Kelley v. Riccelli Enterprises of Massachusetts, Inc.

2010 Mass. App. Div. 81, 2010 WL 2103022, 2010 Mass. App. Div. LEXIS 26
CourtMassachusetts District Court, Appellate Division
DecidedMarch 29, 2010
StatusPublished
Cited by3 cases

This text of 2010 Mass. App. Div. 81 (Kelley v. Riccelli Enterprises of Massachusetts, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelley v. Riccelli Enterprises of Massachusetts, Inc., 2010 Mass. App. Div. 81, 2010 WL 2103022, 2010 Mass. App. Div. LEXIS 26 (Mass. Ct. App. 2010).

Opinion

Coven, J.

Plaintiff Dennis Kelley (“Kelley”), an independent trucking contractor, performed work for, and billed, defendant Riccelli Enterprises, Inc. (“Riccelli”). Riccelli withheld payment as a setoff for its payment of environmental cleanup costs it incurred after Kelley’s truck had caught on fire and discharged fuel and oil while parked at Riccelli’s place of business. Kelley asserted that Riccelli’s conduct was unfair and deceptive because Riccelli had withheld the money only to gain advantage in its litigation with Kelley’s insurer. The trial court judge agreed with Kelley, found a breach of contract and damages, doubled those damages under G.L.c. 93A, and assessed attorney’s fees. This appeal by Riccelli followed. Riccelli argues that its motion for summary judgment was improperly denied; and that the court’s finding of a G.Lc. 93A violation and resulting award of damages and attorney’s fees were clearly erroneous.

1. Riccelli sought summary judgment against Kelley on his G.L.c. 93A, §11 claim on the basis that the relationship between Kelley and Riccelli was based on a contract that contained a choice-of-law provision by which the parties had chosen to have New York law applied. It was argued that New York law would not permit an unfair business practice claim. The motion was denied, and Riccelli now seeks appellate review of that ruling.

The denial of a motion for summary judgment is not, however, appealable after trial. Leavitt v. Mizner, 404 Mass. 81, 87 (1989). “The purpose of summary judgment is to bring litigation to an early conclusion without the delay and expense of a trial when no material facts are at issue, and it goes without saying that that purpose cannot be served after the case has gone to trial.” Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986). While summary judgment denial may be reviewed through an interlocutory appeal, Leavitt, supra. See Dist./Mun. Cts. R. A. D. A, Rule 5 (“Pursuant to G.L.c. 231, §108, a judge may, in his or her discretion, report a judgment, interlocutory or other ruling, ... for determination by the Appellate Division.”), Riccelli failed to file a request for the judge to report the issue. [82]*82Nor did it request a ruling of law to preserve the issue after trial.

2. In turning to the remaining issues on this appeal, we note that the trial judge adopted verbatim the requests for findings of fact proposed by Kelley.2 The judge also allowed Kelley’s and Riccelli’s requests for rulings of law. Riccelli does not dispute the basic facts.

Kelley performed services for Riccelli for the period from October 15 through October 19, 2007, and submitted an invoice for those services on October 19, 2007, in the amount of $2,955.14. On October 21,2007, Kelley’s tractor was destroyed in a fire at Riccelli’s equipment yard. Two vehicles parked on either side of Kelley’s tractor were also damaged, and there was environmental damage to Riccelli’s property. Riccelli filed a suit in the superior court against Kelley to recover the costs it had incurred in remediating that environmental damage.

Both Kelley and his counsel made several requests for payment of the October 19, 2007 invoice: Kelley orally, and his counsel through written requests. Riccelli knew that Kelley’s tractor service was his sole source of income and was aware of Kelley’s financial plight caused by the loss of the tractor. The withholding of the invoice payment further damaged Kelley’s financial position. The trial judge adopted Kelley’s request that the court find Riccelli withheld payment of the invoice in an effort to leverage a settlement of the superior court litigation. The trial court added that Riccelli withheld payment in an effort also to leverage the earlier insurance claim that'gave rise to the superior court action.

