H1 LINCOLN, INC. vs. SOUTH WASHINGTON STREET, LLC & others. [Note 1]

TOONE, J. Aptly describing this dispute as "bitter and protracted," the Supreme Judicial Court affirmed judgments entered in favor of the plaintiff on claims involving violation of G. L. c. 93A and breach of contract. H1 Lincoln, Inc. v. South Washington St., LLC, 489 Mass. 1, 2-4, 27 (2022) (H1 Lincoln). The litigation nevertheless continued, and in this consolidated appeal the defendants challenge four postjudgment orders that awarded prejudgment interest, postjudgment interest, and attorney's fees. We affirm.

Background. We briefly summarize the circumstances that gave rise to this dispute to provide context for our decision. The plaintiff, H1 Lincoln, Inc., is a car dealership doing business as Majestic Honda (Majestic). Majestic entered into a commercial lease with the defendants [Note 2] to rent two adjacent parcels in North Attleborough on which it intended to develop and operate a car dealership. H1 Lincoln, 489 Mass. at 4-5. The defendants then

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engaged in a prolonged "scheme of commercial extortion," using "their leverage over Majestic to coercively extract from Majestic additional concessions." Id. at 16-17. In response, Majestic filed suit in the Superior Court for breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of c. 93A. Following a jury trial, a judgment entered in favor of Majestic on its claims for breach of contract and breach of the implied covenant. The jury awarded Majestic $3,762,500 in damages in compensation for the delay in operating its dealership. The judge awarded Majestic $425,912 in attorney's fees and costs based on a fee-shifting provision in the lease.

Following a bench trial, the judge found that the defendants acted with willful and knowing disregard for their contractual obligations in violation of c. 93A, and awarded Majestic an additional $700,000 in delay damages. [Note 3] The judge doubled the total amount of damages (awarded by the jury and the judge) under G. L. c. 93A, § 11. In addition, the judge ordered that, if Majestic elected specific performance of the lease (which it subsequently did), the defendants had to pay additional monthly damages of $175,000 until they complied with the terms of the lease. The judge awarded Majestic an additional $222,454 in attorney's fees and costs, pursuant to the terms of the lease and under c. 93A.

In July 2019, Majestic submitted a proposed judgment that included more than $1 million in prejudgment interest on delay damages. In response, the defendants filed what they styled as a motion to strike the proposed judgment and to preclude the award of prejudgment interest, arguing that it was improper to award prejudgment interest on a judgment for delay damages. They also argued that the award of prejudgment interest would result in a windfall for Majestic. The judge took no action on the motion; a judgment entered on August 6, 2019, that included a provision for "statutory interest thereon as provided by law from the date of the breach of the contract." Thereafter, the defendants filed a motion to amend or for relief from judgment pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), and 60 (a), 365 Mass. 828 (1974), challenging the application of prejudgment interest to delay damages and attorney's fees and costs.

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As a result of what it claimed were additional c. 93A violations, Majestic filed, and the judge allowed, a motion to reopen the evidence. [Note 4] An amended judgment issued on June 16, 2020, that included additional delay damages of $1,592,250, which the judge doubled under G. L. c. 93A, § 11. The amended judgment also provided that "[i]nterest on the original [j]udgment dated August 6, 2019 will continue to run separately as previously ordered."

On appeal from the judgment and amended judgment, the Supreme Judicial Court concluded that the defendants' conduct violated c. 93A and affirmed the judgments. H1 Lincoln, 489 Mass. at 3-4. The court awarded Majestic $163,851 in appellate fees and costs. The defendants did not raise, and H1 Lincoln did not address, any issues involving prejudgment interest.

In the present appeal, the defendants argue that the judge erred in entering four postjudgment orders. As discussed in detail infra, the four orders at issue are (1) the denial of the defendants' renewed motion to amend or for relief from judgment based on previous awards of prejudgment interest, (2) an award of prejudgment interest on the appellate fees and costs awarded by the Supreme Judicial Court, (3) the accrual of postjudgment interest on an encumbered portion of their payment of the monetary judgment to Majestic, and (4) an award of $92,294 in "attorneys' fees and costs arising out of the post-rescript litigation." [Note 5] We consider each of the defendants' arguments in turn.

