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
24-P-88
WICKED-LITE SUPPLY, INC., & another 1
vs.
WOODFOREST LIGHTING, INC., 2 & others. 3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Wicked-Lite Supply, Inc. (Wicked-Lite) purchased
approximately 5,500 T5N LED integrated lamps (light fixtures or
lights) from Woodforest Lighting, Inc. (Woodforest). After
approximately one-half of the lights were installed by Wicked
Watts, Inc. (Wicked Watts), it was discovered that many of them
were not working properly. Kelly Cota, the owner and president
of both Wicked Watts and Wicked-Lite (collectively, Wicked),
contacted Woodforest about the problem. When Woodforest
provided replacement lights that were not compatible and could
1 Wicked Watts, Inc.
2 Doing business as Forest Lighting USA.
3 Ledvance, LLC, and MLS Co., Ltd. not be installed, Wicked sued Woodforest and its parent company,
MLS Co., Ltd. (MLS), for breach of warranty, breach of the
implied warranty of merchantability, misrepresentation, and
violation of G. L. c. 93A, § 11. 4
Following a trial in Superior Court, the jury found in
favor of Wicked on its breach of warranty claim against
Woodforest, and on its claims of misrepresentation and violation
of c. 93A against both Woodforest and MLS. The jury found
against Wicked on its claim for breach of the implied warranty
of merchantability. In a posttrial memorandum and order, the
judge credited the jury's findings that both Woodforest and MLS
knowingly and willfully engaged in unfair and deceptive acts or
practices and entered judgment tripling Wicked's damages under
c. 93A. Because Wicked prevailed on its c. 93A claims, the
judge also awarded attorney's fees and costs. On appeal, the
defendants argue that (1) a transmittal e-mail message from a
Woodforest employee, and a test report attached to it stating
that a sample of the lights were faulty, were improperly
admitted in evidence; (2) the alleged conduct did not rise to
4 The plaintiffs also brought claims against Ledvance, LLC (Ledvance), a company that produced lights for MLS. Ledvance's motion for a directed verdict was allowed as to all claims and Wicked did not file a cross appeal. Consequently, Ledvance is not a party to this appeal.
2 the level of a c. 93A violation; and (3) multiple damages under
c. 93A were not warranted. We affirm.
Background. The lights at issue were purchased or replaced
between December 2016 and August 2018. After approximately
2,700 lights were installed in various commercial, laboratory,
and college spaces in Massachusetts, many of them began to
flicker and then fail. At trial, Cota acknowledged that it was
"not uncommon . . . to have one or two fixtures fail . . . and
. . . fail quickly" by not turning on after installation.
However, as Cota went on to explain, she became "alarm[ed] . . .
that we started seeing failures increasing," and that the
fixtures at issue "started flickering, and then they would
eventually burn out." On July 24, 2018, Cota sent an e-mail
message to Woodforest and complained. Steven Dore, a Woodforest
employee, responded and suggested that the problems were caused
by installation or "sine wave" issues. Wicked then checked
various project sites for voltage spikes and dimmer concerns but
found none. The problems continued after Wicked ruled out site
and installation-related issues. Cota testified that "[clients
were] calling us back saying [the lights were] failing, they're
flickering." She said that she "kept having more and more
conversations" with Dore about the issues, who continued to
insist that there was no problem. The failures, first seen at
two to three sites, now affected five to six different projects
3 and posed safety issues in places where lights were required to
remain on at all times.
Woodforest then offered to replace the lights with a new
(second-generation) fixture and sent several of these fixtures
to Wicked between June and August 2018. However, the new lights
were not the right voltage and were not compatible with the
existing lights at the various projects. Thus, despite being
sent what were represented as replacements, Wicked could not
install them. Cota testified that she repeatedly notified
Woodforest of these issues. She stated that on one occasion, "I
called them and I said these don't mount together, they are not
even the exact same connecting points, . . . [and] they said,
well, it's close enough. And I said it's not close enough, it's
not going to work." On another occasion, a Wicked employee,
Mike Federici, sent an e-mail message to Dore asking, "[c]an we
assume that . . . the new version [of the fixtures] cannot be
connected to the first version or gen one in series," to which
Dore responded "[t]hat's correct."
Faced with increased pressure from her clients and threats
of lawsuits, Cota pressed Woodforest for information about what
could have caused the lights to fail. On September 18, 2018,
Dore sent Cota an e-mail message to which he attached a "test
report," dated March 29, 2017, from Applied Technical Services,
Incorporated (ATS report or report). The subject of the report
4 concerned testing conducted on eight lamps by ATS to determine
the cause of the "problems with flickering." The tests revealed
that "[f]ive of the eight lamps were found to be faulty and
produced a stroboscopic flicker when powered." In his e-mail
message to Cota and Federici, Dore confirmed that "[t]he report
pointed out three specific components causing the flickering."
