Following a trial, the jury, in response to special questions, found that Bass River had breached its management contract with the city, that Tozer had guaranteed Bass River's payment obligations, and that the city was entitled to damages of $631,969.63. The jury also found that the city had violated the covenant of good faith and fair dealing in its contractual relationship with Bass River, and that the city had converted Bass River's property. The jury awarded Bass River damages of $48,967.33. Thereafter, the judge determined that Bass River had not proved that the city violated G. L. c. 93A.
Bass River and Tozer filed a motion to amend the findings of facts and rulings of law, to amend the judgment, or, in the alternative,
1. Background. The jury could have found the following facts. As of January 1, 2005, the city entered into a five-year management contract with Johnson Golf Management, Inc. (Johnson Golf), whereby Johnson Golf agreed to manage, control, and operate the Golf Club, and to collect related fees from permit holders, in exchange
The management contract provided that the city would keep the Golf Club compliant with all Federal, State, and local laws, rules, and regulations. Johnson Golf was solely responsible for maintaining and repairing the buildings and the grounds, including the golf course and the interior of the clubhouse,
Over time, the relationship between Johnson Golf and the city deteriorated. On April 3, 2008, Johnson Golf agreed to assign its rights, interests, and obligations under the management contract to Bass River for $620,750, plus $50,500 for certain equipment,
To induce the city to execute the assignment with Bass River, Tozer provided a written guaranty to the city. It unconditionally guaranteed full and punctual payment "of all sums which may be presently due and owing and of all sums which shall in the future become due and owing to the City from Bass River." Among other matters, Tozer also agreed that its liability was "the lesser of $600,000.00 or such sums as may, from time to time, be due to the City by Bass River under the Management Contract." The guaranty was signed by Barros, as manager of Tozer.
Once Bass River started operating the Golf Club, it made numerous improvements to the facility in an effort to increase the number of permit holders. In September, 2008, the city's mayor sought, and the city council approved, a $1.5 million bond to pay for capital improvements to the golf course, the clubhouse, and a maintenance building that needed environmental remediation. Architectural and engineering work was initiated, and repairs were undertaken. During the time that Bass River was managing the Golf Club, the city spent approximately $130,000 on various repairs and improvements.
By late 2009, Bass River had fallen significantly behind in its payments to the city under the management contract, by then owing the city over $600,000. The mayor decided not to extend the contract with Bass River for an additional five-year term, choosing instead to hire a new manager for the Golf Club.
The filing of a voluntary bankruptcy petition operates as an automatic stay of "the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the [bankruptcy] case."
The automatic stay provisions of the Bankruptcy Code only apply to a "proceeding against the [petitioning] debtor," not against others.
The present appeal is a continuation of the judicial action against Bass River and Tozer that was commenced by the city prior to Tozer's initiation of bankruptcy proceedings. The parties assert, and we agree, that none of the exceptions to the automatic stay provisions, set forth in
An appellate court reviews the denial of a motion for a directed verdict under the same standard applied by the trial judge. See O'Brien v. Pearson,
As a preliminary matter, the city argues that Bass River has waived its right to seek appellate review of the denial of its motion for a directed verdict because it did not renew such motion at the close of all the evidence. We agree. Notwithstanding the fact that several relevant portions of the transcript are largely inaudible, there is nothing to suggest that Bass River renewed its motion for a directed verdict at the conclusion of the presentation of its own evidence, or that it attempted to reconstruct the transcript to reflect the fact that this motion had been
Even if that were not the case, we are satisfied that the city presented sufficient evidence from which the jury could reasonably conclude that Bass River breached the management contract. See Singarella v. Boston,
Construing the evidence in the light most favorable to the city, the jury could have determined that the city did not materially
In addition, the jury could have found that there was insufficient evidence to support Bass River's claim that it suffered
4. Motion to amend the judgment or for a new trial. Bass River argues that the judge erred in denying its motion to amend the judgment, or, in the alternative, for a new trial. In Bass River's view, the jury's verdict in favor of the city on its breach of contract claim was against the weight of the evidence, and therefore, judgment should have entered for Bass River. Alternatively, Bass River contends that the judge erred in denying its motion for a new trial because the verdict for the city suggested that the jury misunderstood the principle of contract law that a material breach by one party excuses performance by the other party.
