Opinion
16-P-566
08-07-2017
Nora M. BOYLE & another v. Angela MIRRER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The disputes in this case arise from a barter agreement between a construction contractor, John T. Boyle (Boyle), and a home renovator, Angela Mirrer. Following partial summary judgment and a jury trial, the Superior Court entered judgment for Boyle on his claims for intentional interference with contractual relations, unfair or deceptive acts or practices (G. L. c. 93A), and quantum meruit, with an offset for so much of Mirrer's counterclaim as sought reimbursement for financial advances she made for Boyle. Mirrer appeals. For the reasons set forth below, we vacate the judgment and the amended judgment and remand for further proceedings.
Background. We recite the facts as the jury could have found them from the evidence in its aspect most favorable to the plaintiff. Graci v. Damon, 6 Mass. App. Ct. 160, 161-163 (1978). Mirrer is a home renovator who, prior to this dispute, had a longstanding, friendly business relationship with Boyle, a general contractor. Except for their first work agreement, they relied solely on oral contracts. In early 2010, Boyle decided to pursue his first "tear down" project, which would entail purchasing a property, demolishing the existing structure, constructing a custom home, and selling it. With Mirrer's help, he identified a property at 73 Oak Cliff Road in Newton (the property) for his project, and he purchased it in or about September, 2010.
Title to the property was taken by his wife, Nora M. Boyle, as trustee of the 73 Oak Cliff Road Realty Trust.
Although Boyle personally performed and oversaw much of the work, he relied extensively on Mirrer for assistance. She made particular contributions as to design, fixture selection, and aesthetic details. The parties agreed she would be compensated through a barter arrangement whereby, in exchange for her services, Boyle would renovate a portion of her residence, without charging her for his time. Originally, he agreed to renovate her kitchen, which was quite large, but for logistical reasons, the parties later agreed that he would renovate the master suite instead. After Mirrer sent Boyle an electronic mail message (e-mail) in April, 2011, stating her dissatisfaction with not being compensated financially, he agreed to renovate both the kitchen and the master suite.
Mirrer would still have to pay for the cost of materials and for any workers besides Boyle.
In July, 2011, with construction on the property nearing completion, Boyle found himself low on funds, and Mirrer agreed to advance him up to $30,000. She advanced $27,905.05, which included $21,097.77 in direct payments to subcontractors and suppliers, and $6,807.28 in charges she allowed him to make on her credit card. In August, 2011, Boyle completed his work and listed the property for sale.
Early the next year, Boyle found a buyer for the property, and on March 10, 2012, executed a purchase and sale agreement with a closing date set for March 28. The sale did not close on that date because Mirrer, who was aware of the pending sale, and who now asserted an implied contract to be compensated financially, placed a mechanic's lien on the property, claiming that she was owed nearly $180,000 for her services. On March 26, one week after the lien was filed, Boyle filed a complaint in Superior Court and a motion to discharge the lien. Mirrer filed a cross-motion to have the proceeds of the sale put in escrow. The motion judge, who presided over the remainder of the case, ordered that, should Mirrer voluntarily withdraw the lien, Boyle must put $75,000 of the sale proceeds in escrow. She did so, and the sale closed on April 23, 2012.
Following amendments to the pleadings and discovery, Mirrer prevailed, on partial summary judgment, on a counterclaim for reimbursement of the $27,905.05 she had advanced to Boyle. In his memorandum of decision, the judge noted that, as to the direct payments made by Mirrer, Boyle had promised to "repay [her] with interest when the property was sold or as soon thereafter as possible." As to the credit card charges, the judge noted that the parties had entered into a written agreement on July 17, 2011, in which Boyle agreed to reimburse Mirrer "to the fullest, including interest fees," for all purchases made on Mirrer's Home Depot credit card. He further found that "after the expiration of a promotional period, the balance on the credit card was subject to approximately an 18% interest rate." Boyle did not reimburse Mirrer promptly after the closing. The judge wrote that Boyle did not seriously "dispute any of Ms. Mirrer's proffered expenses," but "is only willing to discuss a settlement of the entire lawsuit and refuses to pay that which he has admitted he owes." Boyle eventually paid Mirrer the principal amount of $27,905.05 in March, 2014, a few days after the entry of the partial summary judgment order. In his memorandum of decision, the judge stated that "[t]here is insufficient information for the Court to determine the amount of interest currently due to Ms. Mirrer."
In late May and early June a jury trial was held on the remaining claims. In answers to special questions, the jury found for Boyle on his claims of intentional interference with contractual relations, unfair or deceptive acts or practices, and for quantum meruit damages related to certain work he performed at Mirrer's home. With one exception discussed below, the jury also found for Boyle on the remaining counts of Mirrer's counterclaim. Mirrer appeals.
