled to a setoff for what he paid
a different contractor to complete the job. At the same time,
the judge ruled that Muthian was entitled to work needed to
correct problems that remained after KFHB was fired.9 Drawing a
line between completion work and correction work was not easy in
practice, and it was complicated by the fact that Muthian
altered some aspects of the project even after KFHB was no
longer in the picture. In addition, difficult accounting issues
arose with regard to various items that KFHB was slated to
purchase under the contract -- subject to specified allowances -
- but that Muthian ended up purchasing himself.
The parties, and Muthian in particular, did little to
assist the judge in sorting out these computational issues.
Instead, as the judge observed in denying Muthian's second
motion for reconsideration,
"Muthian presented his damages argument in broad strokes, in effect asking to be awarded every dollar he spent on the project after KFHB's services were terminated (even if the
9 For the reasons the judge explained, Muthian's argument that he was entitled to both completion work and corrective work is not persuasive.
9 work was done two years later), and failing to address at all what money, if any, KFHB was owed for work that it had done but for which it had yet to be paid."
As a result, the judge was, in his own words, "left largely on
[his] own to try to fairly and sensibly resolve a myriad of
damages issues and disputes about items large and
inconsequentially small based on the applicable legal principles
and [his] findings of fact." This required him to "put in
inordinate time and energy to sort through complicated damages
issues involving appropriate credits and offsets having to do
with countless aspects of the project and to issue extensive and
comprehensive findings and rulings." Having failed to raise the
issues in a reasonable and timely manner at trial, Muthian
instead put together in his postjudgment motions a "post-hoc
litany of complaints about particular findings and damages
determinations." The judge rejected all of Muthian's arguments,
and -- having finally run out of patience -– he
"decline[d] . . . to address them seriatim."
As the judge pointed out, Muthian failed to press several
of his computational arguments until his first, or even second,
motion for reconsideration. For example, in his first motion
for reconsideration, Muthian requested that he receive credits
for his purchase of wood flooring and of light switches. In
denying that motion, the judge observed that Muthian had not
previously specifically asked that adjustments be made on
10 account of those purchases. Muthian has not demonstrated that
this observation was wrong. In fact, he did not put before us
the record material that would be needed to establish that he
had timely asserted these issues, such as a transcript of his
closing argument and a copy of his proposed findings and
rulings.10 Although we have no duty to examine parts of the
appellate record not included in the record appendices, we have
confirmed that Muthian never included the cost of purchasing the
flooring or light switches among the specified credits he
claimed in his proposed findings, which we retrieved from the
electronic docket of the Superior Court.11 Under these
circumstances, the judge did not abuse his discretion in deeming
such arguments untimely and in denying Muthian's motions for
reconsideration on that basis. See generally Audubon Hill S.
Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc.,
82 Mass. App. Ct. 461, 470 (2012) (denial of motion for
reconsideration reviewed only for abuse of discretion).
10In his reply brief, Muthian has identified record citations to support his argument that he purchased various items for which additional adjustments should have been made. However, for present purposes, the issue is not whether there existed record support for Muthian's arguments, but instead whether he timely raised such arguments with the judge.
11Similarly, these items were not listed in the chalk that Muthian produced at trial to summarize the credits he claimed.
11 Muthian did raise three arguments as to certain specific
damages in a timely manner, and we are unpersuaded by two of
them. His argument that he somehow was charged twice for KFHB's
installation of the windows is simply unfounded. Similarly,
Muthian has not demonstrated error in the judge's declining to
award him more than the $2,004 credit that KFHB provided him for
his forgoing plans to build a master bath deck.12
Muthian's remaining preserved computational argument has to
do with how much credit was due for two pieces of ventilation
equipment. KFHB gave Muthian credit for the cost of one of the
"ERV" units ($1,500) but not the other. Muthian argued in his
proposed findings and one of his motions for reconsideration
that he was entitled to credit for both. The judge's reason for
rejecting this argument is not clear. For its part, KFHB argues
that providing Muthian only a partial credit can be justified
because the labor costs of installing the chosen equipment,
12At trial, Muthian argued, based on estimates he provided from other contractors, that the forgone work of building the master bath deck should be valued much higher. On appeal, he does not argue that the judge had to credit such testimony; instead, he argues that the judge erred by providing him credit for only $2,004 even though the judge found the deck work to be worth $3,000 (leaving a shortfall of $996). A close reading of the judge's findings together with the trial record reveals that the judge intended to accept the amount of the credit that KFHB already had provided Muthian for the forgone deck work, which an exhibit confirms was $2,004. The judge's passing reference to KFHB's having provided Muthian a $3,000 credit appears to be a mere transcription error, not an independent assessment of what the work was worth.
