JOAN SQUERI & another [Note 1] vs. PAUL B. MCCARRICK & another. [Note 2]

WARNER, C.J. In this landlord-tenant dispute in the Housing Court, the plaintiffs filed a complaint alleging, among other things, wrongful eviction from their apartment in violation of G. L. c. 186, Section 14, conversion, and negligence. Their complaint was amended to add a count under G. L. c. 93A. All counts were tried to a jury on special questions. The jury found for the plaintiffs on each claim, awarding them $38,800 in damages under the conversion theory, $122,000

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under the negligence theory, thereafter reduced by thirty-five percent for the plaintiff's negligence, $122,000 under each of the wrongful eviction and the c. 93A claims, and double damages under c. 93A. The judge entered final judgment for the plaintiffs under their c. 93A claim for $244,000, and awarded costs and attorney's fees of $38,294. He dismissed the plaintiffs' remaining claims. He later allowed the plaintiffs' motion to amend the final judgment to include judgments on the claims that had been dismissed. He awarded costs for each of those judgments and attorney's fees for the G. L. c. 186, Section 14, claim. Recovery was limited to the c. 93A count. The defendants' motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial were denied.

After painstaking review of the entire record of the trial in this case, which the judge correctly described as "a very close case," we conclude that the trial was so laden with error, misinstruction, and probable juror confusion that substantial justice requires there be a new trial, even though the defendants did not properly preserve for appeal some of what we consider wrong. See Pilos v. First Natl. Stores, Inc., 319 Mass. 475, 479 (1946); Tuttle v. McGeeney, 344 Mass. 200, 208 (1962); Melrose Appliance Center, Inc. v. Eastern Erection Co., 354 Mass. 771, 772 (1968).

Our reasons briefly are as follows.

1. Illegal eviction claim. The case in this respect had been tried on the theory that the defendants had failed to give proper notice of termination of the plaintiffs' tenancy in violation of G. L. c. 186, Section 12, [Note 3] and, therefore, their eviction was illegal under G. L. c. 186, Section 14. [Note 4] In his main charge, the

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judge told the jury about rent control regulations in the city of Boston and left it to them to determine whether the apartment in question was subject to rent control. Later, in answer to questions by the jury, he instructed them that the property was subject to rent control and, therefore, the defendants could not evict the plaintiffs without permission, which they did not have, from the rent control board. He then said, as to the notice to quit, "the issue of the notice to quit . . . has no relevance to the case . . . .

Moreover, there is no evidence from which the jury could find that any notice to quit was served on the plaintiffs in this case or their agents." The case had not been tried on a theory of violation of the rent control ordinance. [Note 5] See Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 n.25 (1992). Cf. National Med. Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984). The jury had to have been thoroughly confused. [Note 6] The jury should have been instructed on the proper standards to apply in determining the validity of delivery of notice under G. L. c. 186, Section 12. See Ryan v. Sylvester, 358 Mass. 18, 19-21 (1970).

2. Negligence claim. Without proper instructions on the G. L. c. 186, Section 12, question, the jury were not correctly guided on the issue of the status of the plaintiffs as tenants at

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the time of the alleged wrongs and, hence, could not determine the duty owed to the plaintiffs by the defendants. [Note 7]

3. Conversion claim. It was error to deny the defendants' motion for a directed verdict on this claim. There was no evidence from which the jury could conclude that the defendants or their agents had more likely than not taken the plaintiffs' property. See Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass. App. Ct. 503, 507 (1985); Nolan & Sartorio, Tort Law Section 55 (2d ed. 1989); Restatement (Second) of Torts Section 222A(1) (1965). Such evidence as there was permitted only speculation. [Note 8], [Note 9]

4. General Laws c. 93A instructions. (a) The judge instructed the jury that if they found for the plaintiffs on the negligence or conversion [Note 10] claims, [Note 11] they were required to find that the defendants had violated c. 93A. This was error.

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A negligent act standing by itself does not give rise to a claim under c. 93A. There must in addition be evidence that the negligence was or resulted in an unfair or deceptive act or practice. See and compare Swanson v. Bankers Life Co., 389 Mass. 345, 348-349 (1983); Maillet v. ATF-Davidson Co., 407 Mass. 185, 193-194 (1990); MacGillivary v. W. Dana Bartlett Ins. Agency, Inc., 14 Mass. App. Ct. 52, 59 (1982); Glickman v. Brown, 21 Mass. App. Ct. 229, 234-235 (1985); Construction Planners, Inc. v. Dobax Ins. Agency, Inc., 31 Mass. App. Ct. 672, 677 (1992). The question whether the defendants' conduct was negligent and whether it involved an unfair or deceptive act or practice should have been left to the jury on proper instructions as to applicable standards. Mechanics Natl. Bank v. Killeen, 377 Mass. 100, 109 (1979). Swanson v. Bankers Life Co., supra at 349.

