ALAN ANTOKAL v. SPRING VALLEY COUNTRY CLUB INC (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Alan Antokal and Steven Robinson (plaintiffs) brought this action against 25 Tiot Holdings and the Cape Club of Sharon (defendants), asserting claims of, among others, negligent misrepresentation and unfair or deceptive trade practices in violation of G. L. c. 93A, § 11 (c. 93A). Following a trial in the Superior Court, a jury found the defendants liable for negligent misrepresentation, and the trial judge, reserving the c. 93A claim for herself, found that the defendants willfully and knowingly violated c. 93A. The trial judge awarded $2,434,095.51 in treble damages and $832,686.70 in attorney's fees and costs. On appeal, the defendants argue that the trial judge erred by finding that (1) the challenged conduct did not constitute an intra-enterprise dispute, (2) the defendants violated c. 93A, and (3) the violation was willful and knowing.⁴ We vacate the judgment to the extent judgment entered on the plaintiffs’ c. 93A claim, and we remand for further findings consistent with this memorandum and order.

Background. This action stems from an underlying lawsuit pursuant to G. L. c. 149, § 152A, the Tips Act, in which the plaintiffs in this appeal were named as defendants. In the Tips Act lawsuit, a former employee of Spring Valley Country Club (Spring Valley), sued the plaintiffs and Spring Valley on behalf of a class of Spring Valley waitstaff. In the complaint, the former employee alleged that between 2011 and 2016 Spring Valley added a “house charge” to the cost of food and beverages served at functions held at the club, and that the money received through that charge should have been distributed to Spring Valley's waitstaff pursuant to the Tips Act. The plaintiffs were named as defendants in the Tips Act lawsuit due to their roles as president of Spring Valley during the relevant period.⁵

In 2015 and 2016, while the Tips Act lawsuit was pending, Spring Valley had financial difficulties, including difficulty paying amounts due on a $6.5 million loan memorialized by a note held by Citizens Bank. In spring 2016, Citizens Bank sold the note to Origins, LLC, which was considering foreclosing on the note and closing the country club.

In May 2016, Robinson met with Michael Intoccia, who expressed that he, along with financial backers Mark Wahlberg and Jeffrey Weintraub, had an interest in acquiring the note. At another meeting later that month, Robinson informed Intoccia about the Tips Act lawsuit and asked whether the lawsuit would be an impediment to the proposed transaction. Intoccia responded that the Tips Act lawsuit was “not going to be a problem,” and that he and his financial backers would offer a settlement to make the case “go away.” During a third meeting a few days later, at which Intoccia's attorney was present, Intoccia repeated his promise to “take care” of the Tips Act lawsuit. Intoccia repeated the promise once again at a meeting with Robinson and Spring Valley's general manager, Carol King. At trial, King testified that Intoccia did not seem “phased by” the Tips Act lawsuit, and that he said his group would “absorb the lawsuit as part of the sale of the club.”⁶

Following these meetings, 25 Tiot Holdings, LLC (25 Tiot) was formed, and it acquired the note. Robinson subsequently signed a deed in lieu of foreclosure for 25 Tiot Street in Sharon (the property), which conveyed the property to 25 Tiot and cancelled Spring Valley's debt of $6,184,580. The trial judge credited Robinson's testimony that Robinson would not have signed the deed absent the promise from Intoccia, on behalf of his financial backers, that the defendants would assume liability for the Tips Act lawsuit. Other than the quitclaim deed conveying the property, Spring Valley had no written contract with 25 Tiot Holdings or The Cape Club. The jury found that the defendants are successors in interest to Spring Valley. After the deed in lieu of foreclosure was executed, Intoccia took over the day-to-day operations of Spring Valley, the golf course, and the function facilities. The Cape Club was formed in December 2016 and it then began operating the golf course and function facility and transferred the money in the Spring Valley bank account to its own account.

Following the sale of Spring Valley to 25 Tiot in 2016, the defendants failed to pay the legal fees incurred by the plaintiffs in the Tips Act lawsuit, which led the plaintiffs’ law firm to resign in the spring of 2017.⁷ At some point in 2017, the defendants retained an attorney to represent Spring Valley, but not the plaintiffs, in the Tips Act lawsuit. Robinson reengaged the law firm that had been representing him to continue to represent him and Antokal.