Discussion. 1. The first order: waiver of the defendants' challenge to prejudgment interest on delay damages. The defendants claim that the judge erred in ruling that they waived their challenge to the award of prejudgment interest on delay damages and certain awards of attorney's fees and costs because they failed to raise those issues in their first appeal. We are not persuaded.

The holding in City Coal Co. of Springfield v. Noonan, 424 Mass. 693 (1997), is controlling. In that case, after both parties unsuccessfully appealed a judgment stemming from the sale of an oil business, the judgment entered after rescript "in the same language as that appealed from." Id. at 694. The judge

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awarded interest "according to law." Id. The defendant then filed a second appeal, which was transferred to the Supreme Judicial Court on its own initiative, in which he argued for the first time that prejudgment interest on an award of damages in the judgment should have been calculated at a lower rate. Id. The court held that, "[w]hatever the merits of that argument, it is too late to make it. The point could have been raised, but was not, on [the defendant's] appeal to the Appeals Court because the issue was apparent on the face of the judgment." Id. at 695, citing Frank D. Wayne Assocs., Inc. v. Lussier, 394 Mass. 619, 621-623 (1985). See Gutierrez v. Massachusetts Bay Transp. Auth., 442 Mass. 1041, 1042-1043 (2004) (party foreclosed from raising issue that could have been raised in first appeal).

Here, the application of prejudgment interest to delay damages and attorney's fees and costs was apparent on the face of the judgments from which the defendants initially appealed. After the judge entered a judgment on August 6, 2019, which provided for "statutory interest thereon as provided by law from the date of the breach of the contract," the defendants filed on August 12 a motion pursuant to Mass. R. Civ. P. 59, 365 Mass. 827 (1974), contending that the judgment should be amended to exclude prejudgment interest on "the award of Majestic's attorney's fees, expert fees or other costs." The defendants reiterated their position at a hearing on August 15, arguing that "there's no interest on attorneys' fees," and that the imposition of prejudgment interest to delay damages was "penal in nature" and not what the statute was "designed to protect." As the judge later summarized, he "took the defendants' motion under advisement," but "ultimately took no action" on it. The defendants' timely opposition to the application of prejudgment interest shows that this issue was apparent on the face of those judgments.

The defendants concede that they did not raise the issue of prejudgment interest in their first appeal, but argue that under Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1606 (2019), the judge's failure to rule on their rule 59 motion barred them from doing so. Rule 4 (a) (3) provides that any notice of appeal filed before the disposition of a timely rule 59 motion to alter or amend a judgment "shall have no effect." Notwithstanding that rule, the defendants made a deliberate decision to proceed with their appeal as if their rule 59 motion had been denied. They did not seek a ruling on their motion after filing it on August 12, 2019, and arguing it three days later. Nor did they object to the

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application of prejudgment interest when the amended judgment issued on June 16, 2020, reiterating that "[i]nterest on the original [j]udgment dated August 6, 2019 will continue to run separately as previously ordered." On July 3, 2020, they filed a notice of appeal of the August 6, 2019 judgment (as well as the June 16, 2020 amended judgment). In the civil docketing statement filed on September 10, 2020, in connection with the first appeal, the defendants did not identify prejudgment interest as an issue for appeal, and under the heading, "Perfection of Appeal," they checked "no" when asked if there was any outstanding "Motion to Alter or Amend Judgment (Rule 59)" or "Motion for Relief from Judgment (Rule 60)." [Note 6]

These circumstances constitute waiver. Even without an explicit ruling on the rule 59 motion, the judge's orders indicated his view that prejudgment interest applied to delay damages and attorney's fees and costs. The defendants could have sought a definitive ruling by reminding the judge of the pending motion, renewing the motion in response to the amended judgment, or identifying the pending motion as required by the appellate civil docketing statement. [Note 7] What they could not do is proceed with their appeal on liability and the propriety of delay damages and then -- after the Supreme Judicial Court rejected their arguments, affirmed the judgment, and issued the rescript -- renew their motion on the applicability of prejudgment interest. [Note 8] See Levenson v. Brockton Taunton Gas Co., 5 Mass. App. Ct. 883, 884

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(1997) (noting "a regrettable tendency to attempt belated or successive bites at the appellate apple").

