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-1241
LAWRENCE BUCCI & another 1
vs.
LINDSEY CAMPBELL & another. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial in the Superior Court, a jury found that the
defendants, William and Lindsey Campbell, had breached a
contract with the plaintiffs, Lawrence and Pamela Bucci, by
failing to install a natural gas line to the lot that the Buccis
had purchased from the Campbells. The Buccis also prevailed on
their claims of breach of the implied covenant of good faith and
fair dealing and of negligent, but not intentional,
misrepresentation by Lindsey. 3 The jury found for the Campbells
1 Pamela Bucci.
2 William Campbell.
3When referring to Lindsey Campbell or Lawrence Bucci individually, we will use their first name. on their counterclaim of breach of contract based on the Buccis'
failure to release the last part of the purchase price, which
was held in escrow under a side agreement. The trial judge, who
had reserved the Buccis' claim under G. L. c. 93A, subsequently
ruled in favor of the Campbells on that claim and denied both
parties' motions for judgment notwithstanding the verdict. On
the Buccis' appeal, 4 we affirm the jury verdict but vacate the
judge's dismissal of their c. 93A claim.
Background. The following evidence was presented at trial.
The Campbells were the owner-developers of the Hummingbird Lane
subdivision in Westford. Their subdivision plan, approved by
the town planning board, contemplated that the lots would be
serviced by underground natural gas (and electric) lines. The
Campbells, however, had concerns about the cost of installing
the natural gas line; Lindsey had numerous communications with
National Grid representatives from November 2017 through October
2018 discussing the costs and cost-saving options for installing
the line. In July 2018 Lindsey learned that all National Grid
projects had been delayed until at least the spring of 2019
because of a work stoppage.
4 The Campbells filed a notice of appeal from the judgment, after which the Buccis filed a notice of cross appeal. The Campbells' appeal was dismissed for lack of prosecution. See Appeals Court Rule 19.0.
2 On October 30, 2018, Lindsey, who was a real estate agent,
listed "Lot 2" of the subdivision for sale; the listing sheet
stated "Gas: Nearby." The Buccis testified that having a
natural gas line was very important to them, and that Lindsey
promised during a meeting in early November 2018 that the lot
would be serviced by a gas line. Lindsey testified that she
made no such promise and told Lawrence only that she "hoped for
natural gas" but that installation was unlikely because of the
National Grid work stoppage. Lindsey denied that at the time of
that meeting she had already decided to forego natural gas.
Indeed, as late as April 2019 Lindsey continued to communicate
with National Grid about the possibility of installing a gas
line.
On November 19, 2018, the Campbells and Lawrence entered
into a purchase and sale agreement whereby Lawrence acquired Lot
2 of the subdivision for $330,000. Shortly before closing on
the purchase in late February 2019, it became apparent that the
Campbells needed cash to pay their contractor for site
excavation work and for other work necessary to deliver the
Buccis' lot. Accordingly, the parties entered into a "side
agreement" (the escrow agreement) in which the Campbells agreed
that $90,000 from the sale proceeds would be distributed
directly to their contractor and further agreed to "perform the
work required by the Town of Westford for the roadway,
3 stormwater management systems, infrastructure, utilities, and
landscaping" for Lot 2 as required in the subdivision plan. For
this purpose, they agreed that $40,000 from the sale proceeds
would be placed in an escrow account "to be utilized by the
Campbells to pay for the work referenced herein as needed," with
any remaining balance to be released to the Campbells "once the
binder coat of black top [had] been laid" for the roadway. The
Campbells immediately disbursed almost $29,000 of the escrowed
funds to the contractor for additional work, and later disbursed
another $5,500, leaving a balance of just over $5,000. When the
binder coat was laid in May 2019 without a natural gas line
having been installed, the Buccis refused to release the balance
of the escrowed funds. The Campbells then applied for and
obtained a modification of their approved subdivision plan from
the planning board, releasing them from the plan's requirement
to install natural gas lines. 5 Shortly thereafter, the Buccis
initiated this lawsuit against the Campbells.
