ALFORD v. CAPITOL REALTY GROUP INC (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a bench trial, a Superior Court judge entered an order and judgment finding that the defendant, Capitol Realty Group, Inc. (Capitol), had violated G. L. c. 93A by withholding insurance proceeds that were designated to be paid to the plaintiff. The judge also found, however, that the plaintiff failed to prove the amount of her actual damages due to the c. 93A violation, and that the c. 93A violation was not knowing and willful. The judge accordingly awarded a total of $ 50 in statutory damages, and subsequently awarded $ 15,000 in attorney's fees, plus expenses. The plaintiff appeals. We affirm.

Background. The case arises out of a water leak at a condominium building at 27 Anderson Street in Boston. The plaintiff, Sarah Alford, owned condominium unit 6. From 2005 until 2008 water leaked into unit 6 from higher floors in the building, causing substantial damage to unit 6. The leak was eventually sourced as arising from a bathtub in another unit, and was finally repaired in 2008.

The plaintiff brought several claims against a number of defendants, but on this appeal all that remains is a single count, under c. 93A, against a single defendant, Capitol.² Capitol was the property management company responsible for managing the 27 Anderson Street condominium building during the period in question. The condominium building was governed by the 27 Anderson Street Condominium Trust (trust), which in turn hired Capitol to manage the building. The trust maintained property insurance and when the leak at issue occurred, a claim was made with the insurer under the trust's policy. The insurer in turn approved the claim and remitted a check for $ 5,609 to Capitol, as agent, on May 22, 2007. Of that amount, the insurer specifically designated $ 4,656 to be paid to the plaintiff.

The plaintiff's c. 93A claim is based upon the fact that Capitol failed and refused to pay over the $ 4,656 check (and a subsequent check, for $ 44) for the next eighteen months. Instead, the principal of Capitol, Jeffrey Miller, insisted that the plaintiff first sign a release of Capitol, and a release of Miller himself, before Capitol would transfer the check. The plaintiff refused to sign the release, and instead sent c. 93A demand letters demanding payment; she eventually filed suit in March of 2008. Capitol did not pay over the insurance proceeds until December of 2008.

The judge held a one-day bench trial on the c. 93A claim in November of 2016. Both parties were represented by counsel. Shortly after trial the judge entered written findings of fact and conclusions of law, in which he concluded that Capitol had violated c. 93A by withholding the check:

“Denying someone their rightful property to coerce signing a legal document has an extortionate quality falling well within the penumbra of common-law, statutory or other established concept of unfairness and is, at least, oppressive. The act caused injury in the form of, at least, loss of use of the money, measurable by an award of interest.”

The judge went on to make two other significant rulings: first, he ruled that although the plaintiff had shown cognizable injury, in the form of the loss of the use of the money withheld, the plaintiff had failed to prove any specific amount of damages at trial and thus the judge could award no more than the statutory minimum of $ 25 for each check withheld. Second, he found that Miller had withheld payment “upon advice of counsel and with instructions of the Condominium Association,” and thus concluded that the violation was not willful or knowing. Judgment accordingly entered for $ 50 in statutory damages. The plaintiff was invited to file a motion for an award of attorney's fees and costs, as authorized under c. 93A, and she subsequently did so.³

Discussion. On appeal the plaintiff, now pro se, in essence raises two challenges to the judge's conclusions and judgment. First, the plaintiff urges that the judge should have awarded actual damages. Among other things, the plaintiff asks that her “legal bills be reassessed and considered for punitive multiplication.” Second, the plaintiff claims that the judge erred in finding that the c. 93A violation was not knowing or willful.

Each of the plaintiff's arguments are primarily factual in nature, and contest the facts found by the judge. These arguments are unavailing. First, the judge's finding that the plaintiff did not prove specific damage can only be overturned if clearly erroneous. See Meikle v. Nurse, 474 Mass. 207, 208 (2016). Here, the plaintiff has not provided a transcript of the trial from which we can assess clear error, as is required by Mass. R. A. P. 8 (b) (1), as amended, 430 Mass. 1603 (1999) (“If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion”).⁴

Second, and in any event, the judge's findings noted that the plaintiff's damages evidence was “very general [and] not supported by documentation.” The plaintiff's argument on appeal suffers from the same flaw. The plaintiff urges that the judge overlooked facts; she argues, for example, that the judge failed to consider “interrogatories that itemize damages.” But these damages arguments are advanced without providing any additional detail, or any record citation. A reference to unspecified “damages,” or to an unidentified interrogatory answer, cannot suffice to overturn a finding after trial.

The plaintiff also suggests that the attorney's fees she incurred in pursuing her claims qualify as damages under c. 93A. Again, the record does not show that the plaintiff put in evidence of her attorney's fees as damages at trial,⁵ nor does it show that she made this damages argument to the judge. But in any event, the plaintiff's attorney's fees here are not recoverable as c. 93A damages. See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 801 (1976).

The plaintiff also challenges the judge's finding that the c. 93A violation was not knowing or willful, but that argument suffers from the same basic flaw as her argument with respect to damages. The judge's finding is a finding of fact, and it may only be overturned if it is clearly erroneous. To find clear error we would first have to review the relevant record evidence, and be left with a “definite and firm conviction that a mistake has been made.” Martin v. Simmons Props., LLC, 467 Mass. 1, 8 (2014), quoting Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637 (2010) (Mahlowitz). In ruling as he did the judge relied on Miller's testimony as to why he withheld payment, but Miller's complete trial testimony has not been provided to us. See note 3, supra. The plaintiff in her brief claims that Miller's trial testimony -- to the effect that he was acting upon the advice of counsel and the condominium association -- was a recent creation, and inconsistent with Miller's prior deposition testimony (which the plaintiff does provide). But addressing and resolving alleged inconsistencies in testimony is for the trial judge, who has the benefit of hearing the testimony firsthand. See New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). There is no basis for overturning the judge's finding on the record before us.⁶ See Mahlowitz, 456 Mass. at 637 (“It is the appellant's burden to show that a finding of fact is clearly erroneous” [quotation and citation omitted] ).

Judgment affirmed.

FOOTNOTES

2.   This case has been before us once before, on appeal from a judgment granting summary judgment as to all claims then outstanding. Alford v. Capitol Realty Group, Inc., 88 Mass. App. Ct. 1106 (2015). This court affirmed the dismissal of all counts other than the c. 93A claim against Capitol. The c. 93A claim was remanded for trial, and this appeal is from the resulting judgment.

3.   The judge awarded $ 15,000 in fees and $ 2,745.98 in costs. The plaintiff had requested approximately $ 95,000 in fees.

4.   The plaintiff provided a very limited excerpt of the trial transcript, approximately five pages long. This excerpt does not address damages at all. The excerpt also is obviously not complete as to Miller's testimony.

5.   Evidence of fees incurred was submitted after judgment, in connection with the plaintiff's fee request.

6.   We note that on appeal Capitol does not challenge the ruling that withholding the checks was a c. 93A violation. The checks were issued to the trust based upon the trust's insurance policy, with a specific amount earmarked for the plaintiff. The money was not Capitol's money, and Capitol's withholding of the money in order to secure a benefit for itself and its principal -- the release -- was improper and an unfair trade practice.