CONSTANCE M. SULLIVAN & another [Note 1] vs. FIVE ACRES REALTY TRUST & others. [Note 2]

CYPHER, J. In 2013, the plaintiffs, Constance M. Sullivan and Edward T. Sullivan, Jr., purchased a piece of real property in Dover (Dover property) from defendants Giuseppe, Rosalie, and Maria Gagliardi, [Note 3] as trustees of the Five Acres Realty Trust. [Note 4] The plaintiffs thereafter discovered various defects in the Dover property and commenced this action in 2014 against Giuseppe, Rosalie, their daughter Maria, Five Acres Realty Trust, and J.F. Contracting Co., Inc. (J.F. Contracting), a masonry contracting business owned by Giuseppe. [Note 5] The plaintiffs alleged breach of the implied warranty of habitability, fraud and misrepresentation, defective and deficient renovation work, and violations of the Massachusetts consumer protection act, G. L. c. 93A. A judge in the Superior Court (motion judge) granted the defendants' motion for summary judgment on the fraud and misrepresentation and the defective and deficient renovation work claims. After trial, the jury found in favor of the plaintiffs on the warranty of habitability and the G. L. c. 93A claims, awarding the plaintiffs $250,000 on the warranty of habitability claim and $211,153.38 on the c. 93A claim. [Note 6]

The defendants appeal from the trial judge's denial of their motions for directed verdict or judgment notwithstanding the verdict, and for a new trial or to alter or amend the damages. The plaintiffs appeal from the motion judge's grant of summary judgment in favor of the defendants on the fraud and misrepresentation claim and the from the trial judge's denial of an award of jury consultant fees under G. L. c. 93A. We conclude that the motion for directed verdict or the motion for judgment notwithstanding the verdict should have been allowed on the G. L. c. 93A

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and the warranty of habitability claims, the motion judge properly granted summary judgment in favor of the defendants on the fraud and misrepresentation claim, and jury consultant fees are not recoverable under G. L. c. 93A. Because we vacate the awards of damages on the G. L. c. 93A and warranty of habitability claims, we need not reach the arguments related to those awards. [Note 7]

Background. 1. The Gagliardis. Giuseppe was a licensed construction supervisor who owned J.F. Contracting, which he started in 1985. J.F. Contracting performed primarily residential construction. Rosalie managed the books for J.F. Contracting and for the apartment rentals she and Giuseppe operated.

Rosalie and Giuseppe had a history of purchasing, renovating, refinancing, and renting properties. In 1974, they purchased their first property, which during the 1980s and 1990s they renovated and converted to a two-family property. They mortgaged the first property and used the proceeds to purchase a second property, into which they moved after living at the first property for about twelve years. They have rented out the first property since moving from it. They also renovated and converted the second property to a duplex apartment and received rental income from it until they sold it to their daughter in 2004. In 1988, Rosalie and Giuseppe refinanced the second property and used the proceeds to purchase a third property, which they renovated and have since rented out. In 1997, they used proceeds obtained from refinancing the second property to purchase a commercial property.

In 2002, they purchased the Dover property with proceeds from refinancing the first and third properties. At that point they had lived at the second property for about fifteen years. In 2009, they purchased a property in Weston with proceeds from mortgaging the Dover property. They rented out the Weston property for several years, until they eventually moved in after selling the Dover property.

2. Renovation work. The Dover property was built in 1986. Rosalie and Giuseppe, through the trust, were the sixth purchasers of the home, in 2002. Before selling the Dover property to the plaintiffs, Rosalie and Giuseppe lived there for eleven years. During that time, Rosalie and Giuseppe completed several renovations to the home for which they did not obtain building permits

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or certificates of occupancy. The work included renovating and enlarging the kitchen, transforming a screened-in porch into a "Tuscan-style room," and installing a brick pizza oven. Giuseppe completed some of the renovation work himself, and contractors completed the other work. The renovation work began in 2006 and took three to four years to complete; however, the exact completion date is unknown because Rosalie shredded the renovation documents.