A trial judge should set aside a jury verdict in a civil case only if the judge concludes that "the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion." W. Oliver Tripp Co. v. American Hoechst Corp.,
Here, we conclude that the judge did not abuse his discretion in denying Bass River's motion to amend the judgment or for a new trial. As previously discussed, the jury reasonably could have found that the city did not materially breach the management contract such that Bass River, in turn, was excused from satisfying
5. Jury instructions. Bass River contends that the judge erred in two respects with regard to his jury instructions, thereby causing prejudice. First, Bass River argues that, over its objection, the judge refused to instruct the jury that Bass River could recover out-of-pocket losses incurred as a consequence of its reliance on the city's representations that the clubhouse would be made accessible to persons with disabilities. Second, Bass River argues that, over its objection, the judge improperly instructed the jury that if they found that the city had conferred a benefit on Bass River under the management contract, then the city was entitled to reimbursement for such benefit, irrespective of any breach of the contract by the city. Given these purported instructional errors, Bass River claims that it was entitled to a new trial on its counterclaims against the city. We disagree.
"A judge should instruct the jury fairly, clearly, adequately, and correctly concerning principles that ought to guide and control their action." Selmark Assocs., Inc. v. Ehrlich,
Contrary to Bass River's argument that the judge failed to instruct the jury on damages for out-of-pocket losses, the judge did, in fact, instruct on compensatory damages.
With regard to the judge's instruction that the city was entitled to reimbursement for benefits conferred on Bass River, irrespective of any breach of the
6. Counterclaim under G. L. c. 93A. Finally, Bass River argues that the judge erred in dismissing its counterclaim pursuant to G. L. c. 93A, § 11. In Bass River's view, the judge incorrectly determined that the city was not engaged in "trade or commerce" when dealing with Bass River and, further, that even if the city was so engaged, the city's conduct was not unfair or deceptive within the meaning of the statute.
When reviewing the judge's decision, we accept his findings of fact unless they are clearly erroneous, and we consider his conclusions of law de novo. See Anastos v. Sable,
General Laws c. 93A is designed "to encourage more equitable behavior in the marketplace ... [and to impose] liability on persons seeking to profit from unfair practices." Poznik v. Massachusetts Med. Professional Ins. Assn.,
To prevail on its c. 93A claim, Bass River was required to show that the city engaged in "[u]nfair methods of competition" or "unfair or deceptive acts or practices." G. L. c. 93A, § 2, as amended by St. 1978, c. 459, § 2. When considering whether an act or practice is unfair, we assess "(1) whether the practice ... is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers (or competitors or other business[people] )." PMP Assocs., Inc. v. Globe Newspaper Co.,
Appellate courts have consistently held that a mere breach of contract, without more, does not amount to a violation of G. L. c. 93A. See Whitinsville Plaza, Inc. v. Kotseas,
Here, based on the evidence presented at trial, the judge stated that Bass River was aware of the physical condition of the clubhouse, including the fact that the second floor was not accessible to persons with disabilities, when it entered into the assignment of the management contract. The judge further stated that no legally authorized agent for the city had made binding representations concerning a specific time frame for the completion of renovations to the clubhouse, and the management contract was silent on the matter. In addition, the judge stated that, although financial constraints precluded the city from immediately performing all of the repairs and improvements contemplated by the management contract and the Gale reports, the city did undertake such projects as municipal finances permitted. On that basis, we cannot say that the city's dealings with Bass River rose to the level of unscrupulous, coercive, or "[i]ntentionally gainful misconduct" that is characteristic of wrongdoing under G. L. c. 93A. McGonagle v. Home Depot U.S.A., Inc.,
7. Conclusion. The appeal filed by Tozer is hereby stayed until such time as the automatic stay in the bankruptcy case terminates in accordance with
So ordered.
Notes
Because the clubhouse was on the State register of historic places, all interior maintenance had to be done in accordance with the rules and regulations of the Massachusetts Historical Commission.
During the tenure of the new manager, lifts were installed in the clubhouse to facilitate access to the second floor by persons with disabilities.
By agreement dated November 10, 2016, the city sold, assigned, and transferred all of its claims and interests against Tozer to Bass River Tennis Corporation for $375,000.
We have concurrent jurisdiction with the Bankruptcy Court to determine the applicability of the automatic stay provisions of the Bankruptcy Code. See Lombardo v. Gerard,
In its reply brief, Bass River does not address this waiver issue.
In his final charge, the judge instructed the jury that Bass River "may be excused from making payments to the City if the City was in material breach of the [parties'] contract," and that "[a] material breach of an agreement occurs when there is a breach of an essential and inducing feature of the contract." See Lease-It, Inc. v. Massachusetts Port Authy.,
In reaching this decision, we do not intend to minimize the importance of compliance with AAB regulations but, rather, confine ourselves to the sole issue whether Bass River can escape liability on the basis of the city's noncompliance with those regulations, where it was fully aware of the city's noncompliance when it contracted with the city.
The judge instructed the jury, in part, as follows: "The purpose of the law in awarding damages is to compensate an injured party for the loss incurred because of another's breach of conduct. The object is to try to restore the party to the position that it would have been in had the wrong not occurred."