Discussion. 1. Intentional misrepresentation. The Buccis
challenge the jury's verdict that Lindsey's statements prior to
the Buccis' purchase of the property did not amount to
5 The notice of approval of the modification stated that the approved subdivision plan included a "requirement to install the proposed gas line," but that nothing in the planning board's rules and regulations required installation of natural gas lines and that the proposal not to install a gas line was a "minor change to the approved plan."
4 intentional misrepresentations. The Buccis bear "a particularly
heavy burden" to prevail on this claim. Brewster Wallcovering
Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582,
594 (2007). See Cahaly v. Benistar Prop. Exch. Trust Co., 451
Mass. 343, 350, cert. denied, 555 U.S. 1047 (2008) ("nullifying
a jury verdict is a matter for the utmost judicial
circumspection"). "An appellate court will not set aside a jury
verdict on any material fact found by a jury unless the jury
verdict or fact has no rational basis in the evidence."
Brewster Wallcovering Co., supra at 594-595. "A jury verdict
will be upheld so long as 'anywhere in the evidence, from
whatever source derived, any combination of circumstances could
be found from which a reasonable inference could be drawn in
favor of" the prevailing party. Id. at 595, quoting Tufankjian
v. Rockland Trust Co., 57 Mass. App. Ct. 173, 178 n.9 (2003).
To establish intentional misrepresentation, a plaintiff
must prove "(a) an intentional or reckless (b) misstatement
(c) of an existing fact (d) of a material nature, (e) causing
intended reasonable reliance and (f) financial harm to the
plaintiff." Welch v. Barach, 84 Mass. App. Ct. 113, 120 n.11
(2013). Lindsey testified that at the time of her meeting with
Lawrence in early November 2018, she had not yet decided to
install propane instead of natural gas, and that she told
Lawrence that she "hoped for" natural gas but that a National
5 Grid work stoppage made the installation of a gas line unlikely.
Indeed, there was evidence that in January 2019 Lindsey was
still "reaching out [to National Grid] to try to see if anything
was changed or what possibilities there were in regard to
natural gas." Even if her testimony at trial was inconsistent
with her deposition testimony, the jury were free to believe or
disbelieve, in whole or in part, any part of her testimony, and
to discredit the Buccis' testimony to the contrary. See
Commonwealth v. Tennison, 440 Mass. 553, 566 (2003); Calderone
v. Wright, 360 Mass. 174, 176 (1971); Klayman v. Silberstein,
252 Mass. 275, 278 (1925). Indeed, "[r]eview of these motions
require[s] us to 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).
The jury found that any misrepresentations made by Lindsey
were negligent but not intentional. As the evidence provided a
rational basis from which they could do so, we have no basis to
set aside the verdict on the intentional misrepresentation
claim.
2. Breach of contract counterclaim. The Buccis argue that
the judge erred in denying their motion for judgment
notwithstanding the verdict on the Campbells' counterclaim for
breach of contract. As the case was presented to the jury, the
6 Campbells claimed that the Buccis breached the escrow agreement
by refusing to release the remaining balance of $5,357 as soon
as the binder coat was laid. The Buccis argued that they were
excused from any contractual obligation to release the escrow
funds because the Campbells breached the escrow agreement
first -- by disbursing funds before the binder coat was applied.
See Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010)
("a material breach of contract by one party excuses the other
party from performance as a matter of law" [quotation omitted]).
The jury had a rational basis in evidence for rejecting the
Buccis' argument and finding in favor of the Campbells. The
escrow agreement permitted them to use escrowed funds to pay
their contractor "for the work referenced herein as needed,"
which was not limited to installation of a gas line, but
included any work "for the roadway, stormwater management
systems, infrastructure, utilities, and landscaping."
