JAMES L. XARRAS v. JUNIPER VINCENT TRICE/KINGS GREENHOUSE

HADLEY, P.J. In November, 2014, the appellant, James L. Xarras ("Xarras"), filed a summary process complaint in the Leominster District Court. Xarras alleged that the appellee, identified as Juniper Vincent Trice/Kings Greenhouse ("Trice"), occupied Xarras's property at 517 Lancaster Street in Leominster and failed to pay rent totaling $6,202.

The summary process complaint reflected a trial date of December 3, 2014. Neither party appeared for trial, and the case was dismissed. Xarras, however, had filed a motion to continue the trial for a medical emergency followed by a motion to remove the order of dismissal. The order of dismissal was subsequently vacated, and a second trial date was scheduled to take place on January 22, 2015. On that date, Trice failed to appear and a default judgment for possession and rent issued in favor of Xarras in the amount of $6,202, plus court costs and interest.

Trice then filed a motion to remove the default and vacate the default judgment based on a representation that he did not receive notice of the new trial date. For some reason, no action was taken on the motion to vacate the default judgment, and an execution for rent and possession issued. A motion to remove the default, vacate the default judgment, and recall the execution was subsequently filed by an attorney representing Trice. The motions were allowed on March 23, 2015, and the judgment was vacated.

After some discovery and multiple motions to continue, a bench trial was scheduled for July 22, 2015. On June 11, 2015, for reasons that are not stated in the appellate record, the trial was continued to August 26, 2015. On July 10, 2015, Trice filed a responsive pleading that included both an answer and a counterclaim in the same document. [Note 1]

In his answer, Trice denied that he owed Xarras anything. In his counterclaim, he asserted that he incurred damages for labor "to cover, salvage and clean water-damaged property" and "to divert, collect and remove dripping water from the roof." He also asserted that he had to replace or repair personal property and that he had lost profits due to conditions caused by Xarras. In a lengthy single count, Trice's counterclaim also alleged that Xarras had "unreasonably committed . . . unfair and unreasonable and bad faith business practices." He claimed that Xarras was in the business

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of renting commercial and residential property and that he had "engaged in unfair and deceptive practices within the meaning of M.G.L. 93A § 11." He further asserted that as a result of Xarras's "misrepresentation, deceit, breach of contract, retaliation, unilateral misconduct in violation of his promises and the law," Trice had suffered damages for "business interruptive [sic] and loss of customers and sales," as well as cleanup costs and damage to personal property that warranted the forfeiture of any rent due for Trice's occupancy of the premises; a finding of breach of contract and an award of damages in Trice's favor; and "a finding of unfair and deceptive business practices by the plaintiff, warranting an award to the defendant of treble damages and costs and attorney fees under G.L. c. 93A § 11 et seq."

On August 3, 2015, Xarras filed a reply that included denials of two paragraphs of the counterclaim, a statement that he lacked sufficient knowledge to affirm or deny allegations in two other paragraphs, and thirteen affirmative defenses. Xarras's response also stated that Trice's counterclaim should be dismissed in its entirety. No motion to dismiss the counterclaim was ever filed, however. A motion to continue the trial was then filed by Xarras. The motion was allowed, and the trial was continued to October 21, 2015. A bench trial was held on that date, and the matter was taken under advisement by the trial judge.

Neither party filed proposed findings of fact and rulings of law. On February 5, 2018, however, the judge issued written "Findings of Fact, Rulings of Law and an Order of the Court," awarding damages of $15,643 to Trice on his counterclaim. The judge found that a tenancy at will existed between the parties. He determined that Xarras had caused some workers to cut out and remove ceiling fans and ventilation units from the roof above the area that was to be leased to Trice. He found this had allowed rain and melting ice and snow to pour into the leased space, damaging equipment and other property. He determined the damage was sustained due to Xarras's failure to respond to demands for repairs, and that Trice had attempted to make roof repairs on his own by hiring a worker. The judge ordered that judgment was to enter for Trice on Xarras's summary process complaint. With regard to the counterclaim, he found that Trice "met his burden" and awarded Trice damages of $15,643. In the last sentence of his order, the judge stated that "the court awaits an affidavit of counsel and would award reasonable attorneys fees to the defendant." He did not set a date by which the affidavit was to be filed.

The docket does not indicate that an entry of judgment on Xarras's summary process claim was ever made by the clerk of the Leominster District Court. On February 5, 2018, however, the clerk prepared, signed, and entered "Judgment for Defendant on Counterclaim," reflecting an award of $15,643 in single damages and $6,088.37 in prejudgment interest, plus "other costs as may be taxed pursuant to law" to Trice. The judgment referenced the trial judge's February 5, 2018 findings and order that stated he was awaiting an affidavit of counsel with regard to attorney's fees. The space on the judgment for attorney's fees was left blank.

