CLARENCE BOOTH vs. PETER AUGIS.

BROWN, J. This appeal requires us to determine the appropriate procedure for asserting a G. L. c. 93A claim in the context of a case originally commenced under the Home Improvement Contractor Arbitration statute. See G. L. c. 142A, §§ 3(b) and 4(a), inserted by St. 1991, c. 453.

As a threshold matter, we note that our review has been significantly hampered by the state of the record and the attorneys' disregard of our procedural rules. [Note 1] We draw what limited facts we can from the abbreviated record.

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In 2001, Clarence Booth entered into a home improvement contract with Peter Augis, a residential building contractor duly registered under the provisions of G. L. c. 142A. Following the breakdown of their relationship, Booth elected to submit their dispute to the Massachusetts home improvement private arbitration services program. See Simas v. House of Cabinets, Inc., 53 Mass. App. Ct. 131, 132-133 (2001). After a hearing, an arbitrator found in favor of Booth, awarding him $2,290.76 in damages and costs. On March 2, 2004, the program administrator mailed the arbitrator's February 25, 2004, decision to the parties. Unhappy with the amount of the award, on March 24, 2004, Booth purported to appeal the arbitrator's decision for trial de novo in the Superior Court (Booth I). See G. L. c. 142A, § 4(d) and (e). The filing of this arbitration appeal stayed Augis's payment obligation to Booth. See G. L. c. 142A, § 4(e).

A judge subsequently allowed Augis's motion to dismiss Booth's pro se complaint. On January 27, 2005, Booth, through his newly-retained attorney, filed an amended complaint. [Note 2] Ruling on cross motions, a judge denied both Booth's motion to stay and Augis's motion to dismiss based upon Booth's failure to meet the twenty-one day filing deadline imposed by G. L. c. 142A, § 4(e).

While Augis's motion for reconsideration of the denial of his motion to dismiss was under advisement, Booth commenced a second action in the Superior Court (Booth II). As Booth described it, the second action sought to hold Augis liable under G. L. c. 93A for the same contractor services at issue in the arbitration and in Booth I. [Note 3] It was undisputed that both actions involved the same parties and the same set of facts. Booth I and Booth II were assigned to different sessions.

On August 30, 2005, the parties filed cross motions in Booth II: Booth sought to consolidate Booth I and Booth II, while Augis moved to dismiss Booth II under Mass.R.Civ.P. 12(b)(6)

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and 12(b)(9), 365 Mass. 755 (1974). After a hearing, a judge stayed her decision on the cross motions, pending the ruling on Augis's motion for reconsideration in Booth I.

On April 4, 2006, a judge allowed Augis's motion for reconsideration, dismissing Booth's appeal as untimely. A final judgment entered in Booth I on April 20, 2006. [Note 4]

On July 27, 2006, Booth filed a one-count amended complaint in Booth II, framed entirely under the rubric of G. L. c. 93A. In his amended complaint, Booth added another basis of c. 93A liability arising from Augis's refusal to pay the arbitration award Augis clearly owed. [Note 5] A judge subsequently allowed Augis's renewed motion to dismiss the original complaint in Booth II. After the denial of Booth's motion for reconsideration, this timely appeal from the final judgment dismissing Booth II ensued. [Note 6]

One purpose of the arbitration statute is to provide dissatisfied homeowners like Booth with a more expeditious and efficient procedure for resolving their contractor problems. See 201 Code Mass. Regs. § 14.01(1) (2003). If arbitration does not prove satisfactory, the statutory scheme protects each participant's right to pursue his remedies in a court of law.

The novel issue presented here is whether the plaintiff should have, and in fact was required to, press his c. 93A claim as part of his complaint in Booth I (the c. 142A appeal) and, having failed to do so, whether he was precluded from so doing in Booth II. Stated differently, the question for review is whether a homeowner seeking to assert a G. L. c. 93A claim for the first time after arbitration must raise it by commencing a separate action and moving to consolidate that action with his arbitration

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appeal under G. L. c. 142A, § 4(e). [Note 7] If Booth could not have raised his G. L. c. 93A claims in the arbitration appeal, as he maintains, he could not have engaged in improper claim splitting and Booth II should not have been dismissed. However, we conclude that a homeowner may assert a G. L. c. 93A claim in the arbitration appeal, and therefore we affirm the judgment of dismissal.