Discussion. 1. Liability under c. 93A. "[T]he boundaries of what may qualify for consideration as a c. 93A violation is a question of law." Schwanbeck v. Federal-Mogul Corp., 31 Mass. App. Ct. 390, 414 (1991). Here, Mirrer's liability was premised on her placing a lien on the property in order to exact a monetary payment not owed to her under the barter agreement, using as leverage the implicit threat to scuttle the sale. We have little trouble concluding that such conduct, if proven, falls within the boundaries of consideration as a c. 93A violation. See Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 505 (1997).
Mirrer contends, however, that the evidence showed only that the parties had a genuine dispute as to whether she had a contract for payment, and in that light, her filing of the lien was an appropriate act undertaken to protect her economic self-interest. Cf. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816-817 (1990) (privileged conduct may not be improper for the purposes of intentional interference with contractual relations). Such behavior, she says, could not support a c. 93A violation as matter of law. See Aggregate Indus.—Northeast Region, Inc. v. Hugo Key & Sons, Inc., 90 Mass. App. Ct. 146, 152 (2016) ("Ordinary contract disputes ... typically fall outside the reach of [c. 93A]"). This argument, however, is based on a view of the facts different from those found by the jury.
She points to e-mails and other handwritten notes as sufficient to establish a contract for payment, or at least presenting a genuine dispute as to the existence of such a contract.
"A verdict must be sustained if '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 plaintiff." Meyer v. Wagner, 57 Mass. App. Ct. 494, 499 (2003), quoting from Service Publ., Inc. v. Goverman, 396 Mass. 567, 571 (1986). Here, the jury expressly found that a barter agreement existed, covering "all" services Mirrer rendered in connection with the project, and the evidence was sufficient for them to reject her theory and instead conclude that she acted with improper motives.
We briefly address two related arguments Mirrer raises. First, she claims the special questions were phrased so as to "predetermine [ ]" liability. We decline to consider this argument because Mirrer waived it by failing to raise an objection at trial. Scott v. Boston Hous. Authy., 56 Mass. App. Ct. 287, 297 (2002). Second, she claims that the judge had already found that her contentions had sufficient merit because, when he ruled on the parties' cross-motions for temporary relief, he did not order her to discharge the lien, but rather ordered Boyle to place $75,000 of the sale proceeds in escrow if she did so voluntarily. This argument is unavailing. The judge was free to reconsider his earlier views, which were made within the first month of litigation and prior to any meaningful discovery. Potter v. John Bean Div. of Food Mach. & Chem. Corp., 344 Mass. 420, 427 (1962) ("law of the case" is a permissive, not mandatory, doctrine).
2. Damages under c. 93A. The trial judge submitted the c. 93A claim to the jury on a nonbinding, advisory basis. Acushnet Fed. Credit Union v. Roderick, 26 Mass. App. Ct. 604, 606 (1988). In answers to special questions, the jury found that Mirrer violated c. 93A, that Boyle suffered actual damages of $19,264.45, that Mirrer's conduct was wilful or knowing, and that double damages were appropriate. The judge adopted the jury's finding as to liability and as to the violation being knowing or wilful, but it is unclear how he calculated damages. In the judgment, Boyle was awarded both actual damages and double damages, a sum that equals treble damages. Mirrer claims that such an award was error because Boyle is entitled to either actual damages or multiple damages, but not both. See G. L. c. 93A, § 11 ("recovery shall be in the amount of actual damages; or up to three, but not less than two, times such amount if the court finds that the use or employment of the method of competition or the act or practice was a willful or knowing violation" [emphasis added] ). However, the argument ignores the possibility that the judge intended to exercise his discretion to award Boyle treble damages—an outcome that we are unable to divine from this record. However, we need not resolve this issue because we are remanding for other corrections to the judgment.
By the language of the special question, the jury were permitted to award "no less than twice, nor more than three times the amount" of the actual damages they had previously found. The response of "(2x) $19,264.45 [=] $38,528.90" indicates clearly that the jury award was double, not treble, damages.
3. Prejudgment interest under c. 93A. Prejudgment interest on Boyle's c. 93A claim was calculated on the multiple damages award for that claim rather than on actual damages. The parties agree that this was an error. McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 718 (1990).
Boyle argues that this is a moot issue because, on remand, the judge would allow a motion to recalculate the c. 93A damages based on his claim for intentional interference with contractual relations. Under this approach, he argues, prejudgment interest would attach prior to the award being multiplied. Boyle bases his theory on another sentence of § 11, which states that "the amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence."
This contention is speculative, and misinterprets the quoted language, which was added to the statute in 1989 (St. 1989, c. 580, § 2), in response to a prior line of cases, in order to "increase the potential penalties for insurers who engaged in unfair claim settlement practices...." Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 498 (2012). It applies in cases where a distinct, separate judgment has entered, such as where an injured party recovers a judgment on underlying claims, and then prevails on a c. 93A claim against an insurer for failing to effectuate a prompt, fair, and equitable settlement. See, e.g., R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66 (2001). It does not apply here, where there is no "judgment" reflecting an "amount" in existence at the time the amount of this judgment is being calculated.