(b) The jury were instructed that if they found that the defendants intended at relevant times to convert the units in the building to condominiums, "even if they planned to live in one of the units themselves," they must find that the defendants were engaged in trade or commerce for purposes of c. 93A. [Note 12] Unless the defendants were so occupied, c. 93A would have no application. There was error in removing from the jury the question whether the defendants, in all of the circumstances, were engaged in trade or commerce with respect to the conduct of which the plaintiffs complained. That question in this case was one of fact. See Brown v. Gerstein, 17 Mass. App. Ct. 558, 571 (1984), and cases cited. The judge should have instructed the jury on the standards to be applied by them in determining whether the defendants were motivated by business or personal reasons. See Lantner v.

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Carson, 374 Mass. 606 (1978); Begelfer v. Najarian, 381 Mass. 177, 190-191 (1980); Nei v. Burley, 388 Mass. 307, 317 (1983); Billings v. Wilson, 397 Mass. 614 (1986).

(c) The judge instructed the jury that, if they found the defendants liable under c. 93A, they were required to assess at least double damages because the defendants had failed to respond to the plaintiffs' demand letter with a reasonable offer. (The defendants' counsel had sent a response detailing reasons for the denial of liability and declining to offer settlement.) This was error. General Laws c. 93A, Section 9(3) (1988) ed.), provides for double or treble damages if there is a finding that "the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated . . . section two" (emphasis supplied). Those determinations involved questions of fact which should have been left in this case to the jury. See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 627-628 (1978); Wolfberg v. Hunter, 385 Mass. 390, 399 (1982).

Moreover, the judge's confused instructions on the elements for recovery under c. 93A could well have led the jury erroneously to believe that they could also assess multiple damages on a finding of negligence alone without a finding that the defendants' conduct constituted a wilful or knowing violation of Section 2. Even assuming an unfair or deceptive act or practice, "[a] negligent unfair act or practice does not qualify for multiple damages." Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 858 (1986).

5. Damages. The plaintiffs testified to values of personal property lost because of the defendants' alleged wrongs totalling $37,760.90. There was no other evidence of specific value. [Note 13] The plaintiff Pritchett further testified that he had

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lost $20,000 of what he could have earned as a university professor in each of two years (the only period for which he claimed such damages) because the research materials which he lost delayed his receipt of his degree of doctor of philosophy. The losses on which the plaintiffs placed a certain value thus totalled $77,760.90. Pritchett further testified that if he had received his degree he could also have earned money (in an unspecified amount generally or specifically) from publishing, consulting, photography, and lecturing. The jury's award of damages of $122,000 on each of the illegal eviction, negligence, and c. 93A claims exceeded by $44,239.10 the value of the property and lost earnings as to which there was some evidence.

"The assessment of damages for impairment of earning capacity rests largely within the common knowledge of the jury, sometimes with little aid from evidence." Griffin v. General Motors Corp., 380 Mass. 362, 366 (1980). Doherty v. Ruiz, 302 Mass. 145, 147 (1939). While proof of damages does not require mathematical precision, it must be based on more than mere speculation. See Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488, 493 (1959); Rombola v. Cosindas, 351 Mass. 382, 385-386 (1966); Ricky Smith Pontiac, Inc. v. Subaru, Inc., 14 Mass. App. Ct. 396, 426-427 (1982). Here, the jury had no evidence whatever to guide them in placing a value on the extracurricular pursuits of one holding a doctorate in anthropology. [Note 14] The common knowledge of the jury surely could not fill the gap.

Moreover, what we have said as to the amount of speculative damages assumes that the jury accepted the plaintiffs' testimony as to lost earnings as a university professor. They were not, of course, required to do so. Indeed, Pritchett gave deposition testimony which could have led the jury to arrive at a smaller amount. There is, therefore, no basis in the record to arrive confidently at the figure which the jury assigned to the elements of claimed damages for lost income.

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Conclusion. It is unnecessary to reach other claims of error by the defendants. [Note 15] The amended judgment dismissing the defendants' counterclaim against Richard Dery is affirmed. That part of the judgment awarding the plaintiffs damages and costs on the conversion claim is reversed, and judgment is to enter for the defendants. The remaining portions of the judgment are also reversed so that there may be a new trial on the claims of illegal eviction, negligence, and violations of G. L. c. 93A, consistent with this opinion, but only on the theories on which they were tried to the jury in the first trial. See Parrish v. Parrish, 30 Mass. App. Ct. 78, 88 (1991).

So ordered.