T. Butera Auburn, LLC v. Williams

Grainger, J.

(dissenting in part). I conclude on this record that the judge was correct in doubling the jury award of $13,000 in G. L. c. 93A damages to $26,000.1 do not read the fifth paragraph of G. L. c. 93A, § 11, inserted by St. 1989, c. 580, § 2 (amendment),¹ as requiring the judge also to double the entirety of the breach of contract damages — in this case $87,500. Accordingly, I respectfully dissent from that portion of the majority decision.

The amendment is certainly not a model of legislative clarity.² It is clear, however, that the amendment does not support doubling damages separately awarded on other claims, albeit arising out of related facts, simply because a lawsuit, predictably, includes a claim under c. 93A.³

The problem in this case, as in so many others, is distinguishing a claim that arises out of the “same underlying transaction or occurrence” from one that merely appears in an ongoing narrative of successive occurrences. Fortunately the jury provided their own view in this particular case, and it is not our province to reverse that decision.

To the extent that the plaintiffs (collectively, Butera) sought a multiple damages award, it was their burden to establish that the conduct of the defendants (collectively, Williams) was unfair or deceptive, or arose from the same “transaction or occurrence.” Butera’s lawsuit complained of numerous acts by Williams. Some of these acts were directly related to specific contract provisions and would otherwise not be considered actionable. For example, there was evidence that Williams sent letters to referral sources announcing her new practice. This was not inherently unfair or deceptive, and would not have been actionable absent the contractual nonsolicitation clause, which is the very reason such clauses are negotiated. Other evidence, however, such as Williams’s conduct in the role of landlord, had no direct relationship to the underlying transaction (the contract of sale) and could be viewed as entitling Butera to damages only because the actions were unfair or deceptive.

Still other evidence might be viewed as falling in either category: For example, Williams’s new veterinary practice was outside the geographic restriction of thirty miles agreed upon by the parties and, arguably, not a contract breach. On the other hand, the jury could have concluded on this record that Williams undertook competitive acts which produced an intended effect within the thirty miles or that, for example, the statements on the new Web site about her ongoing practice arose from the same “underlying” occurrence.

In sum, the jury had considerable latitude to characterize each act as unfair and deceptive, or as exclusively a breach of contract, or as arising — or not arising — from a common underlying occurrence. In considering the evidence, the jury found that some, but far from all, of the damages incurred by William’s contract violations arose from the same occurrences as those giving rise to c. 93A damages. In this context it bears repeating that a breach of contract standing alone is not sufficient as a matter of law to support a c. 93A violation. See Zabin v. Picciotto, 73 Mass. App. Ct. 141, 169 (2008). In the jury’s determination, Butera satisfied its burden on the issue of identical underlying transactions to the extent of $13,000 in damages, but not more.⁴

If Butera wished to have the jury express the view that the entirety of the breaching conduct as well as the unfair or deceptive conduct under c. 93A constituted, or arose from, the same occurrence, the verdict slip could have framed that specific question. My colleagues assign significance to the form of the special verdict slip, to which Butera agreed, because it instructed the jury not to duplicate damages. In my view only a contrary instruction, directing the jury to actually award duplicate damages, would have been significant — as palpable error. See Calimlirn v. Foreign Car Center, Inc., 392 Mass. 228, 235-236 (1984).⁵ Here the jury were allowed, with Butera’s consent, to determine whether damages arising from various acts could be distinguished on the basis of underlying transactions, and they did so: they calculated Butera’s total damages as $100,500, comprised of $87,500 resulting from the contract breach and $13,000 resulting from Williams’s violation of c. 93A.

Because the amendment does not require separate awards on separate claims to be multiplied merely because they are accompanied by the inevitable claim of a violation of c. 93A, the amended summary judgment was correct and should be affirmed.

1 The amendment provides as follow: “For the purposes of this chapter, the amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence regardless of the existence or nonexistence of insurance coverage available in payment of the claim.”

2 Indeed, we have previously observed that “it is unclear what was meant by the [amendment’s] phrase ‘all claims arising out of the same and underlying transaction or occurrence.’ ” Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 748, 753 (1996). The Supreme Judicial Court has noted that the language was added by the Legislature in response to cases where courts “limited the measure of multiple damages against a bad faith insurer to the plaintiff’s Toss of use damages, measured by the interest lost on the amount the insurer wrongfully failed to provide the claimant.’ ” R.W. Granger & Sons, Inc. v. J & S Insulation Inc., 435 Mass. 66, 83 (2001).

3 The disproportionate effect of doubling or tripling a multimillion dollar award of which only a small fraction is deemed attributable to unfair and deceptive conduct, even though all claims arise from “the same underlying transaction,” is self-evident. The Supreme Judicial Court has recognized the potential substantive due process implications of such a result. Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 503-504 (2012). See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-585 (1996).

4 I do not necessarily disagree (or agree) with the majority’s characterization of Williams’s entire behavior as a comprehensive premeditated scheme to deprive Butera of any and all benefit from the purchase of the practice. As noted above, such a finding is the jury’s — and not ours — to make.

5 The actual language of the admonition contained in the jury slip is instructive:

“Caveat: There are numerous claims and counterclaims in this case. In some instances some claims are made in the alternative, meaning there may be alternative theories to recovery on the same claim. Any damages you may assess, if any, should not be duplicative of other claims. In other words, the questions on this verdict slip which make reference to the issue of duplication should allow you to return a verdict which will avoid a double recovery for what you find to be the same claim.” (Emphasis added.)