He went on to advise her that "we can tell the customer . . .
that we have switched to a new vendor with a more reliable
component supplier[] to eliminate any high rate of failures."
Cota related that upon receiving the message, "she f[e]ll off
her chair." As she explained, "I've been in the lighting
industry for 32 years. This is a certified test laboratory,
independent from [Woodforest], from myself, from everybody. So
[Woodforest] took this upon themselves." She then called Dore
and accused him of selling her a product "knowing that it was
bad." Cota claimed that Dore responded, "I don't know what to
say to you . . . [l]et me call [president of Woodforest] Jian Ni
and see what we can do."
Additional discussions between Cota and Woodforest did not
resolve the issue. Cota testified that she felt like "a hamster
on a wheel." At one point, Jian Ni wrote to MLS and stated that
the company would not be able to replace the fixtures. He
expressed the view that Cota should be compensated, saying: "I
think the most viable solution[] is to fully credit them . . .
5 and offer certain monetary compensation to conclude this issue."
Ultimately, Woodforest offered Wicked free fixture replacements,
and, if it could not adequately supply them, offered to provide
Wicked with lights manufactured by Ledvance, a company recently
acquired by MLS. Despite the offer and the previously-noted
issues with Woodforest's replacements, Cota testified that she
was never provided with anything from Ledvance. Eventually,
Wicked replaced the lights with new ones purchased from a
different company.
At the close of evidence, MLS, but not Woodforest, moved
for a directed verdict, which the judge denied. As noted, the
jury found in favor of the plaintiffs for breach of warranty and
misrepresentation, but did not find a breach of the implied
warranty of merchantability. With respect to the c. 93A claims,
which were submitted to the jury on an advisory basis, the jury
found that Woodforest and MLS had engaged in unfair or deceptive
acts or practices in trade or commerce and that such acts were
knowing and willful. 5
5 Specifically, for each defendant, the jury answered "Yes" to the questions: (1) "Did [plaintiffs] prove that [defendant] engaged in one or more unfair or deceptive acts or practices in trade or commerce?"; (2) "Did [plaintiffs] prove that the unfair or deceptive act(s) or practice(s) . . . were knowing or willful?"
6 After trial, MLS, but not Woodforest, filed a motion for
judgment notwithstanding the verdict, and Wicked moved for
findings of fact and rulings of law on the c. 93A counts.
Following a hearing, the judge denied MLS's motion, and as
previously discussed, adopted the jury's findings that both
defendants had knowingly and willfully engaged in unfair or
deceptive acts or practices before entering the judgment
described above.
Discussion. 1. Admission of the transmittal e-mail
message and ATS report. 6 The defendants objected to the
admission of Dore's e-mail message and the ATS report at the
beginning of the trial. They asserted that both documents
contained hearsay, and the report could not be authenticated.
The judge overruled the defendants' objections but limited the
purpose for which the jury could consider the report to the
defendants' states of mind. The judge gave the jury a limiting
instruction when the report was introduced during Cota's
testimony, as follows:
"this particular document . . . is admitted for a limited purpose, okay? It is not admitted for the truth of the
6 Wicked contends that the arguments regarding the admissibility of the e-mail message and report are waived because (1) as to Woodforest, it did not move for a directed verdict or judgment notwithstanding the verdict, and (2) as to MLS, its motions for a directed verdict and judgment notwithstanding the verdict did not raise the issue. While both points have some validity, the parties have briefed the issue, and we choose to address it.
7 information contained in it. It is admitted for the purpose of establishing what was known or what the mindset was of [Woodforest], okay, at a particular time, the information known to [Woodforest], not as to the truth of what's contained in it."
When the report was discussed again during Cota's testimony the
next day, the judge reiterated, "I'll clarify and remind you,
this is not admitted for the truth of the matters contained in
it; it's admitted for the purpose of showing knowledge; that is
to say, what was known by the parties in connection with this
case." Finally, during his final instructions to the jury, the
judge again referred to the report and said "[the report] was
introduced for a limited purpose; it was not introduced for the
truth of the statements contained in the report. Instead, it
was admitted on the limited issue of what was known to
Woodforest Lighting at the particular time about the particular
product." We discern no error.