On March 5, 2018, a month after the judgment on the counterclaim entered, Trice filed a motion to add to the findings and to award the defendant his attorney's fees and costs. In this motion, Trice asserted that the court had the authority to award him a reasonable amount of attorney's fees "because the Claims of the Plaintiff Xarras are wholly insubstantial, frivolous, and not advanced in good faith. See M.G.L. c. 231 § 6F." Billing statements from Trice's attorneys were submitted in

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support of the motion.

That motion was heard on March 14, 2018. Xarras filed no written opposition. At the hearing, his attorney simply stated that Xarras did not agree that the court's prior finding was "justified," and he reminded the judge that with regard to an award of attorney's fees "the standard is reasonable." The motion was taken under advisement.

Eleven months later, on February 19, 2019, Trice filed a motion to expedite the court's decision on his motion for attorney's fees. That motion was heard on February 27, 2019. The judge who heard the motion (not the trial judge) apparently reported that the trial judge still had the matter under advisement. The docket indicates the motion was taken "off list."

On April 3, 2019, the trial judge issued a memorandum and order stating that using the "lodestar method," he had found all of the time expended and the hourly rates charged by Trice's attorneys were reasonable. He awarded Trice the amounts requested, attorney's fees of $11,570.16 and costs of $1,300.00. (The latter figure actually represents not costs but attorney's fees Trice claimed he had incurred but had not paid at the time the motion was filed.) A notice of appeal was filed on April 10, 2019.

In this appeal, Xarras asks us to consider two issues -- the manner in which prejudgment interest should be calculated and the propriety of the award of attorney's fees to Trice. With regard to the calculation of prejudgment interest, Xarras contends that under the circumstances of this case, it would be inequitable for prejudgment interest on the damages award to be calculated commencing from the date he filed the summary process action. He maintains that to avoid an "undeserved windfall" to Trice, prejudgment interest should begin July 10, 2015, the date the counterclaim was filed, and end four months later, on November 10, 2015, because twelve months is the standard time for the disposition of civil disputes pursuant to District Court Joint Standing Order 2-04. [Note 2] Trice agrees that a court may limit an inequitable award of prejudgment interest, but asserts the court properly calculated the interest here because the delay in the issuance of a final decision was for the most part attributable to the court, not him.

As to when prejudgment interest begins, we find that Xarras is correct. A party that succeeds on its counterclaim is entitled to prejudgment interest at a rate of 12% per year from the filing of the counterclaim. Pettingell v. Morrison, Mahoney & Miller, 426 Mass. 253, 259 (1997); Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986); G.L. c. 231, § 6B. In this case, the starting date for the calculation of prejudgment interest with regard to the counterclaim should have been July 10, 2015, not November 10, 2014.

With regard to the appropriate end date for the assessment of prejudgment interest, both parties have correctly recognized that a trial judge has the discretion to adjust an award of interest when a party has been responsible for unnecessary delay and the opposing party will be unfairly prejudiced. A judge, however, is not required

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to make such an adjustment. Currier v. Malden Redev. Auth., 16 Mass. App. Ct. 906, 907 (1983). See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 841 (1986).

Generally, a judge's discretionary decision constitutes an abuse of discretion where we determine the judge made "a clear error of judgment in weighing the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives" (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In this case, Xarras never brought the question of what would be an equitable assessment of prejudgment interest to the attention of the trial judge. [Note 3] Consequently, there is no decision for us to review. Particularly in light of the fact that this is a matter of discretion, it is not something we can consider for the first time on appeal.

With regard to the judge's decision to award attorney's fees, the record below is somewhat confusing. Trice's counterclaim is not a model of clarity, as it sets forth a variety of allegations and multiple theories of recovery all in one count. That single count does, however, include allegations that Xarras operated a business and that he "engaged in unfair and deceptive practices within the meaning of M.G.L. 93A § 11." It also includes a demand for treble damages, costs, and attorney's fees pursuant to that statute. At the trial, testimony was taken and exhibits were introduced, but there was only one reference to Chapter 93A. Specifically, Trice's attorney stated that "there's a 93A claim in there" when he explained why he was questioning Xarras concerning his other business activities in Massachusetts.

