Opinion
No. 15–P–234.
06-30-2016
MARK BOMBARA INTERIOR DESIGN v. Richard BOWLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Mark Bombara Interior Design (Bombara) appeals from that portion of an amended judgment which entered in favor of Richard Bowler on count four of his counterclaim after a remand to the Superior Court and from the denial of his postjudgment motion to strike prejudgment interest. We affirm.
We do not address the denial of Bombara's motion to dismiss Bowler's counterclaims, because he makes no argument regarding this order in his brief. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Background. This case is an appeal from an amended judgment entered after a remand to the Superior Court that was ordered by the Supreme Judicial Court in Mark Bombara Interior Design v. Bowler, 446 Mass. 413 (2006).
The underlying facts are as follows. In the fall of 1997, Bowler decided to renovate a two-bedroom condominium he owned in the Back Bay neighborhood of Boston. He contacted Bombara, who is a designer, and the two executed a “letter of agreement” (agreement) regarding the renovations. The agreement set forth the rate at which Bombara would be compensated, but it did not include a total cost for the project.
Relations between the parties deteriorated to the point that Bombara left the project and sued Bowler. Bowler answered and asserted a counterclaim against Bombara. In 2002, following a jury-waived trial, a judge in the Superior Court ruled that Bowler had breached the agreement by refusing to pay an interim invoice. He awarded damages to Bombara in the sum of $22,965.38, plus costs and interest. The judge found “that there was no agreement regarding the total price for the renovations,” and he discredited Bowler's testimony that the parties had agreed on a cost of $75,000. The judge held that Bombara was not subject to G.L. c. 142A, § 2, because he was not a contractor, and he rejected Bowler's counterclaim.
On Bowler's appeal from that decision, the Supreme Judicial Court concluded that Bombara was a contractor within the meaning of G.L. c. 142A, § 1. Mark Bombara Interior Design v. Bowler, 446 Mass. at 421. It affirmed the trial judge's ruling that Bowler had breached the agreement, but reversed the judgment on Bowler's counterclaim and remanded the matter to the Superior Court for consideration of counts three, four, and five of the counterclaim. Ibid.
On remand, Bombara moved to dismiss Bowler's counterclaim on the basis that Bowler could not establish that he was damaged by any failure of Bombara to comply with G.L. c. 142A, § 2. The motion was denied, and the judge ruled, based upon his earlier findings of fact “supplemented as necessary by other evidence presented at trial,” that the parties' agreement did not comply with the requirements of G.L. c. 142A, § 2. He found the contract price to be $75,000 for the purpose of calculating Bowler's damages, based upon Bombara's failure to establish an actual contract price and his acknowledgment “that Bowler referenced a $75,000 figure at various times,” and he deducted that amount from the “actual contract cost” that he found to be $113,876. The judge awarded Bowler $38,876 for Bombara's violation of G.L. c. 142A, which he declined to multiply under G.L. c. 93A, and awarded attorney's fees. An amended judgment entered in favor of Bombara in the amount of $22,965.38 plus costs and interest in the amount of $42,945.26, and in favor of Bowler in the amount of $38,876, plus interest in the sum of $71,831.96. Bowler also was awarded costs and attorney's fees of $11,602.50. Bombara's postjudgment motion to strike prejudgment interest on the damages awarded to Bowler was denied, and Bombara timely appealed.
Discussion. Bombara argues that the trial judge erred in ruling in favor of Bowler on count four of his counterclaim, alleging that Bombara's violation of G.L. c. 142A constituted a violation of G.L. 93A because Bowler suffered no damages as a result of the nonconforming contract. He also argues that the judge erred (1) in using $75,000 as a basis for calculating Bowler's damages under the counterclaim, and (2) in denying his motion to strike prejudgment interest on the award to Bowler. Bombara's contentions are unavailing in light of well-settled law.
There was no recovery under the other counts of the counterclaim, and they are not at issue.
