Opinion
No. 063453.
June 11, 2009.
The Court treats this motion as one for summary judgment. See: Northern Associates, Inc. v. Kiley, 57 Mass.App.Ct. 874, 883-84 (2003).
The "proposal" and/or the oral agreement was accepted by the Murphys so there was indisputably a contract which the Murphys contend was not adequately performed and which the Murphys contend failed to conform with the requirements of c. 142A. However, although c. 142A, § 17 makes a violation of c. 142A a per se violation of c. 93A, courts have generally found violations of G.L.c. 142A sufficient to support a G.L.c. 93A claim for unfair or deceptive trade practices only when a contractor has also violated a statute or ordinance independent from Chapter 142A. Harrison Construction, LLC v. Cirurgiao, No. 2006-880-C, 2007 WL 3244314, at *3 n. 5 (Mass.Super. Oct. 22, 2007) [23 Mass. L. Rptr. 272]. Here, the Murphys do allege under oath such a violation (deposition of Jerome Murphy, day two), thus raising a disputed issue of material fact.
Violations of G.L.c. 142A have also been found insufficient to support a claim for unfair or deceptive trade practices where the contractor actually performed pursuant to a valid contract, id., citing Mellin v. Tettleback, 1997 Mass.App.Div. 70, 71 (1997), but here the Murphys contend under oath that the contract was not substantially performed ( id.), raising an additional issue of disputed fact.
Therefore, on this record, there are disputed issues of facts as to whether Killian corporation substantially performed the contract and as to whether a "statute or ordinance independent of c. 142A" was violated.
ORDER
Accordingly, Killian Corporation's motion in limine to preclude and to dismiss the Murphys' G.L.c. 93A claims is DENIED.