"We review a trial judge's evidentiary decisions under an
abuse of discretion standard." Laramie v. Philip Morris USA
Inc., 488 Mass. 399, 414 (2021). An abuse of discretion occurs
when the judge makes a clear error of judgment in weighing the
relevant factors such that the decision falls outside the range
of reasonable alternatives. See Quarterman v. Springfield, 91
Mass. App. Ct. 254, 260, cert. denied, 583 U.S. 1013 (2017).
We first turn to the defendants' hearsay argument. The
rule against hearsay prohibits the use of out-of-court
8 statements as proof of the matter asserted. See Laramie, 488
Mass. at 415. However, not every out-of-court statement
violates the rule. Where, as here, the statement at issue is
offered to establish a state of mind, it is not admitted for the
truth of the matter asserted and therefore is not hearsay. In
this instance, the judge specifically admitted the report not as
proof that the lights were faulty but instead to demonstrate
that Woodforest was aware of the potential for failure. See
Pardo v. General Hosp. Corp., 446 Mass. 1, 18 (2006) ("[a]n
extrajudicial statement is not hearsay when offered to prove
that the person to whom it was addressed had notice or knowledge
of the contents of the statement" [citation omitted]). The
judge instructed the jury to this end when the report was
admitted, again when the report was brought up later in trial,
and during his final jury instructions. See id. at 19 (state of
mind evidence properly admitted, and limiting instructions
ensured that jury would not find evidence "necessarily true").
As to the e-mail message, contrary to the defendants'
assertion that it consisted of hearsay within hearsay, the
message was a statement from a party opponent, and its reference
to the properly-admitted report had no bearing on its
admissibility. See Hopkins v. Medeiros, 48 Mass. App. Ct. 600,
613 (2000) ("evidence of [defendant's] admission to sufficient
facts was admissible as an admission of a party opponent");
9 Mass. G. Evid. § 801(d)(2)(A) (2024) (statement not hearsay
where it "is offered against an opposing party and . . . was
made by the party").
Next, the defendants argue that neither the e-mail message
nor the report was properly authenticated and, consequently,
neither document should have been admitted at trial. As an
initial matter, it is true, as the defendants assert, that the
judge did not make any specific findings regarding authenticity.
However, the absence of such findings does not amount to
reversible error in the circumstances presented. As regards the
e-mail message, it was evident from the record that it
originated from a Woodforest employee with whom Cota had regular
contact -- via e-mail. After Cota received the message from
Dore, she called him and discussed the contents of the e-mail
message and report. She told him that he knowingly sold her a
defective product, and he responded that he would call Ni and
"see what we can do." Dore's statements to Cota acknowledging
the contents of the e-mail message served as "confirming
circumstances" that allowed the jury to find by a preponderance
of evidence that Dore authored it. Commonwealth v. Purdy, 459
Mass. 442, 450 (2011). Accordingly, the admission of the e-mail
message was not an abuse of discretion.
The report, however, stands on a different footing. No one
from ATS testified, and although Cota's testimony established
10 that she received the report from Dore, there was no evidence to
establish that the report was what it purported to be. That
said, even if it was error to admit the report, there was
sufficient additional properly-admitted evidence on which the
jury could find liability and the judge could find that the
defendants had violated c. 93A. Apart from the report, Cota's
testimony and additional e-mail messages between employees of
the parties established that the defendants sent light fixtures
that failed, attempted to replace the defective lights with ones
that were not compatible -— a fact which the defendants
ultimately acknowledged, did not send additional lights after
switching to a new vendor, and took no further corrective action
even after Ni suggested that a refund was appropriate. In light
of this evidence, we cannot conclude that the defendants were
materially prejudiced by the admission of the report, which we
again note was admitted for only a limited purpose.
Accordingly, any error relating to the admission of the report
does not warrant reversal. See generally Kace v. Liang, 472
Mass. 630, 646 (2015).
2. General Laws c. 93A. The defendants argue that the
judge erred in accepting the jury's advisory verdicts and
subsequently concluding that they engaged in unfair and
deceptive practices in violation of c. 93A. They contend that
their conduct amounted to no more than (or at best) an ordinary
11 breach of contract. They further claim that because the jury
found no breach of the implied warranty of merchantability, the
jury necessarily rejected the premise that Woodforest knowingly
sold a product that it knew or should have known was defective.
We conclude otherwise.
"Whether an act or practice violates c. 93A is based on the
totality of the circumstances." Connor v. Marriott Int'l, Inc.,
103 Mass. App. Ct. 828, 833 (2024). While a mere breach of
contract does not amount to a 93A violation, see H1 Lincoln,
Inc. v. South Washington St., LLC, 489 Mass. 1, 25 (2022), we
have said that practices "do not have to attain the antiheroic
proportions of immoral, unethical, oppressive, or unscrupulous
conduct, but need only be within any recognized or established
common law or statutory concept of unfairness." VMark Software,
Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 620 (1994).