2. The second order: prejudgment interest on appellate fees and costs. The defendants challenge the judge's award of prejudgment interest on attorney's fees and costs. [Note 9] Because, as discussed, the defendants waived their opportunity to challenge interest on the various fees and costs awarded prior to their first appeal, we address only the judge's calculation of interest on the Supreme Judicial Court's award of appellate attorney's fees and costs to Majestic. We review the question of the applicability of prejudgment interest de novo. See Governo Law Firm LLC v. Bergeron, 487 Mass. 188, 199 (2021). Concluding there was no error, we affirm.

The defendants argue that the judge erred in awarding prejudgment interest because attorney's fees and costs are not generally "part of the damages suffered in a G. L. c. 93A action." Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985). Cf. McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 717-718 (1990) (prejudgment interest applies to "actual damages" awarded under G. L. c. 93A, § 11, but not "noncompensatory multiple damages"). [Note 10] However, in Patry the court held that "if attorney's fees are part of a plaintiff's damages . . . interest should be awarded on the attorney's fees." Patry, 394 Mass. at 272-273. In Siegel v. Berkshire Life Ins. Co., 70 Mass. App. Ct. 318, 319-322 (2007), this court, relying on Patry, upheld the application of prejudgment interest to attorney's fees awarded under G. L. c. 93A. We reached that decision because the trial

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judge found the attorney's fees to be actual damages, applying an earlier ruling in the same case that, "[i]f a c. 93A violation forces someone to incur legal fees and expenses that are not simply those incurred in vindicating that person's rights under the statute, those fees may be treated as actual damages in the same way as other losses of money or property." Siegel v. Berkshire Life Ins. Co., 64 Mass. App. Ct. 698, 703 (2005). Accord Montanez v. 178 Lowell St. Operating Co., 95 Mass. App. Ct. 699, 703 (2019).

As the judge explained in his order here, the award of appellate attorney's fees and costs was for "actual" and "compensatory" damages because, like the earlier attorney's fee and cost awards in the litigation, the amounts were recoverable under the lease as contract damages. In relevant part, the lease provided that, in the event of default by the defendants, Majestic could "sue for damages" including "any and all transaction costs and attorneys' fees." To be sure, the Supreme Judicial Court awarded Majestic attorney's fees and costs as "the prevailing party on appeal in a c. 93A, § 11, action," without referring to the lease, see H1 Lincoln, 489 Mass. at 27 n.18, and its opinion focused on the defendants' liability under c. 93A, considering the lease only to determine whether its limitation of liability provision precluded the assessment of delay damages under c. 93A (which the court held it did not). See H1 Lincoln, 489 Mass. at 21-27. But, as the court also observed, "the actions constituting the defendants' breaches of the lease and their violations of G. L. c. 93A, § 11, [were] intertwined," id. at 23, and the defendants' use of "breaches of contract, or threatened breaches" of the lease, was intrinsic to the c. 93A violations, id. at 15. Under Patry and Siegel, the applicability of prejudgment interest depends on whether the award of appellate attorney's fees and costs amounts to actual damages in the specific circumstances of the litigation, and the judge did not err in finding that they did here. [Note 11]

3. The third order: accrual of postjudgment interest on encumbered payment pending appeal. The defendants contend that the

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judge erred by ordering postjudgment interest to accrue after they paid Majestic the judgment in full.

By December 2022, the defendants owed Majestic more than $20 million, and as the defendants proceeded with the appeal at issue here, they understandably wanted to halt the accrual of interest on that amount at the statutory rate of twelve percent. See Greene v. Philip Morris USA Inc., 491 Mass. 866, 884-885 (2023) (rejecting constitutional challenge to postjudgment interest rate notwithstanding "the arguable windfall this rate provides in a low-interest economy"). On December 30, the defendants filed an emergency motion to dissolve the attachment on their real estate and stop the accumulation of postjudgment interest by paying Majestic the full amount of the judgment while preserving their right to appeal the award of prejudgment interest. On January 10, 2023, a different Superior Court judge ordered that the attachment be dissolved upon full payment, but that "[s]hould the defendants seek to reserve or encumber any payment made in satisfaction of the judgment, such conditional payments shall not constitute full satisfaction of the judgment. Thus, any such conditional payments shall be identified by the Defendants to the Plaintiff and will continue to incur per diem interest." The defendants paid the full judgment the next day but did so "without waiver of any of the Defendants' appellate rights including those currently on appeal." After Majestic objected to the defendants' reservation of rights on the entire payment, the defendants responded on February 8 that "the judgment would be reduced by approximately $3 million if we are successful." For purposes of this appeal, we assume (as the parties appear to) that this response extinguished any reservation of rights that the defendants had on the remaining $17 million-plus of the payment and, therefore, terminated accrual of postjudgment interest on that amount.