The trial judge issued written findings of fact and, as noted above, he stated that Trice had "met his burden" as to the counterclaim. He specifically found that Xarras, while attempting to upgrade adjacent property for his wife's restaurant, caused some workers to remove ceiling fans and ventilation units from the roof over Trice's business area. He found that this caused water, rain, and melting ice and snow to pour in, damaging Trice's inventory and equipment. He also found Trice made numerous complaints that "either went un responded [sic] to or met with promises of repair that were ignored, although at least one minor rent credit occurred." The findings and order, however, do not include a finding that Xarras's actions violated Chapter 93A, and the memorandum and order awarding Trice his attorney's fees explains how the amount of fees the judge awarded was calculated, but does not set forth the legal basis for the award.

To complicate matters further, in his motion for attorney's fees, Trice cited not Chapter 93A, but G.L. c. 231, § 6F, which authorizes an award of attorney's fees if

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a judge finds a claim was "wholly insubstantial, frivolous and not advanced in good faith." This authority, however, has not been extended to the District Court and could not have served as a proper basis for the award. See G.L. c. 231, §§ 6E and 6F.

Trice now asserts on appeal that the award of attorney's fees should be affirmed because he asserted a Chapter 93A claim in his counterclaim and at trial and a finding that the judge determined Xarras's conduct violated Chapter 93A is implicit in his decision. For his part, Xarras argues that because the trial judge did not make an explicit finding that Xarras violated Chapter 93A or include an analysis in his decision as to whether Xarras's conduct either rose to what Xarras refers to as the requisite level of "rascality" or that he violated "a recognized or established common law or statutory concept of fairness," the award must be vacated.

When parties do not file proposed findings of fact and rulings of law pursuant to Mass. R. Civ. P. 52(c), a District Court judge is not required to make rulings and findings and may issue a general finding. A judge may also issue an opinion or a memorandum, or he or she may make rulings and findings, sua sponte, even when not required to do so under the rule. When a judge issues voluntary findings that are clearly identified as "findings of fact" on which the decision is based, as the judge did in this case, on appeal the findings are reviewed as to sufficiency and correctness. Rule 52 "does not require extensive detail, but does impose on the judge an independent duty to articulate the essential grounds of his decision." Schrottman v. Barnicle, 386 Mass. 627, 638 (1982).

The purpose of Rule 52 is to ensure that a judge who makes written findings "has dealt fully and properly with all the issues" and that "the parties involved and this court on appeal may be fully informed as to the basis of his decision" (citations omitted). Id. at 639. Where a trial judge's decision "convinces us that he intended to, and in fact did, go beyond the scope of a general finding," 31-35, LLC v. Zucco, 2008 Mass. App. Div. 14, 17, "we examine the evidence, as recorded and transcribed . . . and the judge's rulings of law to determine if his factual findings and legal reasoning were clearly erroneous. The trial judge's decision will not be disturbed if it 'contain[s] as many of the subsidiary facts as are necessary to disclose to the reviewing court the steps by which the trial court reached its ultimate conclusion on each factual issue'" (citations omitted). Id.

In this case, the fact that the trial judge's decision contains no explicit determination that Xarras's conduct violated G.L. c. 93A, by itself, does not automatically mandate reversal. Appellate courts "adhere to the principle that the implied findings will not be reversed unless plainly wrong." Commonwealth v. One 1969 Mercedes-Benz Automobile, 375 Mass. 663, 666 n.3 (1978). Remand is not required to remedy a judge's failure to make findings when all the relevant facts are stipulated or documentary, or are otherwise clearly established. When there is conflicting evidence, however, conclusions are insufficient if they lack detail and exactness. Rapp v. Barry, 398 Mass. 1004, 1005 (1986); Bruno v. Bruno, 384 Mass. 31, 35 (1981).

Against this framework, we have reviewed the judge's decision and the transcript of the jury-waived trial and have concluded that the findings of fact made by the judge did not disclose the steps by which he reached his "ultimate conclusion" on the issue of attorney's fees, and there were no stipulations or documentary evidence relevant to this issue. Essentially, the evidence established that someone hired by Xarras made changes to the roof that caused it to leak; that the leaks went unrepaired

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for an extended period of time; and that Trice was damaged as a result. No testimony or evidence was introduced, however, as to whether the failure to make roof repairs arose from some hidden motive on Xarras's part or from a lack of funds or some other reason.

