Opinion
No. 12–P–1071.
2013-09-10
Robert C. MORAN & another v. Alberto M. GALA & another.
By the Court (VUONO, CARHART & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In Moran v. Gala, 66 Mass.App.Ct. 135 (2006) ( Moran I ), we affirmed the Land Court summary judgment in favor of the defendants, Alberto M. and Mary J. Gala (collectively, the Galas), holding that principles of equitable estoppel barred the plaintiffs, Robert C. and Susan Moran (collectively, the Morans), from bringing an action of adverse possession and trespass against their neighbors, the Galas. That appeal involved only a portion of the parties' litigation, the consideration of the Galas' counterclaim (misrepresentation and violation of G.L. c. 93A, § 9) having been transferred to the Superior Court. After a jury-waived trial, the Superior Court judge resolved the counterclaim in favor of the Galas. The Morans now appeal from the resulting judgment. We affirm in part and reverse in part. Background. The basic facts are set out in Moran I. Briefly, Attorney Robert C. Moran, acting as sellers' attorney in the sale of the residential property of his next-door neighbors, the Stowes, and also acting in an agency capacity for his wife Susan Moran, withheld from the Galas (the buyers) certain facts about the Morans' interest in the land which later gave rise to the Morans' adverse possession claim. After the Galas rejected the Morans' proposal to buy the land the Morans desired, the Morans filed suit against the Galas in the Land Court for adverse possession and trespass. The Galas asserted an affirmative defense of equitable estoppel and a counterclaim charging misrepresentation and a G.L. c. 93A violation. The Morans moved to dismiss for lack of jurisdiction, and the counterclaim was transferred to the Superior Court. All claims but the counterclaim have been adjudicated and disposed of in prior litigation. The counterclaim was tried in the Superior Court jury-waived and the judgment before us entered in favor of the Galas.
Discussion. We review the judge's findings of fact for clear error and his rulings of law de novo. Cavadi v. DeYeso, 458 Mass. 615, 624 (2011). The Morans argue on appeal (1) that the judge misapplied the law of issue preclusion and erroneously concluded that, for the purposes of adjudication of the counterclaim, he was bound by the findings in the earlier litigation regarding the Morans' deceitful conduct; and (2) that the judgment against both Attorney Moran and his wife (via agency theory) under c. 93A was “incorrect as a matter of law” and should therefore be reversed.
Issue preclusion. The pertinent portions of the Land Court memorandum on summary judgment and of our decision in Moran I, supra at 139–141, relied upon by the Superior Court judge provide ample support for his conclusion that the question of intentional misrepresentation and deceit was resolved in the earlier litigation. In particular, the Land Court judge concluded, and we agreed in Moran I, that Robert Moran, acting as attorney for the Stowes and as agent for his wife Susan, (i) knowingly concealed from the Galas the fact of his and his predecessors' long-time use of a portion of the property the Galas were being asked to purchase, thus inducing them, to their detriment, to buy the potentially encumbered land that they would otherwise not have bought without an adjustment or release, id. at 140; and (ii) knowingly
and falsely represented, in the mechanic's lien certificate, that “there are no tenants, lessees or parties in possession of said premises other than” the Stowes.
Attorney Moran, by his own admission, “had personal knowledge of the use and occupation of this property and the so-called disputed area.” Moran I, 66 Mass.App.Ct. at 138.
Moran I, 66 Mass.App.Ct. at 138. We agree with the Galas that although the Land Court judge did not state expressly that Moran acted with intent to deceive and we did not resolve the point expressly in Moran I, such a conclusion was implicit in the Land Court decision and consistent with the result we reached in Moran I. Moreover, even if such a conclusion was not made, or could not have been made on the summary judgment record, its omission is immaterial because a finding of intent to deceive is not required for either a misrepresentation claim or c. 93A liability. See Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 444 (1975) (misrepresentation); Drakopoulos v. U.S. Bank Natl. Assn., 465 Mass. 775, 785 n. 15 (2013) (c. 93A). Misrepresentation involves a false representation that is intended to induce action and produces detrimental reliance. See Snyder, supra at 445. The judge was correct in determining that all of those prerequisites were established in the prior litigation. Likewise, all that is required under c. 93A is an unfair or deceptive act in the course of conducting a business or commerce. The finding of such an act by Attorney Moran in his dealings with the Galas is apparent from the Land Court's decision that we agreed with in Moran I. The Morans' argument that those findings were not “necessary,” and other remaining arguments regarding the improper application of the doctrine of issue preclusion, are without merit substantially for the reasons stated in the Galas' brief at pages 17–38.
In Moran I, 66 Mass.App.Ct. at 140 n. 10, we explained that the fact that this misrepresentation was made in a mechanic's lien certificate that was not addressed to the Galas themselves, did not preclude the application of equitable estoppel because it was calculated to induce the Galas' reliance and because, without the certificate, the sale would have not gone through.
Chapter 93A claim. Nevertheless, we agree with the Morans that Susan Moran could not be found liable under G.L. c. 93A. Although Attorney Moran was acting at all relevant times as an agent for his wife, and she was properly found liable as a principal for his misrepresentations, Susan Moran is not an attorney and did not engage in a business or commerce in her attempt to acquire the desired piece of land from her neighbors. See G.L. c. 93A, §§ 1( b ), 2( a ); Lantner v. Carson, 374 Mass. 606, 611 (1978) (“[W]ith respect to G.L. c. 93A, where the Legislature employed the terms ‘persons engaged in the conduct of any trade or commerce,’ it intended to refer specifically to individuals acting in a business context”).
Chapter 93A was not intended to apply to individual buyers or sellers who engage in a transaction in real estate not in the course of their business. Compare Mongeau v. Boutelle, 10 Mass.App.Ct. 246, 251 (1980) (“[Chapter] 93A does not afford relief against individual sellers”). Susan Moran's liability for misrepresentations in the context of the sale of her neighbors' house, due to which she was estopped from asserting her claim of adverse possession, were actions of a noncommercial prospective buyer. We therefore affirm the judgment against Robert Moran on the c. 93A claim and reverse it insofar as it applies to Susan Moran.
By contrast, Robert Moran's misrepresentations to the Galas as attorney for the Stowes in the sale of their property qualified as engagement in business or commerce. See First Enterprises, Ltd. v.. Cooper, 425 Mass. 344, 347–348 (1997); Nova Assignments, Inc. v.. Kunian, 77 Mass.App.Ct. 34, 44 n. 7 (2010).
Although the judge did not consider the issue of applicability of c. 93A to Susan Moran and did not make findings in this regard, a remand is not required in this case because the judge made no separate damages award for the c. 93A violation, as he considered a separate award duplicative where the detriment the Galas suffered was the same as that resulting from the Morans' misrepresentation. Thus, in view of our decision, a remand would achieve nothing.
Conclusion. So much of the judgment as finds Susan Moran liable under G.L. c. 93A is reversed. The judgment is otherwise affirmed.
So ordered.