The defendants now challenge the accrual of postjudgment interest both on (i) the entire payment between January 13 and February 8, 2023, and on (ii) the $3 million (described above) from February 8 forward. As discussed in further detail below, we review the judge's decision regarding termination of the accrual of postjudgment interest for abuse of discretion. See Commerce Ins. Co. v. Szafarowicz, 483 Mass. 247, 258-259 (2019). Cf. Governo Law Firm, 487 Mass. at 201 (decision on motion to deposit funds with court "is left to the sound discretion of the motion judge").

Postjudgment interest "serves to compensate the prevailing party for any delay in payment," and it "accrues daily . . . until the

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judgment is fully satisfied" (citations omitted). Governo Law Firm, 487 Mass. at 201. Relying on a nonbinding decision from the Supreme Court of Texas, the defendants argue that, because postjudgment interest is "simply compensation for a judgment creditor's lost opportunity to invest the money awarded as damages at trial," a judgment debtor should be entitled to "halt the accrual of post-judgment interest" by paying the judgment -- even if it proceeds with an appeal that, if successful, would allow it to recover some or all of that judgment. See Miga v. Jensen, 96 S.W.3d 207, 211-212 (Tex. 2002).

We decline to impose such a bright-line rule in Massachusetts. Our case law allows a party that has satisfied a judgment to seek "restitution of the amount which he has lost" if the judgment is subsequently reversed on appeal. Cohen v. Murphy, 368 Mass. 144, 146 (1975), citing Delano v. Wilde, 77 Mass. 17 (1858). See Stevens v. Fitch, 52 Mass. 248 (1846). But neither the statute governing postjudgment interest nor any rule of procedure specifies whether a judgment debtor is entitled to terminate the accrual of postjudgment interest by paying the judgment in full while appealing the judgment. General Laws c. 235, § 8, provides that "[e]very judgment for the payment of money shall bear interest from the day of its entry at the same rate per annum as provided for prejudgment interest . . . ." Massachusetts Rule of Civil Procedure 54 (f), 382 Mass. 822 (1980), similarly provides that "[e]very judgment for the payment of money shall bear interest up to the date of payment of said judgment." Massachusetts Rule of Civil Procedure 67, 365 Mass. 835 (1974), provides that in any action "in which any part of the relief sought is a judgment for a sum of money . . . a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum . . . ." In Szafarowicz, 483 Mass. at 261, the Supreme Judicial Court observed that, although in some States the analogous rule 67 expressly provides "for abatement of postjudgment interest when money is deposited with the court," the Massachusetts rule does not.

It is well established that accrual of postjudgment interest is not halted by a judgment debtor's conditional offer that requires the creditor to give up something in exchange. For example, in Governo Law Firm, 487 Mass. at 202, the Supreme Judicial Court held that the defendants could not "escape the accrual of postjudgment interest by making an offer to satisfy the judgment conditioned on a party forgoing its appellate rights." Similarly, in

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Davis v. Allstate Ins. Co., 434 Mass. 174, 183 (2001), the court held that an insurance company did not terminate its obligation under the applicable policy to pay postjudgment interest by offering to pay policy limits in exchange for the insured's release of his claims.