After several years of litigation, including a jury trial and multiple appeals, the judge in the Tips Act lawsuit entered a final judgment awarding Norrell and the class of Spring Valley waitstaff $65,465.75 in damages and $176,307 in attorney's fees and costs.

The plaintiffs brought the present action to recover the cost of their defense in the Tips Act lawsuit, along with damages and attorney's fees pursuant to c. 93A. Following a jury trial, the defendants were found liable for breach of Spring Valley's by-laws ⁸ and for negligent misrepresentation. The trial judge remitted the jury's damages award of $1,020,730.53 to $811,365.17, which she found was the maximum amount supported by the evidence.

The judge reserved the c. 93A claim for herself. She found that the interactions between the plaintiffs and defendants did not constitute an intra-enterprise dispute. She concluded that the defendants’ negligent misrepresentation was sufficient to support a finding that the defendants violated G. L. c. 93A, § 11, and that the violation was willful and knowing. She also found that the “[d]efendants also clearly understood that when the transfer occurred, they would be subject to liability for” the Tips Act case. The judge awarded the plaintiffs treble damages and attorney's fees. This appeal followed.

Discussion. 1. Applicability of G. L. c. 93A. The defendants contend that Intoccia's conduct did not fall within the ambit of c. 93A because it arose out of an intra-enterprise dispute. We are not persuaded.

The Supreme Judicial Court has “limited the reach of G. L. c. 93A, § 11, to exclude intra-enterprise disputes because they are more similar to purely private disputes and are not ‘commercial transaction[s] ․ in the sense required by c. 93A.’ ” Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 23 n.33 (1997), quoting Szalla v. Locke, 421 Mass. 448, 452 (1995). Examples of intra-enterprise disputes include “disputes stemming from an employment relationship, disputes between individual members of a partnership arising from partnership business, and transactions and disputes between parties to a joint venture and between fellow shareholders.” Linkage Corp., supra.

Here, there was no intra-enterprise dispute because the conduct complained of -- the defendants’ negligent misrepresentation -- occurred prior to the sale of the property and the transfer of Spring Valley's operations to the defendants. At that time, the parties were separate legal entities engaged in arm's-length business negotiations in the context of a common commercial transaction -- the sale of a business. See Lynn v. Nashawaty, 12 Mass. App. Ct. 310, 313-314 (1981) (false representation in context of sale of stationery business constituted G. L. c. 93A, § 11, violation). Contrast Szalla, 421 Mass. at 452 (“This is also not a situation where an individual was selling a service, a business, or part of a business”). The fact that defendants became successors in interest to Spring Valley does not nullify the arm's length transaction that occurred before the defendants succeeded Spring Valley.

2. Chapter 93A violation. General Laws c. 93A, § 2 (a), prohibits both “[u]nfair methods of competition” and “unfair or deceptive acts or practices” occurring “in the conduct of any trade or commerce.” General Laws c. 93A, § 11, “applies these prohibitions to dealings between those ‘engaged in trade or commerce.’ ” H1 Lincoln, Inc. v. South Washington St., LLC, 489 Mass. 1, 14 (2022), quoting c. 93A, § 11. Whether unfair or deceptive conduct violates c. 93A is a legal question, which we review de novo. See Casavant v. Norwegian Cruise Line, Ltd., 460 Mass. 500, 503 (2011).

Here, the defendants’ negligent misrepresentation cannot amount to a c. 93A violation solely because they knew that they were obligated to pay the plaintiffs but ultimately did not. See H1 Lincoln, 489 Mass. at 17 n.12 (“Even an intentional or knowing breach of contract, standing alone, is insufficient for a c. 93A, § 11, violation”); Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 226 (1992) (“additional factor” beyond even “cheerful[ ]” breach of contract is required for c. 93A violation).