In this case, the judge's findings that the defendants had
violated c. 93A were based on conduct distinct from any breach
of contract or related warranty issue. As the judge explained
in his posttrial memorandum and order, Woodforest knew or should
have known that the lights were defective, and, despite this
knowledge, continued to sell the products to Wicked. Then, its
"purported remedy," approved by MLS, was to "knowingly provide
alternative fixtures that would not fit and were not suitable
for the use to which they were to be put." In addition,
12 although the judge did not specifically refer to Woodforest's
repeated and unfounded assurances that nothing was wrong with
the lights, this conduct also establishes a violation of c. 93A.
In sum, we agree with the judge that the facts provided a
sufficient basis for the award of c. 93A damages. See Baudanza
v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 (2009) (we do
not substitute our judgment for that of trial judge who observed
witnesses).
For similar reasons, we reject the defendants' claim that
the evidence was insufficient to support the judge's findings
that their unfair and deceptive conduct rose to the level of a
willful and knowing violation, such that tripling the damages
was justified. "Under G. L. c. 93A, § 11, [a plaintiff] is
entitled to multiple (not more than treble and not less than
double) damages if [the defendant] acted 'knowingly' or
'wil[l]fully' in violation of [G. L. c. 93A,] § 2." Anthony's
Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 475 (1991). A
judge's decision to award multiple damages for a violation of
c. 93A is "based on the egregiousness of the defendant's
conduct" (citation omitted). Hug v. Gargano & Assocs., P.C., 76
Mass. App. Ct. 520, 527 (2010). In reviewing an award of
multiple damages under c. 93A, "we are bound by a judge's
findings of fact that are supported by the evidence, including
all inferences that may reasonably be drawn from the evidence."
13 Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 183
(2013), quoting Twin Fires Inv., LLC v. Morgan Stanley Dean
Witter & Co., 445 Mass. 411, 420 (2005).
As previously noted, the judge did not err in crediting the
jury's advisory verdicts, which were based on evidence that
Woodforest (1) sold a product which it knew or should have known
was defective, (2) misrepresented the underlying problem with
the lights for months, and (3) under the direction of MLS,
attempted to replace that product with fixtures that they both
knew were not suitable. That conduct was sufficiently egregious
to warrant the imposition of multiple damages. 7
Where, as here, the evidence supports the judge's
conclusion that the defendants' behavior was intentional and
willful, we do not disturb his award of treble damages. See Hug
76 Mass. App. Ct. at 528 ("the trial judge, who is in the best
position to view the evidence and assess the credibility of the
7 The defendants' reliance on VMark, 37 Mass. App. Ct. at 623-624, in support of their positions that their efforts "to address and remediate the product issues belie the notion that their conduct required multiple damages," is misplaced. In VMark, supra at 622, we concluded multiple damages were not appropriate because the defendant "acted in good faith in its dealings with [plaintiff], that it fully expected that [the product] would function as represented, and that it was persistently ready and willing, though ultimately unable, to correct [its] shortcomings." By contrast, Woodforest's attempt to remedy the problem did not reflect the type of good faith present in VMark.
14 witnesses, [has] discretion in determining the award"); Brewster
Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.
App. Ct. 582, 608 (2007) ("[s]o long as that [willful and
knowing] finding stands, an award of multiple damages
ineluctably flows from the plain language of the statute"). 8
3. Appellate attorney's fees. The plaintiffs have
requested and are entitled to an award of appellate attorney's
fees and costs. See G. L. c. 93A, § 11. They may submit a
petition for fees and costs with supporting materials, in
accordance with the procedure set forth in Fabre v. Walton, 441
Mass. 9, 10-11 (2004), within fourteen days of the date of this
decision. If the defendants choose to respond, they shall have
fourteen days within which to do so.
Judgment affirmed.
By the Court (Vuono, Hershfang & Tan, JJ. 9),
Clerk
Entered: May 19, 2025.
8 Moreover, contrary to the defendants' assertion, the absence of specific subsidiary findings with regard to the c. 93A claims does not undermine the judge's conclusions. "A judge need not make an express finding that a person wil[l]fully or knowingly violated G. L. c. 93A, § 2, as long as the evidence warrants a finding of either" (citation omitted). Anthony's Pier Four, 411 Mass. at 475. 9 The panelists are listed in order of seniority.