Opinion
No. 12–P–52.
2013-02-1
Floyd A. WILLIAMS & another v. Dennis MANN.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Floyd A. and Cynthia A. Williams sued Dennis Mann seeking damages and other relief for Mann's alleged failure to complete a kitchen renovation and home expansion.
Mann counterclaimed, contending that the plaintiffs breached the contract the parties entered into by refusing to pay him despite his willingness to complete the kitchen renovation. A Superior Court jury found in Mann's favor and awarded him $17,110 in damages for the plaintiffs' breach. Judgment on the verdict entered on May 7, 2010. On June 3, 2010, plaintiff Floyd A. Williams (Floyd) filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. An order denying the motion entered on June 4, 2010. Floyd filed a notice of appeal as to the order denying that motion on June 15, 2010. On appeal, Floyd argues that a jury instruction regarding the appropriate measure of a builder's damages was incomplete, and that another instruction did not advise the jury that the failure to respond to a G.L. c. 93A demand letter is a violation of that chapter.
The plaintiffs asserted six claims against Mann: (1) breach of contract in violation of G.L. c. 142A, §§ 2, 17, (2) unfair and deceptive sales practices in violation of G.L. c. 93A, (3) promissory estoppel, (4) unjust enrichment, (5) negligence in repairs, and (6) infliction of emotional distress.
The plaintiffs did not object at trial to the damages instruction, so Floyd's first claim of error is waived. See Boston Edison Co. v. Massachusetts Water Resources Authy., 459 Mass. 724, 740 (2011), citing to Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974) (failure to object to instructions at trial waives right to claim error on appeal).
One section of Floyd's brief appears to focus on the nature of a contract for kitchen cabinets, but the discussion (which includes no citations to authority) does not rise to the level of appellate argument and we therefore do not consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Floyd's second argument is incorrect as a matter of law. The failure to respond to a c. 93A demand letter is not itself a violation of our consumer protection law; rather, the lack of a response may be considered in calculating damages in the event a violation is shown. See G.L. c. 93A, § 9(3). The plaintiffs were accordingly not entitled to the instruction they sought. In any event, the absence of an instruction regarding the lack of response to the demand letter was of no import in this case because the jury rejected the plaintiffs' c. 93A claim.
Order entered June 4, 2010, affirmed.