In their motion for judgment notwithstanding the verdict,
the Buccis argued that the Campbells' theory of breach of
contract should not have gone to the jury because it varied from
the contract claim alleged in their counterclaim. As to this
argument, the judge ruled that the Buccis had "waived objection
to the jury deciding this issue." We agree with the judge in
this regard, as the Buccis made no objection at trial to the
7 jury instructions or to the verdict slip. 6 See Motsis v. Ming's
Supermkt., Inc., 96 Mass. App. Ct. 371, 383 (2019).
Furthermore, as the Buccis were on notice of the implicit
amendment of the complaint to conform to the evidence, and the
case was fully and fairly tried on that basis, the judge did not
err in permitting the claim to go to the jury. See St. Clair v.
Trustees of Boston Univ., 25 Mass. App. Ct. 662, 669-670 (1988).
The Buccis also made a new argument, which they continue to
advance on appeal: that the Campbells' prior breach, excusing
the Buccis' obligation to release the balance of the escrowed
funds, was the Campbells' failure to install the natural gas
line. Because this argument was raised for the first time in
the motion for judgment notwithstanding the verdict and was not
asserted in the Buccis' motion for a directed verdict, 7 it is
6 Counsel for the Buccis stated during the charge conference that he believed the "escrow issue" was "out of the case because it was pled as tortious interference"; the judge responded that the Campbells' contract claim was still "in the case," and that the nature of that claim was an issue to be clarified between counsel. During closing argument, counsel for the Buccis addressed the Campbells' claim for breach of the escrow agreement as presented and without objection.
7 The Buccis' motion for a directed verdict focused on the Campbells' assertion that the Buccis failed to provide the twenty-day notice of default and opportunity to cure set forth in the escrow agreement. Counsel for the Buccis argued that notice to cure was futile because the Campbells would not have been able to install a gas line in twenty days. This line of argument was not sufficient to alert the judge of any claim that failure to install the gas line was a breach of the escrow
8 waived. "As a motion for judgment notwithstanding the verdict
is technically a revised motion for a directed verdict, no
grounds for the motion for judgment notwithstanding the verdict
may be raised which were not asserted in the directed verdict
motion." Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31,
34 (1991), S.C., 412 Mass. 612 (1992). See Shafir v. Steele,
431 Mass. 365, 371 (2000); Motsis, 96 Mass. App. Ct. at 382;
Matley v. Minkoff, 68 Mass. App. Ct. 48, 52 (2007).
3. Liability under G. L. c. 93A. The Buccis argue that the
trial judge erred in entering judgment against them on their
c. 93A claim. "[W]hether a particular set of acts, in their
factual setting, is unfair or deceptive is a question of fact.
But whether conduct found to be unfair or deceptive rises to the
level of a chapter 93A violation is a question of law"
(quotations and citations omitted). H1 Lincoln, Inc. v. South
Washington St., LLC, 489 Mass. 1, 13-14 (2022). Of the four
elements necessary to prove a claim under G. L. c. 93A, § 9, see
Rafferty v. Merck & Co., 479 Mass. 141, 161 (2018), the only
element at issue here is whether the Campbells' conduct amounted
to unfair or deceptive acts or practices. We review the trial
agreement excusing the Buccis' performance. See Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 35-36 (1991), S.C., 412 Mass. 612 (1992) ("The requirement that a litigant state specific grounds in support of a motion for directed verdict is an important one" in part because "[i]t allows the judge knowingly to rule on the question before him").
9 judge's conclusions of law on this issue de novo. See Casavant
v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011).
The judge found that the Campbells' conduct in dropping the
natural gas line from the project was "a bit sleazy," and that
they relied on "an extremely weak claim," hoping that the Buccis
would not challenge them. Nonetheless, the judge concluded that
the Campbells' conduct did not "rise to the level of rascality[8]
or misconduct required" for a c. 93A violation. We disagree.