Not every breach of contract constitutes a violation of G.L. c. 93A. Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 100-101 (1979). General Laws c. 93A, § 2 makes unlawful any "[u]nfair . . . acts or practices in the conduct of any trade or commerce." General Laws c. 93A, § 11 extends this prohibition to those "engaged in trade or commerce in business transactions with others similarly engaged." Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 779 (1986). Unilateral, self-serving conduct in disregard of known contractual obligations that are intended to secure unwarranted benefits for the breaching party can constitute unfair acts or practices. Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 474 (1991). Courts determine whether a business's conduct is the type of "immoral, unethical, oppressive, or unscrupulous" behavior that merits sanction under the statute. PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975), quoting Fed. Reg. 8325, 8355 (1964). Whether particular acts, in their factual setting, are unfair or deceptive is a question of fact. The determination of what qualifies as a Chapter 93A violation is a question of law. R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73 (2001). Both G.L. c. 93A, § 9(4) and § 11 provide that if a court finds a violation of § 2, the petitioner shall be awarded reasonable attorney's fees.

Atkinson v. Rosenthal, 33 Mass. App. Ct. 219 (1992), like this case, involved a claim of damages for breach of a commercial lease and a claim made pursuant to Chapter 93A. Addressing the plaintiff's Chapter 93A claim, the Appeals Court noted that in those appellate decisions where § 11 liability had been found, "there was a consistent pattern of the use of a breach of contract as a lever to obtain advantage for the party committing the breach in relation to the other party; i.e., the breach of contract has an extortionate quality that gives it the rancid flavor of unfairness. In the absence of conduct having that quality, a failure to perform obligations under a written lease, even though deliberate and for reasons of self-interest, does not present an occasion for invocation of c. 93A remedies" (citation omitted). Id. at 226.

Here, it is uncontested that Trice was entitled to recover on his counterclaim and that the compensatory damages award he received was justified. There was, however, no evidence that Xarras's actions had "an extortionate quality" or that Xarras's failure to remedy defects caused by the contractor he hired to work on the building's roof was the result of an effort "to gain an unexpected economic advantage or to extort a concession" from Trice. See Diamond Crystal Brands, Inc. v. Backleaf, LLC, 60 Mass. App. Ct. 502, 508 (2004).

Considering what is required to establish a Chapter 93A violation in a commercial setting, we conclude that the judge's findings of fact do not support a conclusion that Xarras's conduct violated the statute. We also find there were no stipulations or documentary evidence in the record beyond those included in the judge's written findings that support this determination. Accordingly, assuming the award of attorney's fees was made pursuant to G.L. c. 93A, § 11, and not in response to Trice's petition under G.L. c. 231, § 6F, we must reverse this part of the judge's order.

On a final note, Trice asserts that Xarras is barred from arguing that the amount of prejudgment interest Trice is entitled to receive on his counterclaim was improperly

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calculated. He asserts that pursuant to G.L. c. 239, § 5, a notice of appeal had to be filed within ten days after February 5, 2018, the date of the clerk's entry of judgment on the counterclaim, and that by failing to do this, Xarras waived his right to appeal from the judgment. In support of his position, Trice cites the statute and two summary process decisions involving counterclaims asserted by the residential tenants. As noted above, G.L. c.239, § 8A explicitly limits a tenant's right to bring a counterclaim in a summary process action to premises "rented or leased for dwelling purposes." This raises a question as to whether the time for filing a notice of appeal set out in G.L. c. 239, § 5 or the deadline for a judgment in a civil case set forth in Dist./Mun. Cts. R. A. D. A. 4 applies to the counterclaim. The time allowed for filing an appeal is the same in each instance -- ten days. A failure to file a timely notice of appeal on a summary process claim pursuant to the statute, however, raises a jurisdictional issue, while a failure to file a timely appeal on a claim governed by Rule 4 does not. In this case, we find that the counterclaim, a civil claim for damages, is governed by Rule 4. See Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 504-505 (1997). That deadline can be extended by the court.

Moreover, although the clerk issued a judgment on February 5, 2018, and the notice of appeal was filed more than ten days after that date, we find that this was not a final judgment that triggered the ten-day appeal period as to the counterclaim. The trial judge only ordered judgment to enter on the summary process claim, but did not make a similar order as to the counterclaim. His order instead unequivocally stated that he was awarding attorney's fees and inviting Trice to file an affidavit in support of an award of attorney's fees. Xarras's notice of appeal was filed within ten days after the judge made his ruling on that motion, when all issues related to the counterclaim were finalized. We find this notice of appeal was timely.

In conclusion, in light of the above, we reverse the trial judge's decision to award attorney's fees, and we return the case to the Leominster District Court with directions to issue a judgment for Trice on the counterclaim in the amount of $15,643, with statutory prejudgment interest to be calculated from a starting date of July 10, 2015, and costs.

So ordered.