2020 Mass. App. Div. 53

November 8, 2019 - April 7, 2020

Appellate Division Southern District

Court Below: District Court, Quincy Division

Present: Finnerty, P.J., Pino & Campbell, JJ.

Bradley C. Pinta for the plaintiff.

Michael L. Mineau and Nicholas J. Goodier for the defendant.

PINO, J. This appeal arises from a contractual dispute between the plaintiff, Orion Points West, Inc., d/b/a Express Employment Professionals ("Plaintiff"), and the defendant, FJM Enterprises, Inc., d/b/a Servpro of Weymouth ("Defendant"), through which the Plaintiff sought damages against the Defendant for breach of contract and violations of G.L. c. 93A.

Following a bench trial on January 23, 2019, the judge issued findings of fact and rulings of law on January 28, 2019, in which he found in favor of the Plaintiff on both the breach of contract and G.L. c. 93A claims. As a result, he awarded $30,395.13 in damages, plus attorney's fees in the amount of $9,587.50, resulting in a judgment against the Defendant in the amount of $43,492.63. [Note 3]

Factual background. The Plaintiff is a "full service staffing agency" through which it conducts three distinct types of service for its clients: (1) direct hire through which the Plaintiff refers and recommends candidates to companies to hire them directly; (2) temporary-to-permanent hiring through which the Plaintiff refers candidates to companies to work on a temporary basis and who, eventually, become full-time employees; and (3) temporary basis through which the Plaintiff refers candidates to companies to work on a temporary basis.

In order to fulfill the direct-hire function, the Plaintiff interviews and screens individuals and employs them as unpaid associates after which the Plaintiff refers and recommends those associates for permanent hire at other companies. The temporary-to-permanent and temporary-basis functions involve the Plaintiff hiring employees who, in turn, are temporarily placed with companies to provide them with services. Those services and compensation for them are contained in a "Staffing Agreement."

The Defendant is a company that provides disaster relief and restoration and

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remediation services. According to the evidence, the Plaintiff provided temporary employees to the Defendant from 2010 to 2015. Those temporary employees were employed, compensated, and insured by the Plaintiff. The parties did not have any written contract during that period.

In or about February, 2015, the parties executed the "Staffing Agreement" that outlined each parties' responsibilities with respect to the Plaintiff providing the three types of service functions as described above. According to the Plaintiff, the Staffing Agreement is presented by it to all companies interested in utilizing its services.

In its complaint, the Plaintiff alleged that it provided one of its employees, Neil Jhurilal ("Jhurilal"), to the Defendant as a potential permanent hire that the Defendant, thereafter, hired on a full-time basis resulting in the Defendant being required to pay the Plaintiff a liquidation fee pursuant to the Staffing Agreement. Pursuant to paragraph 12 of the Staffing Agreement, it protects the Plaintiff's interests when a candidate is presented to the Defendant through which the Defendant is prohibited from hiring directly or to use one of the Plaintiff's associates through another staffing agency without paying a liquidation fee. [Note 4] The Defendant denied that any such liquidation fee was owed.

With respect to Jhurilal's interaction with the Plaintiff, he sought employment opportunities through it in September, 2017. Thereafter, he was interviewed and tested along with having his references checked. Jhurilal was hired by the Plaintiff following that process. Once hired, Jhurilal was presented as a candidate to the Defendant on September 26, 2017 after which he was interviewed by the Defendant's general manager, Julio Capo ("Capo"). Following that interview, Capo informed the Plaintiff that it was interested in Jhurilal as a candidate and that the Defendant was required to perform its own background check on him.

On October 3, 2017, the Plaintiff contacted the Defendant to inquire as to the status of hiring Jhurilal. The Defendant informed the Plaintiff that it was continuing to investigate him. The Plaintiff made a second status inquiry on October 12, 2017, a third status inquiry on October 17, 2017, a fourth on October 25, 2017, and a fifth status inquiry on October 31, 2017. The Defendant made no response to those inquiries. As a result, a representative of the Plaintiff personally visited the Defendant's place of business on November 2, 2017 to obtain an update, to no avail. As a result, the Plaintiff contacted Jhurilal directly, during which he informed the Plaintiff that he had already been extended an offer of employment and had been working for the Defendant for several weeks. Thereafter, the Plaintiff learned that the Defendant had hired Jhurilal on October 17, 2017.

As a result of that hiring, the Plaintiff demanded payment of the liquidation fee in the amount of $10,131.71, which included the original invoice amount of $9,984.00, plus accrued interest charges of $147.71. In response and after several conversations, Capo on behalf of the Defendant agreed to pay the Plaintiff $8,300.00, payable

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over three monthly installments in satisfaction of the Plaintiff's claim. No payment of any amount was made by the Defendant despite that agreement.

With respect to the Defendant's failure to pay the liquidation fee, it alleged that Jhurilal's hiring was governed by an Independent Contractor Agreement that was entered into by the parties on June 30, 2015, through which the Defendant claimed that it would not be required to pay anything to the Plaintiff for having hired Jhurilal. The trial court judge found that the Independent Contractor Agreement was solely limited to temporary labor or administrative work. As a result, he found that the Independent Contractor Agreement did not apply to the direct placement and hiring of associates.