3. Plaintiffs' purchase of Dover property. Rosalie and Giuseppe listed the Dover property for sale in 2011. In 2012, the plaintiffs conducted a preclosing inspection of the Dover property, during which Rosalie and Giuseppe showed the plaintiffs the renovations to the property. When showing the plaintiffs the work in person, Rosalie and Giuseppe did not disclose that the renovations never were inspected or approved for occupancy.

The plaintiffs purchased the Dover property in 2013, and thereafter discovered structural and other deficiencies relating to the home, such as that the ceilings in the kitchen and Tuscan-style room were in danger of collapsing, and that the defendants had never obtained required permits and certificates of occupancy for the home. The plaintiffs were informed that it would be more cost effective to raze the Tuscan-style room and rebuild it, which could cost approximately $211,000.

4. Prior proceedings. After discovering the defects, the plaintiffs contacted the Gagliardis' real estate broker to learn who performed the renovation work, but Rosalie and Giuseppe refused to provide the requested information.

In 2014, the plaintiffs sent the defendants a demand letter pursuant to G. L. c. 93A, § 9. The defendants did not identify the individuals who performed the renovation work, and the defendants stated in response to the demand letter that they did not perform renovations that would affect the home's structural integrity, nor did they know of any building code violations. The defendants also claimed in their response that a factual and legal investigation into the plaintiffs' allegations had been undertaken, but they later admitted that they never investigated the property. The defendants did not respond with a settlement offer.

The plaintiffs thereafter commenced this action, alleging breach of the implied warranty of habitability, fraud and misrepresentation, defective and deficient renovation work, and violations of G. L. c. 93A. The defendants moved for summary judgment on all claims, which the plaintiffs opposed. The motion judge granted

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summary judgment in favor of the defendants on the fraud and misrepresentation claim and the defective and deficient renovation work claim.

Following a trial, the jury found in favor of the plaintiffs on the implied warranty of habitability and the G. L. c. 93A claims. On both claims the jury awarded damages jointly and severally against Giuseppe and Rosalie, individually, and Giuseppe, Rosalie, and Maria as trustees of Five Acres Realty Trust. Damages on the implied warranty of habitability claim were $250,000, plus statutory and prejudgment interest, and damages on the c. 93A claim were $211,153.38, plus statutory and prejudgment interest. The jury also awarded double damages against Rosalie and Giuseppe, individually, in the amount of $211,153.38, as the jury found that the defendants acted willfully and knowingly and that the response to the c. 93A demand letter was made in bad faith. The plaintiffs moved for attorney's fees and costs pursuant to G. L. c. 93A, § 9 (4), and the trial judge awarded $425,727.76 in attorney's fees and $35,222.19 in costs, but he denied recovery for costs associated with a jury consultant used by the plaintiffs.

The defendants had moved for a directed verdict on both claims at the close of the plaintiffs' case and again at the close of all the evidence, and the trial judge denied both motions. The defendants also moved for judgment notwithstanding the verdict on both claims and filed a motion for a new trial or, in the alternative, for remittitur or to alter or amend the judgment with respect to damages. The plaintiffs opposed the motions and moved to alter or amend the judgment, which the defendants opposed. The trial judge denied all motions. The parties filed timely notices of appeal, and the case now is before us on transfer from the Appeals Court on our own motion.

Discussion. 1. Motions for directed verdict and judgment notwithstanding verdict. In reviewing a denial of a defendant's motion for a directed verdict or for judgment notwithstanding the verdict, we view the evidence in the light most favorable to the plaintiff. Miga v. Holyoke, 398 Mass. 343, 348 & n.6 (1986). "The verdict will be upheld if it may be determined that 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.'" McAvoy v. Shufrin, 401 Mass. 593, 596 (1988), quoting Miga, supra at 348.

a. Chapter 93A. The defendants argue that the evidence was

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insufficient to establish that the sale of the property took place in the course of trade or commerce. We agree.

General Laws c. 93A, § 2 (a), prohibits unfair or deceptive acts or practices "in the conduct of any trade or commerce." The statute is intended to apply to individuals acting in a business context and is therefore not applicable "where the transaction is strictly private in nature, and is in no way undertaken in the ordinary course of a trade or business." Lantner v. Carson, 374 Mass. 606, 607-608, 611 (1978). The statute does not apply to "strictly private transactions such as the isolated sale of a private home." Begelfer v. Najarian, 381 Mass. 177, 190 (1980), citing Lantner, supra. Therefore, the threshold issue we must address is whether the defendants were acting in a business context. Factors relevant to whether the defendants' participation in the transaction took place in a "business context" are the nature of the transaction, the character of the parties, the activities engaged in by the parties, whether the transaction was motivated by business or personal reasons, whether similar transactions have been undertaken in the past, and whether the participant played an active role in the transaction. Begelfer, supra at 190-191, citing Lantner, supra at 611.

Relying on the factors delineated in Begelfer, the plaintiffs argue that the defendants were acting in a business context. [Note 8] The plaintiffs support their argument by relying on Rosalie and Giuseppe's practice of acquiring a property, making renovations to it, refinancing to acquire additional property, and then moving from the property. They further argue that Rosalie and Giuseppe were acting in a business context because of their involvement in the construction business and J.F. Contracting's connection to the Dover property, in part through the property being the company's legal place of business and Rosalie's maintenance of the company's books there. In addition, the plaintiffs note that Rosalie maintained the books and records for the Gagliardi's real estate holdings at the Dover property, and that Rosalie and Giuseppe

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actively participated in the sale, and the plaintiffs surmise that Rosalie and Giuseppe sold the Dover property to generate wealth. The plaintiffs' contention that Rosalie and Giuseppe's purchase, leveraging of equity, renovation, and sale of the property -- particularly when considering previous similar transactions engaged in by Rosalie and Giuseppe -- brings this transaction into the "business context" is perhaps their strongest argument, but it is ultimately unpersuasive in the circumstances of this case.

Despite the above practices, the sale at issue was a strictly private transaction and was not subject to c. 93A. See Lantner, 374 Mass. at 607-608, 611. Applying the Begelfer factors to the present circumstances, the nature of the transaction was private, the parties were not real estate professionals, and the defendants had not engaged in similar transactions in the past, arguably except for the sale of a home in 2004 to their daughter. The primary reason the plaintiffs' argument is unavailing is because the Dover property was Rosalie and Giuseppe's residence for about a decade. This is in stark contrast to "flipping" a house, where a seller purchases a property, renovates it, and may incidentally live at the property during the period before they are able to sell the property, but where it is evident from the circumstances that it was not intended as a long term residence.

In addition, the existence of J.F. Contracting vehicles being stored on occasion or Rosalie's keeping of the books for J.F. Contracting and their real estate endeavors at the Dover property does not alter our conclusion. Regardless of the level of "business" those actions constituted, they are separate from the transaction at issue. Here, we are dealing with a private sale of a home, and even though the sellers engaged in various business endeavors somewhat tangentially related to the transaction at issue, this sale was private in nature.

In addition, certain actions taken by Rosalie and Giuseppe, such as their active participation in the sale process and their motivation to sell, were customary when selling a private residence and therefore do not factor toward a conclusion that they were acting in a business context. By assisting with the listing information and by showing the plaintiffs the Dover property, Rosalie and Giuseppe were active participants in the transaction, but this level of participation is customary when selling one's private residence. Moreover, although the plaintiffs contend that Rosalie and Giuseppe's motivation in renovating and selling the Dover property was the same as with their other properties, i.e.,

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to generate wealth, in the context of selling a residential property that has been lived in for about a decade, this factor does not tip the scales toward bringing the transaction out of the private realm. Hoping to make a profit by selling a property that one has lived in for many years, after making renovations or other improvements, is simply a typical process that many homeowners undertake.

Because the sale was private in nature, and therefore not subject to G. L. c. 93A, the defendants were entitled to a directed verdict or judgment notwithstanding the verdict.

b. Implied warranty of habitability. The defendants argue that the trial judge should have allowed their motion for a directed verdict or judgment notwithstanding the verdict on the implied warranty of habitability claim because the Dover property was not a new home and they are not builder-vendors. We agree that there was insufficient evidence that the defendants were builder-vendors and therefore conclude that the defendants' motion for a directed verdict or judgment notwithstanding the verdict should have been allowed.

The purpose of the implied warranty of habitability that attaches to the sale of new homes by builder-vendors "is to protect a purchaser of a new home from latent defects that create substantial questions of safety and habitability. . . . [A] home that is unsafe because it deviates from fundamental aspects of the applicable building codes, or is structurally unsound, or fails to keep out the elements because of defects of construction, would breach the implied warranty." Albrecht v. Clifford, 436 Mass. 706, 710-711 (2002). "To establish a breach of the implied warranty of habitability a plaintiff [has] to demonstrate that (1) he [or she] purchased a new house from the defendant-builder-vendor; (2) the house contained a latent defect; (3) the defect manifested itself only after its purchase; (4) the defect was caused by the builder's improper design, material, or workmanship; and (5) the defect created a substantial question of safety or made the house unfit for human habitation." Id. at 711-712. At issue in the present case is whether the first prong has been met.

The evidence was insufficient to show that the defendants were builder-vendors. Although Massachusetts law does not expressly define "builder-vendor," persons considered "builder-vendors" under our implied warranty of habitability jurisprudence have included builders of new residential condominium developments and homes. See Berish v. Bornstein, 437 Mass. 252, 254-255, 262-263 (2002) (defendant constructed condominium

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development); Albrecht, 436 Mass. at 707-708 (defendant constructed new single-family home). In determining whether a party is a builder-vendor for purposes of the implied warranty of habitability, other jurisdictions have focused on whether the house was "built for the purpose of sale to the public" (quotation omitted), Mobley v. Copeland, 828 S.W.2d 717, 728 (Mo. Ct. App. 1992), and relatedly, whether the sale was commercial in nature, rather than personal or casual, see Mazurek v. Nielsen, 599 P.2d 269, 271 (Colo. Ct. App. 1979); Mobley, supra at 728-729; Bolkum v. Staab, 133 Vt. 467, 469-470 (1975); Klos v. Gockel, 87 Wash. 2d 567, 570 (1976). These considerations are in line with the actions of the defendants in Berish and Albrecht.

In the present case, it is undisputed that the defendants were not involved in the original construction of the house. In support of their position that Rosalie and Giuseppe are builder-vendors, the plaintiffs point to evidence showing that Giuseppe completed some of the renovation work himself. [Note 9] Giuseppe also hired contractors to complete other portions, such as the installation of the kitchen cabinets, installation of a new gas line, and demolition of walls. However, the mere completion of renovations to one's private residence does not make him or her a builder-vendor. Moreover, the sale of the Dover property was personal in nature. Rosalie and Giuseppe lived in the Dover property for years before beginning renovations and then lived in the property for at least a year before listing it for sale. [Note 10] The present circumstances stand in stark contrast to a developer building a new home for the express purpose of selling it. See Berish, 437 Mass. at 254-255 (defendant constructed condominium development); Albrecht, 436 Mass. at 707-708. For the foregoing reasons, we conclude that the evidence was insufficient to show that the defendants

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were builder-vendors, and the defendants therefore were entitled to directed verdicts and judgments in their favor on the implied warranty of habitability claim. [Note 11]

2. Damages. The defendants next argue that the judgment reflects duplication of damages, an unjust windfall for the plaintiffs, and manifest injustice. Further, the defendants contend the damages under G. L. c. 93A should be awarded jointly, rather than severally. Because we determined supra that the defendants' motion for judgment notwithstanding the verdict should have been granted on the c. 93A and warranty of habitability claims, we need not determine these issues, as the award of damages on those claims must be vacated.

3. Fraud and misrepresentation. The plaintiffs argue that the motion judge erred in granting summary judgment in favor of the defendants on the plaintiffs' claim of fraud and misrepresentation. We conclude that the motion judge properly granted summary judgment on this claim.

We review a grant of summary judgment de novo to determine whether there are any genuine issues of material fact. Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012). In doing so, we view the evidence in the light most favorable to the nonmoving party. Id.

"[A] plaintiff alleging a claim for deceit (i.e., fraud) must show the defendant (1) made a false representation of material fact, (2) with knowledge of its falsity, (3) for the purpose of inducing the plaintiff to act on this representation, (4) which the plaintiff justifiably relied on as being true, to her detriment" (citations omitted). Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). "Deception need not be direct to come within reach of the law. Declarations and conduct calculated to mislead and which in fact do mislead one who is acting reasonably are enough to constitute fraud." Boston Five Cents Sav. Bank v. Brooks, 309 Mass. 52, 55 (1941). In addition, "[f]ragmentary information may be as misleading . . . as active misrepresentation, and half-truths may be as actionable as whole lies" (citation omitted). Kannavos v. Annino, 356 Mass. 42, 43, 48-49 (1969), and cases cited (intentionally deceptive and fraudulent where defendants marketed property as investment property

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due to multifamily use when in fact zoning ordinance banned mutlifamily use, and defendants knew purchasers planned to use property for apartments but did not disclose zoning violations). Moreover, "where there is reliance on fraudulent representations or upon statements and action treated as fraudulent, our cases have not barred plaintiffs from recovery merely becuase they 'did not use due diligence . . . [when they] could readily have ascertained from . . . records' what the true facts were. Id. at 49-50, quoting Yorke v. Taylor, 332 Mass. 368, 373 (1955).

The plaintiffs argued in their amended complaint that the defendants represented that renovations were made to the Dover property, but (1) they failed to disclose that they did not apply for building permits, nor did the Dover building department (department) inspect the renovations or issue a certificate of occupancy; (2) they knew or should have known that the kitchen renovations did not comply with the requirements of the department; and (3) they had a duty to disclose the foregoing information to the plaintiffs before the plaintiffs purchased the property. In addition, the plaintiffs argued in opposition to summary judgment that the during the sale process, the defendants highlighted the renovations. This highlighting included stating in the marketing materials that the Dover property had a "[m]agnificent young gourmet kitchen," and "fantastic Tuscan-style [four] season room with authentic brick oven and grill," and that during the preclosing inspection, Rosalie and Giuseppe verbally emphasized the renovations.

In granting summary judgment in favor of the defendants on this claim, the motion judge reasoned that "[s]ilence does not constitute a basis for claiming fraud and misrepresentation, even where a seller may have knowledge of some weakness in the subject of the sale and fails to disclose it" (citations omitted). See Urman v. South Boston Sav. Bank, 424 Mass. 165, 168 (1997). The motion judge also noted that the plaintiffs had had an inspection of the Dover property before the purchase and that they did not take the inspector's advice to check the municipal records "to ensure that any necessary permits were obtained" for the renovations.

The plaintiffs argue on appeal that the defendants' written and oral representations concerning the renovations rose to the level of fraud, under the theory that "[f]ragmentary information may be as misleading . . . as active misrepresentation, and half-truths may be as actionable as whole lies" (citation omitted). Kannavos, 356 Mass. at 48.

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Although in Kannavos, we held that suggesting that a property was suitable for a particular purpose when that purpose was prohibited was "intentionally deceptive and fraudulent," in the present case the defendants' conduct is closer to "bare nondisclosure." Kannavos, supra at 47, 49. See Swinton v. Whitinsville Sav. Bank, 311 Mass. 677, 677-679 (1942) ("nonliability for bare nondisclosure" where seller knew house had termite infestation at time of sale, which buyer could not readily observe upon inspection, but seller did not inform buyer of infestation). Here, the defendants did not make representations that were intended to cause the plaintiffs to believe something that was untrue. Cf. Maxwell v. Ratcliffe, 356 Mass. 560, 562-563 (1969), citing Kannavos, supra at 42, 46-50 ("Because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect to which they had been put on notice"). With regard to the lack of permits and faulty work, the defendants' actions reflect a failure to reveal, see Swinton, supra at 678 ("If this defendant is liable on this declaration every seller is liable who fails to disclose any nonapparent defect known to him in the subject of the sale which materially reduces its value and which the buyer fails to discover"), rather than "[d]eclarations and conduct calculated to mislead." Boston Five Cents Sav. Bank, 309 Mass. at 55. Accordingly, even viewing the evidence in the light most favorable to the plaintiffs, the defendants were entitled to a judgment as a matter of law on the claim of fraud and misrepresentation.

4. Jury consultant fees. The plaintiffs contend that the trial judge erred in denying fees and costs associated with their jury consultant. In their motion for attorney's fees and costs, the plaintiffs sought to recover $105,000 for jury consultant fees. [Note 12] The trial judge concluded that the requested jury consultant fees were excessive and unreasonable, and that awarding such expenses under G. L. c. 93A was unsupported by Massachusetts authority. Although we need not reach the issue, given our conclusion that the plaintiffs are not entitled to recover under c. 93A, we nevertheless address the matter, as it is an important, unresolved issue that has been fully briefed. See Ferman v. Sturgis Cleaners, Inc., 481 Mass. 488, 491 n.7 (2019). We conclude

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that jury consultant fees are not recoverable under G. L. c. 93A.

General Laws c. 93A, § 9 (4), provides that a prevailing plaintiff "shall . . . be awarded reasonable attorney's fees and costs incurred in connection with [the] action." Our cases have clarified the types of costs recoverable under this seemingly broad standard, but this case presents us with the novel issue whether jury consultant fees are recoverable.

The jury consultant provided the plaintiffs with various assistance before and during the trial, including conducting a mock voir dire and jury trial and analyzing data obtained during those exercises; providing the plaintiffs with a report about the jury pool; working with the plaintiffs on voir dire, opening statements, and testimony; and being present in court to assist with jury selection. Although, as the plaintiffs argue, a jury consultant may provide a service that aids attorneys in providing more effective representation, the cost associated with such a consultant is dissimilar to the types of costs contemplated by the Legislature and previously allowed by our courts as recoverable under G. L. c. 93A. Cf. Yorke Mgt. v. Castro, 406 Mass. 17, 19 (1989) (appellate attorney's fees); Linthicum v. Archambault, 379 Mass. 381, 389 (1979), overruled on other grounds by Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 418 Mass. 737 (1994) (expert witness fee); O'Connor v. Brophy, 55 Mass. App. Ct. 909, 909 (2002) (costs associated with removal of case). Unlike the services associated with trial attorney's fees, appellate attorney's fees, expert witness fees, or removal of a case to a different court, a jury consultant provides a luxury service. This luxury service is not one the Legislature intended to be recoverable under c. 93A.

Conclusion. For the foregoing reasons, we conclude that the defendants' motions for a directed verdict or judgment notwithstanding the verdict should have been allowed on the G. L. c. 93A and warranty of habitability claims. The award of damages to the plaintiffs on the c. 93A claim, including the award of attorney's fees and costs, and on the warranty of habitability claim are vacated, and judgment shall enter for the defendants on those claims. The judgments are otherwise affirmed. [Note 13]

So ordered.