ANDREA POGGI v. ROBERT ANDREWS JR (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This dispute arose after a real estate transaction failed to close following a failed septic system inspection prior to closing. The seller, defendant Robert M. Andrews, Jr., and the buyer, plaintiff Andrea Poggi, disagreed over who was obligated to fix the septic system under the purchase and sale agreement (agreement); the defendant ultimately refused to sell. Poggi sued for breach of contract and unfair and deceptive trade practices under G. L. c. 93A, § 2, seeking damages and specific performance. Poggi and plaintiff Laina Olsen (collectively, plaintiffs) also filed suit against the defendant in his capacity as their landlord for failing to maintain a septic system in compliance with health codes (the rent case). The cases were consolidated and tried before a jury.

The jury found the defendant had committed a breach of the agreement and found for the plaintiffs on all claims in the rent case. The plaintiffs were awarded damages, and a judge of the Superior Court subsequently awarded Poggi specific performance pursuant to the agreement and, having found that the defendant violated c. 93A, attorney's fees. The plaintiffs were also awarded attorney's fees in the rent case. The defendant moved for a directed verdict, for judgment notwithstanding the verdict, and for a new trial; the judge denied the motions. We agree with the judge's well-reasoned conclusions and affirm.

Discussion. The denial of a motion for a directed verdict or judgment notwithstanding the verdict presents a question of law reviewed under the same standard used by the trial judge. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007). We view the evidence in the light most favorable to the nonmoving party, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence. See Tosti v. Ayik, 394 Mass. 482, 494 (1985), S.C., 400 Mass. 224 (1987), cert. denied sub nom. United Auto Workers, Local 422 v. Tosti, 484 U.S. 964 (1987), and cases cited. We uphold the verdict if it may be determined that anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the nonmovant. See Sullivan v. Five Acres Realty Trust, 487 Mass. 64, 68 (2021), and cases cited.

1. The contract dispute. We first consider the defendant's assertion that the Superior Court judge erred in interpreting the agreement to extend the closing date by thirty days when the septic system failed inspection. This issue is waived because the defendant's trial counsel, who was not appellate counsel, failed to raise this issue both at trial, see Boss v. Leverett, 484 Mass. 553, 563 (2020), and in his directed verdict motion. See Shafir v. Steele, 431 Mass. 365, 371 (2000). But, were we to address the issue, we would reach the same conclusion as the Superior Court judge.

We review a judge's interpretation of a contract de novo. See Balles v. Babcock Power Inc., 476 Mass. 565, 571 (2017). The plain terms of the agreement allowed for a thirty-day extension of the time to perform when “the premises do not conform.” The premises did not conform after the septic system failed inspection.

The defendant also asserts that the failed septic system inspection created a condition precedent that Poggi did not satisfy. In a somewhat tortured construction of the agreement, the defendant maintains that the failed inspection gave Poggi an option to terminate the agreement within two days or, in the alternative, within the same two-day period to obtain a written agreement from the defendant to repair or replace the septic system. The defendant asserts that getting such a written agreement was a condition precedent to his repair obligations. See Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 45 (1991) (“If the condition [precedent] is not fulfilled, the contract, or the obligations attached to the condition, may not be enforced”). But that argument, too, is waived because the defendant failed to raise the issue at trial. See Boss, 484 Mass. at 563. In any case, if we were to review the issue de novo, see Balles, 476 Mass. at 571, we would again conclude that the defendant is wrong as a matter of the plain terms of the agreement. Paragraph 30 of the agreement, on which the defendant relies, applied only if Poggi had exercised his option to terminate the agreement after the septic system failed inspection. Poggi did not terminate the agreement, rendering this second provision irrelevant. See Massachusetts Mun. Wholesale Elec. Co., supra.

The defendant also maintains that his performance was excused because Poggi repudiated the agreement. We disagree. According to the defendant, two proposals from Poggi as to how the parties paid for the septic system repairs indicated that Poggi would refuse to close unless the defendant paid the entire cost of the septic system repair. But, as the defendant conceded three times at trial, Poggi's proposals were just that -- proposals. That is not repudiation. See Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010) (repudiation requires “a definite and unequivocal manifestation of intention [not to render performance]” [citation omitted]). Viewing the evidence in the light most favorable to Poggi, see Tosti, 394 Mass. at 494, the defendant was not excused from performing because Poggi did not repudiate. See Coviello, supra.

We are also unpersuaded by the defendant's arguments about the remedies imposed. First, the defendant's assertion that Poggi was not entitled to specific performance is unavailing. The jury found that the defendant committed a breach of a contract for the sale of real property. That is sufficient to support the award of specific performance. See Greenfield Country Estates Tenants Ass'n v. Deep, 423 Mass. 81, 88 (1996) (“It is well-settled law in this Commonwealth that real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land”). We do not address the defendant's assertions with respect to the monetary award for breach of contract, which the defendant concedes were not raised below. See Boss, 484 Mass. at 563.

2. General Laws c. 93A claim. The defendant raises two challenges to the imposition of liability under c. 93A. The defendant's assertion that the demand letter was insufficient is waived because the issue was not raised below. See Boss, 484 Mass. at 563. And the defendant's novel claim that he was not engaged in “trade or commerce,” G. L. c. 93A, § 2, was directly contradicted by his trial counsel's stipulation to that fact. Therefore, the claims are unavailing.

3. Attorney's fees for the rent case. “What constitutes a reasonable fee is a question that is committed to the sound discretion of the [trial] judge.” Berman v. Linnane, 434 Mass. 301, 302-303 (2001). “[T]he amount of a reasonable attorney's fee is largely discretionary.” Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 429-430 (2005). In addition to the nature of the case and its issues, judges should consider “the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases” (citation omitted). Berman, supra at 303. “No one factor is determinative, and a factor-by-factor analysis, although helpful, is not required.” Id.

The defendant maintains that the award of attorney's fees to the plaintiffs for the rent case was excessive relative to the complexity of the legal issues in contention and disproportionate to the results obtained. We disagree. The trial judge carefully considered the appropriate factors, including the time the plaintiffs’ counsel spent on separate litigation tasks relative to the results obtained at trial. “In light of [the trial judge's] firsthand knowledge of the details and complexity of the case, we see no reason to question that judgment.” Twin Fires Inv., LLC, 445 Mass. at 431.²

Judgments affirmed.

FOOTNOTES

2.   The plaintiffs’ request for appellate attorney's fees is allowed. The parties shall proceed in accordance with Mass. R. A. P. 25 (b), as appearing in 498 Mass. 1601 (2026).