Standard of review. We are bound by the findings of fact of the trial judge if they are supported by the evidence and the reasonable conclusions to be drawn therefrom. The credibility of the witnesses is exclusively for the trial judge. Jancsy v. Hy-Land Realty, Inc., 58 Mass. App. Dec. 152, 157 (1976). An appellate court will set aside findings only if they are unsupported by the trial evidence or tainted by error of law. Such findings must be clearly erroneous and regard must be given to the opportunity of the trial judge to assess the credibility of the witnesses. Mass. R. Civ. P. 52(c). So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it. Advanced Spine Ctrs., Inc. v. Enterprise Rent-A-Car Co. of Boston, Inc., 2012 Mass. App. Div. 117, 118. "Findings are clearly erroneous when, 'although there is evidence to support [them], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' The judge, with a 'firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence' . . . . 'If the [trial] court's account of the evidence is plausible in light of the record viewed in its entirety, the [appellate court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous'" (citations omitted). LFS Group, Inc. v. Gutzler, 2011 Mass. App. Div. 83, 87 n.7. Breach of contract. In order to prevail on its breach of contract claim, the Plaintiff must demonstrate that (1) there was an agreement between it and the Defendant; (2) the agreement was supported by consideration; (3) the Plaintiff was ready, willing, and able to perform its part of the contract; (4) the Defendant committed a breach of the contract; and (5) the Plaintiff suffered harm as a result. Singarella v. City of Boston, 342 Mass. 385, 387 (1961).

Applying the facts as set forth above to the breach of contract elements, we conclude that ample evidence existed to satisfy each of them. That same evidence supports the trial judge's finding of fact that the Staffing Agreement, and not the Independent Contractor Agreement, was the operative document controlling the parties' actions with respect to Jhurilal's hiring by the Plaintiff through which it directly placed Jhurilal with the Defendant. As a result, paragraph 12 of the Staffing Agreement required the Defendant to pay the Plaintiff a 30% liquidation fee of Jhurilal's expected annual compensation. Moreover, the Defendant's position that it did not owe anything to the Plaintiff despite having placed Jhurilal with it is beyond logic.

We find nothing erroneous, clearly or otherwise, in the trial judge's finding that the Defendant is responsible to pay the Plaintiff $9,984.00, plus interest in the

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amount of $147.71, based on his application of paragraph 12 to the factual evidence introduced during the trial.

Sufficiency of G.L. c. 93A claim. [Note 5] The Defendant alleges that there was insufficient evidence to find a violation of G.L. c. 93A because a mere breach of contract alone cannot support a finding of unfair and deceptive practices. The Defendant is correct that a breach of contract standing alone is not sufficient as a matter of law to support a G.L. c. 93A violation. Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 100-101 (1979). See Zabin v. Picciotto, 73 Mass. App. Ct. 141, 169 (2008). "Instead, to rise to the level of a c. 93A violation, a breach must be both knowing and intended to secure 'unbargained-for benefits' to the detriment of the other party." Zabin, supra at 169, quoting NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 34 (1st Cir. 1994).

The trial judge made the following ruling of law with respect to the G.L. c. 93A claim:

"Most significantly, the defendant intentionally deceived and made misrepresentations to the plaintiff when they were inquiring as to the employment status of its referral of Jhurilal for permanent hire. They consistently obfuscated the status of his hire even after having hired him. Defendant, through Capo, then agreed that they owed the placement fee, then negotiated a reduced amount, yet still has not paid any money to the plaintiff. This ongoing deception, misrepresentation, and lies constitute a knowing violation of [G.L. c.] 93A entitling the plaintiff to treble damages and attorney[']s fees."

The foregoing findings comfortably establish a violation of G.L. c. 93A by a preponderance of the evidence. That statute makes unlawful "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." G.L. c. 93A, ยง 2(a). The statute does not define "[u]nfair or deceptive acts or practices." While a breach of contract alone does not qualify, it has previously been decided that "[t]o be held unfair or deceptive under c. 93A, practices involving even worldly-wise business people do not have to attain the antiheroic proportions of immoral, unethical, oppressive, or unscrupulous conduct, but need only be within any recognized or established common law or statutory concept of unfairness." VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 620 (1994).

The trial judge's findings here went well beyond "recognized" "concept[s] of unfairness." The Defendant's actions as found by the trial judge were a considered and intentional exercise of consistently obfuscating the status of Jhurilal's hire even after having hired him. We do not find the Defendant's arguments to the contrary to be persuasive.

The interest award in the judgment is vacated, and the matter is returned for amendment of the judgment consistent with note 3 of this opinion. In all other respects, the judgment is affirmed.

The Plaintiff has requested attorney's fees incurred on this appeal. Such an award

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is appropriate in this case under G.L. c. 93A. See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 433 (2005). As the Plaintiff has already submitted an application, the Defendant shall have two weeks from May 4, 2020 to submit any written opposition. The Plaintiff's request for double costs is denied. See Avery v. Steele, 414 Mass. 450, 456 (1993).


[Note 1] Doing business as Express Employment Professionals.

[Note 2] Doing business as Servpro of Weymouth.

[Note 3] Although the trial judge ordered breach of contract damages in the amount of $10,131.71 (single damages), the judgment dated February 15, 2019 sets forth single damages in the amount of $30,395.13 upon which statutory prejudgment interest was calculated. Clearly, the $30,395.13 amount represents the damages awarded by the trial judge on the G.L. c. 93A claim. Pursuant to Makino, U.S.A. v. Metlife Capital Credit Corp., 25 Mass. App. Ct. 302, 320-321 (1988), prejudgment interest is not to be added to multiple damages imposed pursuant to G.L. c. 93A.

[Note 4] Paragraph 12 of the Staffing Agreement is as follows:

"You agree, for a period of 180 days from the date of introduction or last date of assignment, whichever is later, not to hire directly or use Express [Plaintiff] associates through another staffing firm without paying a liquidation fee of 30% of the Express [Plaintiff] associate's expected annual compensation, unless otherwise agreed to by us in writing."

[Note 5] We accept the trial judge's findings of fact on the G.L. c. 93A issue absent clear error, but review his applications of law de novo. Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 470 (2003).