12 pursuant to Muthian's particular preferences, ended up being far
greater than expected. While this argument is not without some
appeal, it ignores the fact that -– contrary to KFHB's
contention at oral argument -- the contract included a general
provision capping installation costs at ten percent with respect
to the calculation of allowances that the contract provided.
Because KFHB has not offered a sufficient justification for why
Muthian should not receive credit for the full amount ($3,000,
less a ten percent amount for installation costs), we conclude
that Muthian is entitled to an additional $1,200 credit, plus a
pro rata share of the prejudgment interest.13
One additional computational argument that Muthian touches
on in a footnote warrants mention. But see Commonwealth v.
Vick, 454 Mass. 418, 433 n.15 (2009) ("arguments relegated to a
footnote do not rise to the level of appellate argument"). The
issue has to do with the baseline figure the judge should have
used with regard to what KFHB was owed under the contract before
any adjustments were then made to account for corrective work
that needed to be done or credits for which Muthian was due.
The judge accepted the invoiced figures that KFHB was claiming
but then started with a baseline that was $7,392.31 higher than
13Interest on $1,200 at the contractual rate of eighteen percent per year (1.5 percent per month) for the period of time from the breach of contract through the entry of judgment (1,244 days) comes to $735.67, bringing the credit due Muthian to $1,935.67.
13 that. The extra increment appears to have related to certain
additional charges included in change orders. The judge
explained that he added this additional sum to what KFHB was
claiming because he assumed that the failure to include this
additional increment was "an oversight on the part of Kehn."
Even though Muthian did not challenge the judge's assumption at
trial or in either motion for reconsideration, he now argues
that that additional sum was unjustified because the invoiced
figures KFHB had put forward already took into account the
relevant change orders. On this basis, Muthian now claims that
the judge started with a baseline that was approximately $7,400
too high. Passing over whether Muthian has preserved this
issue, we are unpersuaded that he has demonstrated clear error
in the judge's calculation of the baseline.
In their cross appeal, the Kehn parties argue that the
judge made seven specific computational errors in Muthian's
favor. For example, KFHB argues that it should not be docked
for the value of work spent by Muthian's replacement contractor
to reassemble a so-called "wet bar," because even if such work
was necessary to correct the faulty assembly of the wet bar,
this was not work for which KFHB was responsible under the
contract in the first place. As with many of Muthian's
arguments, it appears that KFHB's arguments were not timely
raised at trial (or at least that KFHB has not demonstrated that
14 they were by providing us the relevant record materials). In
fact, KFHB appears not to have raised any of its specific
arguments until its own motion for reconsideration, and some of
such arguments (such as certain costs with respect to the washer
and dryer) were not raised until this appeal. Therefore, the
judge did not abuse his discretion in denying KFHB's motion for
reconsideration.14
3. Quantum meruit. Muthian also challenges the award of
quantum meruit damages for certain work that Kehn performed that
was not contemplated by the contract. That work had to do with
bringing a staircase up to code and enclosing a porch. At the
point this additional work was done, Kehn did not seek to
process change orders that would have required Muthian to make
additional payments under the contract. Rather, Kehn then was
willing to perform the work without receiving additional
compensation. For example, with respect to the staircase work,
Kehn explained at trial that: "I didn't charge [Muthian] at
14There is a threshold question whether the cross appeal was timely. It was not filed within fourteen days of Muthian's appeal, or within thirty days of entry of the judgments being appealed. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). Accordingly, the timeliness of the cross appeal depends on whether the thirty-day period to appeal the July 12, 2021 judgments was tolled not just by the parties' initial motions for reconsideration, but also by Muthian's second such motion. Because we conclude that the arguments raised in KFHB's motion for reconsideration (or later) were not timely raised in any event, we need not resolve the timeliness of the cross appeal.