In Szafarowicz, 483 Mass. at 254-256, the Supreme Judicial Court held that an insurer could not stop the accrual of postjudgment interest by seeking to pay the coverage limit into the court, pursuant to rule 67, while reserving the right to "seek its return if it prevailed" in a separately filed declaratory judgment action against the insured. See id. at 258 (describing insurer's offer of payment as "conditional" because it "wanted $480,000 of the deposit returned if it prevailed in the declaratory judgment action"). The court explained that, under its holding in Davis, supra, the insurer's offer did not "stop the accrual of postjudgment interest because it was not an unconditional offer to pay the full policy limits." Szafarowicz, 483 Mass. at 261.

Although Szafarowicz addressed accrual of postjudgment interest under an insurance policy, not under G. L. c. 235, § 8, its reasoning persuades us that we should not adopt the Texas rule advanced by the defendants here. Instead, we conclude that trial judges have discretion to consider the circumstances of each case, including the encumbered nature of any tendered payment, when deciding whether and how to halt the accrual of postjudgment interest. This is not to say that their discretion is unbounded; for example, in Szafarowicz, 438 Mass. at 261 n.16, the court noted that

"it might be an abuse of discretion for a judge to decline to accept a rule 67 deposit to stop the accrual of postjudgment interest where the deposit was an unconditional offer to pay the policy limits, and the plaintiff refused to accept payment directly, causing postjudgment interest to continue to accrue.".

But a judgment debtor's assertion that it retains the right to recover a payment if it prevails on appeal is certainly a factor that may be considered in deciding whether to terminate accrual.

Far from abusing his discretion here, the judge appropriately considered the history of the litigation and the situation of the parties in ordering postjudgment interest to continue accruing on only that portion of the defendants' payment subject to possible

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recovery. By January 2023, this litigation was in its sixth year. Majestic had prevailed on its common law and c. 93A claims in the trial court and in the defendants' first appeal, and a judgment exceeding $20 million had accumulated. As the defendants were launching their second round of appeals, it was reasonable for the judge to require them to identify which portion of their payment to Majestic could be recovered if they prevailed and then terminate accrual of postjudgment interest on only the remaining portion. This balanced approach gave Majestic unencumbered access to a substantial portion of the judgment (more than $17 million) while allowing the defendants to avoid paying interest on that amount as they exercised their appellate rights.

4. The fourth order: postrescript attorney's fees and costs. Lastly, the defendants challenge the judge's award of $54,000 in attorney's fees and costs for Majestic's efforts to enforce and collect the judgment following the Supreme Judicial Court's ruling in the first appeal. We review an award of attorney's fees for abuse of discretion and will reverse the judge's decision "only if it is clearly erroneous." WHTR Real Estate Ltd. Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229, 235 (2005). [Note 12]

The judge ruled that Majestic was entitled to reasonable attorney's fees and costs under both the lease and c. 93A. The defendants argue that the fee-shifting provision in the lease shifts to the landlord only those costs incurred by the tenant to cure the landlord's failure to perform a nonmonetary obligation under the lease. We agree with the judge that the operative language, which provides that in the event of the landlord's default the tenant may sue for damages including "any and all transaction costs and attorneys' fees," is not so limited. Nor do the defendants cite any authority (and we have found none) holding that the entitlement to attorney's fees under a contractual provision like this one ends after the judgment is affirmed on appeal. To the contrary, we have described the argument that such contractual language does not include attorney's fees associated with enforcing and collecting a judgment as favoring "form over substance." Robbins v. Krock, 73 Mass. App. Ct. 134, 139-40 (2008). We also agree that an award of reasonable attorney's fees and costs for postrescript

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proceedings independently was proper under c. 93A. See Ross v. Continental Resources, Inc., 73 Mass. App. Ct. 497, 509 (2009) (under c. 93A "a prevailing party is entitled to a reasonable attorney's fee for all other trial court actions reasonably necessary to obtain a final judgment").

Here, the judge carefully considered the nature of the postrescript proceedings in determining a reasonable award of fees and costs. See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 429-430 (2005). For example, although he awarded attorney's fees for litigating certain motions involving enforcement of the judgment, he excluded fees for an unnecessary request for execution, a motion that was never filed, and Majestic's opposition to a motion on which the defendants obtained much of the relief requested. We see no abuse of discretion.

Conclusion. The orders dated August 3, 2022; December 6, 2022; January 10, 2023; and May 10, 2023, are affirmed. [Note 13]

So ordered.