Home LORETTA KELLY v. JAMES P. QUILL and others [Note 1]

2018 Mass. App. Div. 205

November 9, 2018 - December 20, 2018

Appellate Division Northern District

Court Below: District Court, Framingham Division

Present: Coven, P.J., Flynn & Karstetter, JJ.

Melanie Soloman for the plaintiff.

Robert P. Snell for the defendants.

COVEN, P.J. Plaintiff Loretta Kelly ("Kelly") prevailed on her contract claim before a jury against the defendants, James P. Quill and J.P. Quill Construction, Inc. (collectively, "Quill"), for poor workmanship in the installation of a new roof. After the return of the jury verdict, the trial judge ruled in Kelly's favor on her G.L. c. 93A claim and awarded attorney's fees. Quill appeals from the trial judge's finding that his acts constituted an unfair and deceptive practice. More specifically, Quill argues that the trial evidence did not support a finding under G.L. c. 93A and that the judge failed to make findings of fact to support such a finding. We find no error.

First, no trial transcript was filed in connection with the appeal. "It is elementary that it is the appellant who bears the burden on appeal of establishing the trial court error he has alleged. Holyoke Med. Ctr., Inc. v. George, 2011 Mass. App. Div. 30, 33; Wine v. Wu, 1996 Mass. App. Div. 157, 158-159. And an appellant '[cannot] satisfy this legal burden of proving error on appeal . . . without fulfilling its procedural obligation as appellant to prepare and present a record containing all relevant material necessary for appellate review of the issue it raised.' Revere Hous. Auth. v. Chouchos, 2008 Mass. App. Div. 163, 164. In the absence of a transcript . . ., [this] appeal is little more than an invitation simply to assume the existence of reversible legal error by a trial court without any proof in the record of the same. We decline that invitation." Piscatelli v. Fitzgerald, 2013 Mass. App. Div. 55, 58. [Note 2]

Page 206

Second, in District Court civil practice, a judge is not required to make subsidiary findings supporting the ultimate legal determination in the absence of a request by a party for findings of fact. Pursuant to Mass. R. Civ. P. 52(c), a party must file proposed findings of fact and rulings of law before the beginning of closing arguments. This action then triggers the obligation of the trial judge to "find the facts specially and state separately its conclusions of law." Id. See generally Davis, Malm & D'Agostine v. Lahnston, 82 Mass. App. Ct. 254, 255 (2012); Advanced Spine Ctrs., Inc. v. Commerce Ins. Co., 2011 Mass. App. Div. 212, 214 n.5. Quill failed to file or request any findings or rulings.

Quill's appeal is dismissed.


[Note 1] J.P. Quill Construction, Inc., Traina & Traina Insurance Agency, Inc., and Travelers Insurance Company. The insurance companies are not parties to this appeal.

[Note 2] Following the oral argument, Quill submitted a trial transcript. Quill made no motion to file the transcript late. As indicated in Kelly's brief, the transcript confirms that following Quill's direct testimony, the court suspended proceedings for the day. Quill failed to appear the following day for cross-examination, and the trial judge struck the defendant's testimony.

However, having reviewed the improperly filed transcript, we would note that "'[w]hen a party binds himself by contract to do a work or to perform a service, he agrees by implication to do a workmanlike job and to use reasonable and appropriate care and skill in doing it.' The contract may be found to have been breached if the material or significant terms were performed negligently. '[I]f the work was performed in a manner that would be satisfactory to a reasonable [person] in view of all the circumstances, the mere fact that the promisor was not satisfied is not conclusive against a right of recovery . . . '" (citations omitted). B. Thomas Heinzer Assocs., Inc. v. Xarras, 2010 Mass. App. Div. 218, 219-220. In this case, Kelly produced evidence through a roofer with over thirty-three years of experience that Quill, who had less than ten years of experience, did not perform his roofing work in a workmanlike manner and that a portion of the work, installing a water membrane, did not meet the building code.

A breach of a contract, by itself, does not automatically constitute an unfair or deceptive practice within the meaning of the statute. Massachusetts Employers Ins. Exch. v. Propac-Mass., Inc., 420 Mass. 39, 43 (1995). "In determining whether an act or practice is unfair, as opposed to deceptive, we must evaluate the equities between the parties. What a defendant knew or should have known may be relevant in determining unfairness. Similarly, a plaintiff's conduct, his knowledge, and what he reasonably should have known may be factors in determining whether an act or practice is unfair" (citations omitted). Swanson v. Bankers Life Co., 389 Mass. 345, 349 (1983). The judge was not required to find a G.L. c. 93A violation, but it remained a question of fact.