We do not address Bombara's appeal from that portion of the amended judgment on Count four of Bowler's counterclaim which awarded Bowler attorney's fees pursuant to G.L. c. 93A, because he makes no substantial argument on the issue in his brief. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
1. Bowler's counterclaim. With respect to count four of Bowler's counterclaim, the judge found that there was no agreement regarding the total price for the renovations nor for a definite date of completion, and that the parties' agreement “failed to delineate who bore the obligation to obtain necessary permits.” Bombara does not challenge these findings, which are supported by the evidence and which we do not disturb. Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997). In light of the Supreme Judicial Court's conclusion in Mark Bombara Interior Design v. Bowler, supra, that Bombara is a contractor, the judge's findings support his conclusion that Bombara violated G.L. c. 142A, § 2. As a matter of law, that violation constitutes an unfair or deceptive practice under G.L. c. 93A. See G.L. c. 142A, § 17(17).
While Bombara argues that there were no damages resulting from his unwitting violation of G.L. c. 142A, § 2, the judge found that the failure to include an over-all cost for the project resulted in Bowler approving “extravagant purchases while maintaining an expectation that the project was on budget.” He found that an “obvious purpose” of requiring a contract price is to ensure that “the homeowner's expectations are aligned with the contractor's obligations,” and that Bombara's failure to comply with G.L. c. 142A, § 2, had “devastating consequences to the relationship between the parties.” Breakdown of the relationship required Bowler to hire another construction company to complete the renovations for a total cost of $113,876, which was $38,876 more than Bowler had hoped to spend. We see no error in the judge's determination regarding damages resulting from the violation of the statute.
Nor did the judge err in finding that $75,000 was a reasonable basis for calculating damages on Bowler's counterclaim. At trial, Bombara remembered that Bowler “had hoped for $75,000,” and Bowler's ex-girl friend testified that she heard Bowler express that he was willing to spend $75,000. The judge reasonably could rely on this testimony to set the level of spending which Bowler expected, as reflected in the judge's finding (referenced above) that the failure to include an over-all cost for the project resulted in Bowler approving “extravagant purchases while maintaining an expectation that the project was on budget.” Once the Supreme Judicial Court had determined that Bombara was a contractor subject to G.L. c. 142A, § 2, the judge was entitled to use Bowler's expectations as to contract price in the absence of a fixed contract price as required under that statute. The judge already had determined that Bowler was “entitled to redress under” G.L. c. 93A, for Bombara's violation of G.L. c. 142A, § 2, and Bombara has not convinced us that the judge's use of the $75,000 figure is “clearly erroneous.” Demoulas v. Demoulas Super Mkts., Inc., supra.
2. Motion to strike prejudgment interest. We decline to vacate the judge's denial of Bombara's motion pursuant to Mass.R.Civ .P. 60(b)(6), 365 Mass. 828 (1974), to strike prejudgment interest because Bowler suffered no loss of money and instead received a windfall due to the duration of the case. Pursuant to G.L. c. 231, § 6C, the clerk “shall” add interest to any judgment for pecuniary damages in a contract action, “at the rate of twelve per cent per annum from the date of the breach or demand,” if established. Bowler filed his counterclaim on December 11, 1998, and the judge assessed prejudgment interest from that date. This he “was not only authorized but obliged to” do. Acushnet Fed. Credit Union v.. Roderick, 26 Mass.App.Ct. 604, 609 (1988).
Even if we agreed with Bombara that we may and should consider whether extraordinary circumstances exist in his case which justify relief from a statute that clearly expresses the Legislature's intent that an aggrieved party receive prejudgment “from the date of commencement of the action,” G.L. c. 231, § 6C, we would find no abuse of discretion by the judge. See Struett v. Arlington Trust Co., 23 Mass.App.Ct. 152, 155 (1986) (“we review the judge's action [on a rule 60(b)(6) ] motion only to determine whether there has been an abuse of discretion”). The judge presided over this case for over a decade, and he “could properly find that denial of the motion was in the interests of justice.” Bird v. Ross, 393 Mass. 789, 792 (1985). See id. at 791 (a party seeking to prevail on a motion under rule 60 [b][6] “must show that such relief would be just”).
Amended judgment affirmed.
Order denying postjudgment motion affirmed.