15 that time for [the staircase] because I just felt like it was
something that I felt proud of to do to this house. . . . I
just wanted to do the right thing." However, once Muthian
refused to pay KFHB under the contract and forced KFHB to bring
suit to collect what it was owed, Kehn had a change of heart.
Specifically, he sought compensation for the additional work
under a theory of quasi contract.
Based on his evaluation of the equities at issue, the judge
awarded KFHB $15,000 for the extra work -- less than one-half of
what Kehn claimed the work was worth -- an award that, together
with prejudgment interest, totaled $20,852.91. We are not
unsympathetic to the judge's perspective about the equities, but
based on his specific findings, we agree with Muthian that the
judge was not free to award quantum meruit damages for the work
that KFHB performed for free.15 One of the required elements of
15To be clear, we do not accept Muthian's separate argument that KFHB cannot recover in quantum meruit on the grounds that its complaint sounded only in unjust enrichment. For one thing, while an argument can be made that these two quasi contract theories are conceptually distinct, many of the cases treat them as interchangeable. See, e.g., Liss, 450 Mass. at 479–480 (explaining that "[t]he underlying basis for awarding quantum meruit damages in a quasi-contract case is unjust enrichment of one party and unjust detriment to the other party" [citation omitted]). For another, the rules that govern pleadings simply are not as hypertechnical and strict as Muthian claims. Cf. Bullock v. Zeiders, 12 Mass. App. Ct. 634, 637-638 (1981) (motion to amend pleadings to conform to evidence may be made even after judgment).
16 quantum meruit is that "the claimant reasonably expected
compensation from the defendant[]." Finard & Co., LLC v. Sitt
Asset Mgt., 79 Mass. App. Ct. 226, 229 (2011). The judge
himself expressly recognized that this element was not
satisfied. As the cases have long recognized, someone who has
rendered services or transferred property with a donative intent
"cannot transpose an executed gratuity into a legal liability to
pay." Ramseyer v. Conlon, 303 Mass. 270, 274 (1939) (party who
did not intend to charge plaintiff interest on her securities
until plaintiff demanded an accounting could not recover that
interest).16 Accordingly, Muthian is entitled to a reduction of
$20,852.91 in the judgment against him.
4. Intentional or negligent misrepresentation. Muthian
claimed that Kehn had misrepresented the size of his crew, and
that this misrepresentation induced him to hire KFHB to his
detriment. As to this issue, Muthian claims that the judge's
findings are clearly erroneous. He argues in essence that the
judge was required to accept his forceful testimony on these
points, because it was not directly contradicted by Kehn. That
is simply not a correct statement of law. See, e.g.,
16KFHB seeks to save its quantum meruit award by suggesting that its willingness to perform the additional work without additional compensation was conditioned on Muthian's continuing to pay what was due under the contract. While that argument has some appeal, the judge made no such finding.
17 Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 328 n.10 (2015)
("The absence of a conflict in the evidence does not mean that
the motion judge is required to credit the testimony").
Moreover, as the judge pointed out, the fact that the extensive
written communications between the parties throughout the
project included no complaints by Muthian about the size of
KFHB's crew undercuts his claims on this point. In light of the
fact that the judge was free not to credit Muthian's factual
testimony regarding Kehn's representations about the size of the
KFHB crew, there is no merit to Muthian's argument that the
judge erred in rejecting his fraudulent inducement claims.
5. G. L. c. 142A and G. L. c. 93A violations. In addition
to arguing that KFHB violated the contract and improperly
induced him to enter the contract, Muthian alleged that the Kehn
parties violated both G. L. c. 142A and G. L. c. 93A. In fact,
the judge ruled in Muthian's favor with respect to these claims
insofar as Muthian alleged two minor building code violations.