4. Duplicative damages. The jury found that Boyle's actual damages under c. 93A were $19,264.45. The jury separately found an identical amount for his actual damages for intentional interference with contractual relations. Mirrer argues that, because both sums were included in the judgment, Boyle was improperly awarded duplicative damages. Duplicative damages are not permissible, but if the claims were based on "factually separable and distinguishable" acts, separate recoveries are proper. Calimlim v. Foreign Car Center, Inc., 392 Mass. 228, 235-236 (1984). In the context of a jury trial, we may consider whether the party who allegedly received duplicative damages argued distinct factual foundations for liability, and whether the judge instructed the jury on duplicative damages. Costa v. Brait Builders Corp., 463 Mass. 65, 75 (2012).
At trial, Boyle did not argue distinct, separable factual predicates for the two claims. The tort claim was based on Mirrer's filing of the mechanic's lien, an act which also formed the essential core of the c. 93A claim. To the extent other facts also bore on Mirrer's liability under c. 93A, that claim nevertheless subsumed all facts relevant to the tort claim; although some distinctions may have existed, substantial similarities also existed such that the claims remained inseparable. Considering the identical awards, and the absence of any jury instruction on duplicative damages, we conclude that the tort damages were duplicative. Accordingly, the award of damages for intentional interference with contractual relations should be vacated in favor of the larger recovery on the c. 93A claim. See Calimlim, supra.
5. Inconsistent verdict. In the special verdict form, the jury expressly found that a barter agreement existed under which Boyle would perform renovation work for Mirrer in exchange for all of her services. The jury also found Mirrer liable to Boyle for quantum meruit damages based on the value of certain work that he did, a seemingly inconsistent result, as Mirrer points out. Boyle responds that these damages represent the value of work he did beyond the scope of the barter agreement. We need not address the issue because Mirrer waived her argument by failing to object to the verdict as inconsistent before the jury were discharged. Tosti v. Ayik, 394 Mass. 482, 495 (1985).
6. Interest on Mirrer's counterclaim. As noted, Mirrer prevailed on a pretrial motion for partial summary judgment, establishing Boyle's liability for "$27,905.05, plus interest," i.e., for reimbursement of financial advances she made, by direct payments and by credit card, as Boyle was finishing work on the property. In his ruling, however, the judge found there was "insufficient information" to establish "the amount of interest." Five days after the summary judgment decision, on March 20, 2014, Boyle paid Mirrer the principal amount he owed on the advances. At trial Mirrer argued that, under their agreement, she was contractually entitled to ten percent interest on cash and credit card advances. As to the latter advances, she argued further that this contractual rate was in addition to the eighteen percent interest charged by her credit card provider. In answers to special questions, the jury rejected her claim of ten percent contractual interest, but found that Boyle was liable for eighteen percent interest on the credit card advances. The judgment, however, did not reflect an award to Mirrer of interest of any kind.
First, we note that the failure to award prejudgment interest on the sum of $27,905.05 may have been inadvertent. The calculation and imposition of prejudgment interest pursuant to G. L. c. 231, § 6C, is "a ministerial act" and generally "attaches automatically." O'Malley v. O'Malley, 419 Mass. 377, 381 (1995). Here, the relevant portion of the judgment awarded $27,905.05 to Mirrer "for out of pocket costs expended.... As to the balance of this claim, Mirrer is awarded no interest based on the jury response to special question (26) and findings in favor of the Boyles." It seems clear to us that, in context, the reference to "no interest" applies only to the "interest" that Mirrer had sought to recover in connection with the parties' 2011 agreement concerning her monetary advances (i.e., "the balance of this claim"), and was not intended to preclude the award of prejudgment interest.
Ordinarily, prejudgment interest on a counterclaim based on contract runs from the date of the counterclaim to the date of payment of the principal. See Pettingell v. Morrison, Mahoney & Miller, 426 Mass. 253, 259 (1997).
Second, as to the $6,807.28 in credit card charges, Mirrer claims entitlement to additional damages of $3,249.60 representing interest (at eighteen percent) charged by her credit card provider. In an answer to a special question, the jury found that Boyle was "liable for the 18% interest rate charged to Mirrer on the Home Depot Credit Card." There was no subsequent question that asked the jury to find the amount of such liability. However, it may be that the amount was not in dispute. In any event, considering the judge's finding that the parties had entered into a written agreement in which Boyle promised to pay for credit card charges "to the fullest, including interest fees," and the jury's finding of liability, on remand Mirrer should be afforded the opportunity to show whether the amount of credit card interest was established at trial or otherwise agreed to, and, if so, whether she is entitled to recover such interest as damages.
If she is so entitled, Mirrer would also be entitled to prejudgment interest on that sum, which remains unpaid.
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Conclusion. For the reasons set forth above, the judgment dated June 11, 2014, and the amended judgment dated January 7, 2016, are vacated. The matter is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded.