Smith v. Jenkins
2011 U.S. Dist. LEXIS 117553
D. Mass.2011Background
- First Circuit dismissed Smith's appeal as premature because 93A claims against Jenkins, Bertucci, and NEMC remained pending.
- Judgments entered Nov. 1, 2010: $50,000 against Century 21, NEMC, and Union for fraud and breach of fiduciary duty; $25,000 against Bertucci for fraud; $85,000 against Jenkins for fraud, breach of contract, and breach of fiduciary duty.
- In late 2010–2011, motions for judgment as a matter of law on 93A claims were granted against most movants except Bertucci; proceedings on Bertucci’s 93A claims were stayed pending appeal.
- Jenkins orchestrated a mortgage scheme; Taylor and others produced false financial profiles to obtain loans for Smith, who signed documents without understanding their significance.
- NEMC branch manager Noyes provided false loan applications, with material misstatements about Smith’s income, education, residence, and other factors; Noyes acted within NEMC’s employment.
- Bertucci, the closing attorney, directed Smith to sign loan documents despite indications that Smith lacked understanding; Bertucci knew both properties were claimed as principal residences and that inconsistencies existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a Chapter 93A violation by Jenkins, Bertucci, and NEMC? | Smith asserts deceptive practices and unfair methods by those defendants. | Defendants contend no 93A violation or that conduct fell outside 93A scope. | Yes, 93A violation found against Jenkins, Bertucci, and NEMC. |
| Does NEMC bear vicarious liability for Noyes's fraudulent acts? | Noyes acted within scope of employment and to principal's benefit, binding NEMC. | Noyes was an independent contractor and not acting within principal's control. | NEMC liable for Noyes's acts; actual and apparent authority findings support liability. |
| Are damages to Smith subject to Chapter 93A trebling and what is the amount? | Damages should be trebled for willful/knowing violations. | Chapters 93A damages limited or contested; treble awards require egregious conduct. | Jenkins and Bertucci treble damages; NEMC doubled; total awards set accordingly. |
| Are attorney's fees and costs properly awardable under §9(4) and how should they be calculated? | Fees and costs should be awarded consistent with §9(4) and flexible due to complex, overlapping claims. | Fees should reflect apportionment across claims and defendants. | Fees awarded; apportionment adjustments made; costs awarded in full. |
Key Cases Cited
- Hershenow v. Enter. Rent-A-Car Co. of Boston, Inc., 445 Mass. 790 (Mass. 2006) (injury includes invasion of legally protected interests)
- Shawmut Cmty. Bank, N.A. v. Zagami, 411 Mass. 807 (Mass. 1992) (consumer status under 93A §9 vs §11; broader 93A reach)
- Twin Fires LLC v. Morgan Stanley Dean Witter and Co., 445 Mass. 411 (Mass. 2005) (apportionment and fee considerations in 93A context)
- Int'l Fid. Ins. Co. v. Wilson, 387 Mass. 841 (Mass. 1983) (egregiousness and multiple damages framework)
- R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66 (Mass. 2001) (scope of 93A inquiry and related principles)