TIMOTHY FINNIGAN v. CROWN AUTO SALES and another [Note 1]

FINNERTY, J. When Timothy Finnigan ("Finnigan") bought his used car from James Stuart, doing business as Crown Auto Sales ("Crown Auto") on March 14, 2012, it had 84,047 miles on it. Under G.L. c. 90, § 7N1/4, the "Used Car Lemon Law," the vehicle was sold with an express warranty against defects for the first to occur of 30 days from the date of sale or 1,250 miles. [Note 2]

On May 24, 2012 and on three other occasions up to November 14, 2012, and despite the vehicle being outside the warranty period, when Finnigan complained about mechanical problems with the car, Crown Auto paid for repairs at a shop chosen by Crown Auto.

On July 8, 2013, Finnigan filed a complaint alleging violations of the Used Car Lemon Law and for violations of G.L. c. 93A based on the alleged Used Car Lemon Law violations. [Note 3] The alleged Used Car Lemon Law violations were never tried. On the day of trial, Finnigan moved for a judgment as to liability based on omissions in four slips from the repair shop to which the out-of-warranty vehicle had been taken at Crown Auto's direction and which were paid by Crown Auto. The slips had been submitted to Crown Auto and were provided to Finnigan in the course of pretrial discovery. The alleged Used Car Lemon Law violations were not part of Finnigan's motion, nor did Crown Auto concede liability on those issues. Instead, it made clear its position that the Used Car Lemon Law warranty period had expired and that the Used Car Lemon Law was not applicable. [Note 4]

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After hearing, the court granted the motion as to liability and scheduled the case for an assessment of damages hearing. [Note 5] No testimony was offered and, instead, the court assessed damages based upon the affidavits of Finnigan's attorney and supporting documents. Finnigan's attorney's affidavit suggested damages totaling $20,902.59, which included the total purchase price of the vehicle, loan finance charges to the date of judgment, and money paid by Finnigan for new tires for the vehicle on September 26, 2012. Finnigan's attorney, also by affidavit, suggested attorney's fees of $11,776.87.

On July 27, 2015, the trial court ordered: "After hearing and due consideration, and crediting the affidavits set forth, and incorporating them as findings herein, I order damages and fees in the amount sought." Damages of $20,902.59 and attorney's fees of $11,776.87 were assessed.

This appeal, in which Crown Auto claims the trial judge abused his discretion in awarding damages and attorney's fees, followed.

We see two issues that require us to vacate the judgment and return the case for further proceedings. First, to the extent Finnigan sought recovery for violations of G.L. c. 90, § 7N1/4, the Used Car Lemon Law, liability could not be established because the vehicle was no longer within the warranty period, as is clear from the facts in the record. Beyond that, however, those issues were not tried. Finnigan's motion for judgment as to liability related only to the four invoices that did not meet the requirements of 940 Code Mass. Regs. § 5.05 and constituted therefore a per se violation of G.L. c. 93A.

Second, there must be a causal connection between the unfair or deceptive act and the claimed loss, and the loss must be a foreseeable result of the unfairness or deception. Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 678 (1983). See also T.B. Merritt, Consumer Law § 4:58, at 422-423 (2010). A per se violation of G.L. c. 93A requires proof of actual injury or loss before even minimum damages of $25.00 may be awarded. Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309, 317-323 (2004). Even assuming the per se violation resulting from the 940 Code Mass. Regs. § 5.05 violation, Finnigan was required to prove that the per se violation caused a loss. Roberts v. Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. 811, 813-814 (2006); Hershenow v. Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. 790, 801-802 (2006); Kitner v. CTW Transp., Inc., 53 Mass. App. Ct. 741, 748 (2002). The question of whether the requisite causal connection has been proved is one of fact. DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 101 (1983).

The trial court adopted Finnigan's submissions at the damages assessment hearing as its findings. We must look therefore at whether the court abused its discretion or committed an error of law in awarding the damages and fees it did. An abuse of discretion occurs when a judge makes a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

We conclude that as to its assessment of damages, the court abused its discretion because a causal relationship between the per se G.L. c. 93A violation and the damages claimed by Finnigan is not supported by the record. To the extent that the court based

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its allowance of damages on the Used Car Lemon Law, it was an abuse of discretion to order judgment on liability. Crown Auto was entitled to a trial on that issue. See Thompson v. Main Street Auto Sales & Serv., Inc., 1999 Mass. App. Div. 60.

A consumer who prevails in a G.L. c. 93A action is entitled to collect reasonable attorney's fees, and the trial judge is given substantial discretion in determining what a reasonable amount would be. The trial judge should take into account the nature of the case and issues presented; the time and labor required; the amount of damages involved; the results obtained; the experience, reputation, and ability of the attorney; the usual price charged for similar services by other attorneys in the area; and the amount of awards in similar cases. Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979). A prerequisite to an award of attorney's fees is that the consumer is entitled to some "other relief" under the statute. Thus, the consumer must be entitled to relief in the form of actual damages, minimum statutory damages of $25.00, or equitable relief in order to recover attorney's fees. Attorney's fees may be awarded even though the consumer recovered only nominal damages, but excessive fees should not be used as a punitive device to compensate for small or nonexistent money damages awards. Merritt, supra at § 4:68, at 443-444.

Because we find that the judgment and damages award to Finnigan must be vacated and the case returned for further proceedings for the reasons discussed above, and because the results of those proceedings may (and likely will) affect the trial court's determination of attorney's fees in consideration of the Linthicum factors, we also vacate the award of attorney's fees and return that issue to the trial court as well. See McDonough v. Ferrari Pool 'N Patio, Inc., 2000 Mass. App. Div. 100.

The judgment is vacated, and this matter is returned to the trial court for further proceedings consistent with this opinion.