First, nothing in the statutory language of c. 142A can be read to prohibit the bringing of a c. 93A claim in an arbitration appeal. Contrast Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 515-517 (2003) (sanctioning the consolidation procedure in a case involving a commercial tenant that could not have raised its counterclaim in the summary process action).

Second, a statute should be construed so as to best carry out legislative intent. See Staveley v. Lowell, 71 Mass. App. Ct. 400, 406 (2008). Here, an interpretation that would allow the homeowner to raise his G. L. c. 93A claims in the arbitration appeal furthers the legislative intention behind G. L. c. 142A "to facilitate a homeowner's c. 93A remedies." [Note 8] Simas v. House of Cabinets, Inc., 53 Mass. App. Ct. at 137. It also promotes the worthy goals of judicial economy and cost efficiency.

The Simas case so prominently relied upon by Booth supports rather than undercuts the result we reach. In Simas, the contractor, who was the respondent in the arbitration, filed an arbitration appeal under G. L. c. 142A, § 4(e), in the Superior Court in which he incorrectly named the homeowner as the

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plaintiff. See id. at 134. Because he was named as the plaintiff, the homeowner did not file an answer or a counterclaim. Ibid. Approximately one year into the litigation, the trial court allowed the homeowner to add a G. L. c. 93A claim by way of an amendment to his request for relief. Ibid.

Faced with this irregular procedure, this court found no error in that ruling, concluding that "it was appropriate to allow the c. 93A claim to go forward in conjunction with the trial de novo." Id. at 138. Although the homeowner was permitted to add his c. 93A claim by amendment, given the similar procedural facts, the language in Simas approving the inclusion of the homeowner's c. 93A claims in the G. L. c. 142A, § 4(e), arbitration appeal supports our conclusion here.

The other linchpin of Booth's appeal is his contention that G. L. c. 93A, § 9(1), presented a legal impediment to his ability to raise his G. L. c. 93A claim in Booth I. [Note 9] On Booth's reading of that statute, a c. 93A claim may only be raised in one of the four methods specified in § 9(1). Because the Legislature failed to include an "appeal" within this list, Booth argues that he was required to bring his c. 93A claim by way of a separate complaint in the Superior Court. We disagree with this interpretation.

Although designated as an "appeal," the proceedings established by G. L. c. 142A, § 4(d) and (e) are de novo; they resemble an "original" trial court action more than an ordinary appeal. Compare Superadio Ltd. Partnership v. Winstar Radio Prods., LLC, 446 Mass. 330, 333-334 (2006) (noting the narrow scope of review of an arbitration award and the limited grounds for judicial intervention). We see no reason why a complaint filed in the Superior Court by a party seeking de novo review of a nonbinding arbitrator's decision would be inconsistent with the language of G. L. c. 93A, § 9(1). Indeed, we find the approach suggested in Simas, which we adopt in this case, to be consistent with this statutory language.

No other procedural restriction prevented Booth from raising

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his c. 93A claims in the arbitration appeal. Contrary to Booth's assertions, he did have the opportunity to litigate his c. 93A claims in the arbitration appeal. This is not a case where the court in the first action (the Superior Court) lacked jurisdiction to hear the claims sought to be precluded in the second action (or to award the full measure of relief). Contrast Heacock v. Heacock, 402 Mass. 21, 24-25 (1988); Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 638-639 (1998). Application of this exception to the claim preclusion doctrine was thus not warranted.

The law of prior adjudication required that "all legal theories supporting a claim be presented when the opportunity [was] available." Day v. Kerkorian, 61 Mass. App. Ct. 804, 811 (2004), citing Bagley v. Moxley, 407 Mass. 633, 638 (1990). Booth should have pressed his c. 93A claims in the arbitration appeal. The judgment in Booth I barred "further litigation of all matters that were or should have been adjudicated in [that] action." Day v. Kerkorian, supra, quoting from Heacock v. Heacock, supra at 23. The motion judge properly dismissed Booth II based upon the doctrine of claim preclusion.

On the view we take of the case, there is no need for us to consider the alternative basis for the judge's dismissal of Booth II under rule 12(b)(9). [Note 10]

Judgment affirmed.