However, “a negligent misrepresentation may be so extreme or egregious as to constitute a violation of G. L. c. 93A, § 11.” Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 62 (2004). See Brewster Wallcovering Co. v. Blue Mt. Wallcoverings, Inc., 68 Mass. App. Ct. 582, 605 n.55 (2007) (“Even negligent misrepresentation can be a proper basis for the imposition of c. 93A liability”). For example, in Glickman v. Brown, 21 Mass. App. Ct. 229, 235 (1985), we held that “a negligent misrepresentation of fact the truth of which is reasonably capable of ascertainment is an unfair and deceptive act or practice within the meaning of c. 93A, § 2 (a).” There, the defendants’ agents represented to prospective condominium purchasers that the defendants’ common heating system was fully functional, which was inaccurate. Id. Because the defendants would have easily discovered the defects in the heating system had they visually checked it, we concluded that their negligent misrepresentation violated c. 93A. Id. See Golber v. BayBank Valley Trust Co., 46 Mass. App. Ct. 256, 259-260 (1999) (finding of c. 93A violation for negligent misrepresentation affirmed where defendant's agent assured plaintiff that particular account officer would supervise bank account, but “reasonable investigation by the [agent] would have shown” that defendant had already decided to transfer bank account to different account officer).

By contrast, here, the judge found only that the defendants agreed to indemnify the plaintiffs, and that defendants’ later refusal to do so was “inexplicable.” The judge did not find that Intoccia knew any of his statements were false when made.⁹ Without a finding that the defendants never intended to indemnify the plaintiffs at the time Intoccia made the negligent misrepresentation, we cannot determine whether the defendants’ conduct was “so extreme or egregious as to constitute a violation of G. L. c. 93A, § 11.” Marram, 442 Mass. at 62. Cf. Cesso v. Todd, 92 Mass. App. Ct. 131, 139 (2017) (statements of matters promissory in nature generally not actionable, but statements of present intention as to future conduct may be actionable as fraud if they misrepresent speaker's actual intention).

Therefore, we vacate the judgment dated September 4, 2024, to the extent judgment entered on the plaintiffs’ c. 93A claim, and we remand for further findings on this issue.¹⁰ ,¹¹ The judgment is otherwise affirmed.

So ordered.

FOOTNOTES

4.   The defendants also made an argument concerning remittitur of the jury's damages award of attorney's fees, but the defendants conceded at oral argument that this argument was waived because it was not raised in their motion for a directed verdict.

5.   Antokal served as president from 2005 to 2011, and Robinson served as president from 2011 to 2017.

6.   Intoccia testified at trial that Robinson never told him about the Tips Act lawsuit prior to the sale, and that Intoccia never promised to take care of it. The trial judge did not credit this testimony, nor Intoccia's testimony generally.

7.   Prior to the sale, Spring Valley had paid all of the fees associated with the Tips Act lawsuit, including the fees for the plaintiffs’ defense.

8.   On the special verdict form, the jury found that the defendants were successors in interest to the former club and thus required to indemnify the plaintiffs under the club's bylaws.

9.   Nor did the jury make such a finding on the special verdict form. Contrast Brewster Wallcovering, 68 Mass. App. Ct. at 605-606 (finding of c. 93A violation affirmed where jury found defendants liable for intentional misrepresentation and breach of the covenant of good faith and fair dealing).

10.   We express no opinion on the judge's finding that the defendants’ conduct was willful and knowing because we cannot discern the rationale for that finding from the judge's memorandum and order. To multiply damages under c. 93A, the violation must be willful or knowing. It is not sufficient that a breach of contract is willful or knowing. If the judge determines on remand that the defendants’ negligent misrepresentation was so extreme or egregious as to amount to a c. 93A violation, separate findings on whether the violation was willful or knowing could be helpful.

11.   The plaintiffs’ request for attorney's fees incurred in connection with this appeal is denied at this time. If the judge, on remand, again finds a violation of c. 93A and awards attorney's fees, the plaintiffs may, at that time, seek fees related to this appeal in this court. See Brown v. F.L. Roberts & Co., Inc., 452 Mass. 674, 688-689 (2008); T & D Video, Inc. v. City of Revere, 450 Mass. 107, 114-116 (2007).