Opinion
18-P-1647
10-31-2019
BOSS SERVICES, INC., & another v. Kathleen GINN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kathleen Ginn, appeals from (1) an order denying her motion for judgment notwithstanding the verdict, and (2) that portion of the amended judgment entered June 1, 2018, awarding her $1,000 in attorney's fees in connection with her counterclaims under G. L. c. 142A and G. L. c. 93A. We affirm.
After a four-day trial in the Superior Court, a jury found in favor of the plaintiff, Boss Services, Inc., a contractor who performed work on the defendant's home, on its quantum meruit claim in the amount of $21,422.72. The jury found against the defendant on her counterclaims for intentional infliction of emotional distress and negligence. In response to advisory special questions jointly addressed to the counterclaims for violation of G. L. c. 142A, § 2 (for failure to provide a written contract), and G. L. c. 93A, the jury found that the plaintiff did not commit any unfair or deceptive act or practice, but nonetheless advised that a nominal award of twenty-five dollars would be in order. Subsequently, the judge ordered the entry of judgment in the defendant's favor on her c. 93A counterclaim, and awarded twenty-five dollars in nominal damages. The defendant suggests that liability was based on a determination that the plaintiff violated G. L. c. 142A by not providing a written contract detailing the scope and terms of the work to be done on the defendant's house. The judge, however, made no findings, and the defendant has not provided a transcript, so we cannot be certain.
It is possible that the jury reached the damages question because of an ambiguity in the wording of the special verdict form, which directed that they "go to" the damages question even if they concluded that there was no deceptive or unfair act.
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In any event, the judge solicited an application for attorney's fees, in response to which the defendant's counsel submitted an affidavit seeking $46,894 in fees. This was the amount expended on the case as a whole, and was not broken down in any way that would permit the judge to determine how much was specifically spent in connection with the G. L. c. 93A claim, as opposed to the defense of the main action or the defendant's unsuccessful counterclaims. The judge, without conducting a hearing, making findings, or explicitly applying the Linthicum factors, ruled that "[a]s the [defendant] recovered only token, statutory damages, [the] court awards approximately limited attorneys' fees of $1,000." See Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979) (in awarding fees, judge "should consider the nature of the case and the issues presented, 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").
On appeal, the defendant argues that the judge abused his discretion in awarding only $1,000 in fees, that the judge erred in denying the defendant's motion for judgment notwithstanding the verdict because the evidence showed that the plaintiff acted with unclean hands, and that the plaintiff's unlawful conduct (i.e., the failure to provide a written contract as required by G. L. c. 142A, § 2 ) was the cause of the underlying suit, and should not be rewarded. None of these arguments can be assessed, nor can they succeed, because the defendant has not provided us with a transcript of the trial. The defendant's failure to order a transcript, and to include it in the record on appeal is fatal to her claims. See Mass. R. A. P. 8 (b) (1) (A), as appearing in 481 Mass. 1611 (2019). See, e.g., Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995) (court could not review allowance of directed verdict motion without relevant portions of trial transcript); Foley v. Foley, 27 Mass. App. Ct. 221, 225 (1989) ("In the absence of a transcript, we must assume the [attorney's fee] award is adequately supported by the evidence, particularly in view of the trial judge's firsthand knowledge of the services performed").
Order denying motion for judgment notwithstanding the verdict affirmed.
Amended judgment entered June 1, 2018, affirmed.