The Buccis suggest incorrectly that because the jury found
Lindsey liable for negligent misrepresentation, the judge was
bound to find a c. 93A violation. See Specialized Technology
Resources, Inc. v. JPS Elastomerics Corp., 80 Mass. App. Ct.
841, 844 (2011) ("a jury's verdict on related common-law claims
is not binding on a judge who has reserved determination of a
c. 93A claim to herself"). "It is indeed both possible and
feasible for a judge deciding a c. 93A claim to make findings of
8 The standard for a c. 93A violation does not include an inquiry into "rascality." See Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 42-43 (1995) ("We view as uninstructive phrases such as 'level of rascality' . . . in deciding questions of unfairness under G. L. c. 93A"). If "rascality" has any relevance, it is limited to business-to- business transactions. See Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 475-476 (1991); Greenery Rehabilitation Group, Inc. v. Antaramian, 36 Mass. App. Ct. 73, 78-79 (1994); Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504 (1979). The judge's reliance on the "rascality" standard may have led to error in his ultimate finding.
10 fact that are contrary to those made by a jury on a parallel
common law claim." Kattar v. Demoulas, 433 Mass. 1, 12 (2000).
Nonetheless, the judge's findings clearly demonstrated that
he agreed with jury's verdict. Although he stated that the
verdict was not "advisory" and had "no issue preclusive effect"
on him, he found "that the jury's verdicts were the product of
careful and cautious consideration of the evidence and careful
and cautious consideration of the court's written jury
instructions," going on to note that "[t]he lengthy verdict slip
was executed logically and carefully in all details, reflecting
the jury's careful attention to the evidence and the jury's
careful attention to the court's instructions." In that logical
and careful verdict slip, the jury found both that the Campbells
breached the implied covenant of good faith and fair dealing in
their agreement to install a natural gas line to the Buccis'
property, and that Lindsey negligently (but not intentionally)
supplied false information to the Buccis on which they
reasonably relied to their detriment. Based on the judge's
acceptance of the jury's findings, combined with his additional
subsidiary findings, we conclude as a matter of law that the
Campbells' conduct was both "deceptive" and "unfair" within the
meaning of c. 93A. See Chiulli v. Liberty Mut. Ins., Inc., 97
Mass. App. Ct. 248, 259 (2020) (judges' ultimate findings will
be set aside when inconsistent with subsidiary findings).
11 "An act or practice will be found deceptive if, first,
there is a representation, omission, or practice that, second,
is likely to mislead consumers acting reasonably under the
circumstances, and third, the representation, omission, or
practice is material" (quotations omitted). Connor v. Marriott
Int'l, Inc., 103 Mass. App. Ct. 828, 836 (2024). Lindsey's
negligent misrepresentation satisfied all three of these
conditions. Indeed, "we decided some years ago that 'negligent
misrepresentation of fact the truth of which is reasonably
capable of ascertainment is an unfair and deceptive act or
practice within the meaning of c. 93A, § 2 (a).'" Golber v.
BayBank Valley Trust Co., 46 Mass. App. Ct. 256, 261 (1999),
quoting Glickman v. Brown, 21 Mass. App. Ct. 229, 235 (1985).
See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 62
(2004). The jury's finding of negligent misrepresentation,
supplemented by the judge's findings that the Campbells' conduct
was "a bit sleazy," and that they hoped to save money by
sneaking an "extremely weak" (albeit "nonfrivolous") claim past
the Buccis, was sufficiently "extreme or egregious" to qualify
as a c. 93A violation. See O'Connor v. Merrimack Mut. Fire Ins.
Co., 73 Mass. App. Ct. 205, 216-217 (2008).
In addition, "a breach of the implied covenant of good
faith and fair dealing may constitute an unfair or deceptive act
or practice for the purposes of G. L. c. 93A." Massachusetts
12 Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 43
(1995). The jury's finding that the Campbells breached the
implied covenant of good faith and fair dealing, supplemented by
the judge's finding that they did so for their own economic
advantage, compels the conclusion that their conduct was
deceptive as a matter of law. See Columbia Plaza Assocs. v.