For these claims, the judge awarded $2,687.74 total in damages
(including prejudgment interest), plus $2,500 in attorney's
fees. Having found no intentionality in the violations, the
judge did not err in declining to award multiple damages. See
Hyannis Anglers Club, Inc. v. Harris Warren Commercial Kitchens,
LLC, 91 Mass. App. Ct. 555, 560-561 (2017) (multiple damages
warranted only for conduct that constitutes a deliberate
18 violation of c. 93A). To the extent that Muthian now contends
that the judge erred by not finding additional violations of
c. 142A (and derivatively of c. 93A), his argument fails on the
facts. Similarly, to the extent that Muthian claims that the
Kehn parties violated c. 93A in other ways, his arguments also
fail on the facts.17 For example, the judge's findings that the
Kehn parties engaged in no untoward conduct to attain an unfair
advantage over Muthian are well founded. While it is true that
Kehn on occasion made some accounting errors, the judge found
that these were unintentional and quickly corrected. For
example, even Muthian testified that he thought he "caught
[Kehn] off guard" with respect to the accounting error and that
"[Kehn] corrected it once it was brought to his attention."
6. Ex parte contact with witness. Finally, we address the
judge's relationship and ex parte meeting with a witness,
Richard Baldacci. Baldacci had been the building inspector for
Marblehead during the relevant period. Baldacci's testimony, as
a fact witness, primarily went to the parties' efforts to obtain
occupancy permits for the renovated home. He appeared on both
parties' pretrial witness lists. The judge knew Baldacci
personally, a fact he raised with counsel prior to the
17Because Muthian has not prevailed in this appeal with respect to his statutory claims, we deny his request for appellate attorney's fees. See Marengi v. 6 Forest Rd. LLC, 491 Mass. 19, 31-32 (2022).
19 commencement of trial. The judge even noted that he would be
inclined to credit Baldacci's testimony. He asked both parties
whether they had a problem with his sitting on the case, and
neither party requested that the judge recuse himself. On the
day that Baldacci testified, the judge in open court invited him
to come back to his chambers during a break in the trial because
he would "just like to say hello to [him] back here." Again,
neither side objected. Nevertheless, Muthian now argues that
the judge's meeting with Baldacci ex parte was so untoward that
perhaps a new trial may be required.
Without endorsing the judge's decision to meet privately
with a witness during the trial, we are unpersuaded that this
action constitutes reversible error. First of all, Muthian has
provided us no reason to question the judge's statement that he
was meeting with the witness merely to "say hello" or otherwise
catch up, not to discuss the case. Second, by his silence after
previously indicating that the relationship between the judge
and Baldacci did not present a problem, Muthian waived any
objection to the contact. See Matter of Moore, 449 Mass. 1009,
1010 n.1 (2007) (issue of recusal waived where not raised until
appellate briefs). Third, Muthian has not come close to
demonstrating how he was prejudiced by the meeting. Baldacci, a
government official, was a fact witness who was not aligned with
either side. While his testimony was not unimportant, it was
20 hardly critical to the Kehn parties' prevailing.18 Muthian has
not articulated how the judge's meeting with Baldacci had any
appreciable impact on the judge's resolution of the case. See
Perez v. Boston Hous. Auth., 379 Mass. 703, 741 (1980) (where ex
parte communications "unthinking rather than venal," and did not
"affect[] the substance of the proceedings one way or the
other," reversal not required).
Conclusion. So much of the July 12, 2021 judgment as
entered in favor of KFHB on count two is reversed; so much of
that judgment as awarded damages on count one is vacated, and
the judgment is revised to order Muthian to pay KFHB $88,608.86
in contractual damages (including prejudgment interest through
the date of the original judgment);19 in all other respects, that
judgment is affirmed. As to the August 20, 2021 order denying
Muthian's second motion to reconsider, so much of the order as
pertains to the request for additional credit for the "ERV"
units is reversed; the order is otherwise affirmed. The July
18Muthian places great emphasis on appeal, as he did at trial, on Baldacci's granting, and then revoking, a temporary occupancy permit. That focus appears misplaced. As the judge expressly found, the revocation of the temporary occupancy permit "was without practical consequence because the flooring situation kept Muthian from moving in at that time."
19This figure is the original amount awarded under KFHB's contract claim (including prejudgment interest), less the $1,935.67 adjustment Muthian is due with respect to the ERV credit. See note 13, supra.
21 12, 2021 judgment entered in favor of Muthian, the August 18,
2021 judgment awarding attorney's fees, and the August 10, 2021
order denying the parties' motions for reconsideration are
affirmed.
So ordered.
By the Court (Milkey, Massing & Henry, JJ.20),
Clerk
Entered: May 15, 2023.
20 The panelists are listed in order of seniority.