The court adopted Kelley’s statement that counsel sent Riccelli a G.Lc. 93A demand letter, even though such a demand was unnecessary because Kelley’s G.L.c. 93A claim was pursuant to §11 of that statute governing business-to-business litigation. Dahlborg v. Middleborough Trust Co., 16 Mass. App. Ct. 481, 485 (1983). This finding conflicted with one of Kelley’s requests for a ruling of law that referred to the consumer protection portion of G.L.c. 93A, §9. Other requests, however, provided citations to appellate decisions deciding business-to-business litigation. Riccelli, in its fourth request for a ruling of law, brought to the trial judge’s attention that a distinction exists between a §9 and a §11 claim. Riccelli requests for rulings were limited to Kelley’s G.L.c. 93A claim.

Riccelli argues that it was prejudiced by the trial judge’s erroneous application of §9 to this action. Specifically, Riccelli argues that §11 requires a “level of rascality that would raise an eyebrow of someone inured to the rough and tumble world of commerce.”3 Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504 (1979). We agree that what might be unfair to a consumer may be common in a commercial set[83]*83ting. Spence v. Boston Edison Co., 390 Mass. 604, 616 (1983). Amere breach or nonpayment of a debt will not establish liability under §11. See Madan v. Royal Indem. Co., 26 Mass. App. Ct. 756, 762 (1989) (breach of lease); Community Bldrs., Inc. v. Indian Motocycle Assocs., Inc., 44 Mass. App. Ct. 537 (1998) (nonpayment of debt).

We are satisfied, however, that the trial judge applied the proper standard in this case. Kelley’s reference to §9 was a single and obvious mistake. The references to §11 in both Kelley’s remaining requests and Riccelli’s requests, and the judge’s adopted finding that Kelley’s claim was a §11 claim, warrant the conclusion that the judge was aware that the standard to be applied in this case was that governing business-to-business cases. Moreover, the trial judge’s finding that Riccelli’s withholding of payment was undertaken to leverage its position on its claim against Kelley for environmental cleanup costs indicates his awareness of the level of unfairness and deception required under §11. “[Cjonduct ‘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 Wang Lab. Inc. v. Business Incentives, Inc., 398 Mass. 854, 857 (1986).

Riccelli argues further that the trial judge failed to recognize its right to be reimbursed by Kelley for the environmental cleanup costs. The short answer is that Riccelli has taken a single comment by the trial judge out of context. During Riccelli’s closing argument, the trial judge asked Riccelli’s counsel whether he “agree [d] absolute liability is not the law in Massachusetts.” Counsel was quick to point out that such a view was incorrect, and that absolute liability was the law in Massachusetts. Nothing in the record suggests that the court did not inform itself, and apply, the correct law when it ultimately decided this case.

We reject Riccelli’s argument that Kelley failed to prove a ‘loss of money” as required under §11.4 Riccelli cites Multi Tech., Inc. v. Mitchell Mgt. Sys., Inc., 25 Mass. App. Ct. 333 (1988) for the proposition that Kelley’s damages for the purposes of a §11 award were not to be measured by his contract damages. Rather, recoverable damages would consist only of the loss of the use of the money and consequential damages.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Stacy v. Zhao
2013 Mass. App. Div. 59 (Mass. Dist. Ct., App. Div., 2013)
Atlantic Microwave Corp. v. Whalen
2011 Mass. App. Div. 216 (Mass. Dist. Ct., App. Div., 2011)
Duffy v. Enterprise Rent-A-Car Co. of Boston, Inc.
2010 Mass. App. Div. 190 (Mass. Dist. Ct., App. Div., 2010)

Cite This Page — Counsel Stack

Bluebook (online)
2010 Mass. App. Div. 81, 2010 WL 2103022, 2010 Mass. App. Div. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-riccelli-enterprises-of-massachusetts-inc-massdistctapp-2010.