Northeastern Univ., 493 Mass. 570, 587 (2024), quoting Anthony's
Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 474 (1991)
("Business conduct 'in disregard of known contractual
arrangements' and aimed at securing benefits for the breaching
party is an unfair act or practice under G. L. c. 93A"). See
also Anthony's Pier Four, Inc., supra (agreeing that judge's
rulings finding violation of covenant of good faith and fair
dealing but denying c. 93A claim "cannot be squared").
The Campbells' conduct was also "unfair." "We have stated
that a practice or act will be unfair under G. L. c. 93A, § 2,
if it is (1) within the penumbra of a common law, statutory, or
other established concept of unfairness; (2) immoral, unethical,
oppressive, or unscrupulous; or (3) causes substantial injury to
competitors or other business people." Connor, 103 Mass. App.
Ct. at 834-835, quoting Heller Fin. v. Insurance Co. of N. Am.,
410 Mass. 400, 408 (1991). In this regard, the Attorney General
defines "fail[ure] to disclose to a buyer or prospective buyer
any fact, the disclosure of which may have influenced the buyer
13 or prospective buyer not to enter into the transaction" as a
violation of c. 93A. 940 Code Mass. Regs. § 3.16(2) (2020).
The Campbells' failure to fully disclose their reluctance to pay
for installation of a natural gas line or their intent to allow
the contractor to lay the binder coat without first installing
the gas line also amounted to an unfair business practice.
Based on the subsidiary facts found by the judge, and
applying de novo review of his legal conclusions, judgment
should have entered for the Buccis on their c. 93A claim. By
contrast, the ambivalence of the judge's findings -- pronouncing
the Campbells' conduct to be "sleazy," yet not rising to the
level of a c. 93A violation -- does not compel the legal
conclusion that the Campbells' "use or employment of the act or
practice was a willful or knowing violation" requiring multiple
damages. G. L. c. 93A, § 9 (3).
Chapter 93A does not mandate multiple damages for negligent
misrepresentations. See Hyannis Anglers Club, Inc. v. Harris
Warren Commercial Kitchens, LLC, 91 Mass. App. Ct. 555, 561
(2017); VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct.
610, 623 (1994). "To be wilful or knowing, a violation need not
be malicious, but must constitute more than negligence. Within
that range is conduct that is intentionally gainful, . . . or
demonstrates a wilful recklessness or conscious, knowing
disregard for its likely results" (quotation omitted). Chiulli,
14 97 Mass. App. Ct. at 260. As the judge's subsidiary findings do
not conclusively demonstrate intentional conduct, contrast
Hyannis Anglers Club, Inc., supra, we remand the case for
further findings, and the taking of further evidence if
necessary, to determine whether to impose multiple damages.
Conclusion. The case is remanded for entry of judgment in
favor of the Buccis on their c. 93A claim; for further findings
as to whether the Campbells' conduct rose to the level of a
willful or knowing violation warranting multiple damages under
G. L. c. 93A, § 9 (3); and for an award of reasonable attorney's
fees under G. L. c. 93A, § 9 (4). In all other respects, the
judgments are affirmed. We allow the Buccis' request for an
award of their reasonably incurred appellate attorney's fees and
costs, limited to those fees and costs incurred in connection
with their c. 93A claim. The Buccis may file with the clerk of
this court materials detailing and supporting the requested
award within fourteen days of the issuance of this decision, in
15 accord with the procedure outlined in Fabre v. Walton, 441 Mass.
9, 10-11 (2004). The Campbells shall have fourteen days
thereafter to respond.
So ordered.
By the Court (Rubin, Massing & Grant, JJ. 9),
Clerk
Entered: February 24, 2025.
9 The panelists are listed in order of seniority.