Opinion
12-P-581
12-06-2012
MAUREEN HANLEY & others v. EDWARD J. TUTUNJIAN & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs challenge an order which granted summary judgment to the defendants and an order denying the plaintiffs' motion for reconsideration. On appeal, the plaintiffs claim there was a material dispute about whether the defendants' failure to pay the judgment constituted trade or commerce, as required for purposes of G. L. c. 93A. We affirm.
The plaintiffs have failed to meet their burden of establishing that the conduct in question -- the defendants' failure to pay a judgment awarded to the plaintiffs -- arose within the context of trade or commerce. See Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 563-564 (2008) (stating burden required for applicability of c. 93A). The claims asserted by the plaintiffs regarding nonpayment establish nothing more than questions regarding the conduct of the litigation between the parties and not prior actionable conduct in a business context. See Szalla v. Locke, 421 Mass. 448, 451-452 (1995) (requiring claims to arise in business context); Morrison v. Toys 'R' Us, Inc., 441 Mass. 451, 457 (2004) (restricting scope of c. 93A). Actions taken by one party to a litigation during the course of that litigation cannot create an independent remedy under c. 93A for that conduct, even if the conduct might be considered unfair or deceptive. Morrison, supra at 456-457. See Framingham Auto Sales, Inc. v. Workers' Credit Union, 41 Mass. App. Ct. 416, 418 (1996) (mere breach of legal obligation not actionable under c. 93A). No material dispute exists regarding whether the parties were engaged in trade or commerce at the time the plaintiffs sought payment of the judgment awarded at trial. The efforts to collect the judgment must be read independently of the initial transaction between the parties -- the taxicab trip undertaken by the plaintiffs -- because the plaintiffs assert the refusal to pay the judgment constituted the actionable conduct under c. 93A. At the time the defendants refused to pay the judgment during the appeal, any commercial relationship between the parties had ceased. The plaintiffs' efforts to secure payment of the judgment were not commercial in nature, nor were the parties engaged in trade or commerce when the defendants refused to pay. See Milliken & Co., supra at 564. Nonpayment of the judgment does not constitute trade or commerce as a legal matter, as defined in G. L. c. 93A, § 1(b), but instead more closely mirrors the 'mere filing of litigation,' which is not recognized as 'trade or commerce' for purposes of c. 93A. First Enterprises, Ltd. v. Cooper, 425 Mass. 344, 347 (1997), citing Arthur D. Little, Inc. v. East Cambridge Sav. Bank, 35 Mass. App. Ct. 734, 743 (1994). As such, the litigation exemption outlined in Morrison, supra at 458, does indeed apply to this case. As the judge noted, the plaintiffs' efforts to collect this judgment took place during the course of litigation between the parties and were not 'perpetrated in a business context' as c. 93A requires. Arthur D. Little, Inc., supra, quoting from Lantner v. Carson, 374 Mass. 606, 611 (1978). This close relationship between the defendants' refusal to pay the judgment and the litigation finds no remedy under c. 93A. Summary judgment properly entered for the defendants.
The plaintiffs claim that where parties to litigation had a brief commercial relationship prior to the commencement of litigation, any tactics employed by the party during the litigation may constitute unfair or deceptive acts under the statute. The cases cited for this proposition, however, do not support this claim. The unfair or deceptive conduct alleged must itself arise from trade or commerce itself, and not tangentially from the litigation concerning that conduct. See First Enterprises, Ltd. v. Cooper, 425 Mass. 344, 347 (1997).
The defendants' request for an award of sanctions is denied.
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Judgment affirmed.
By the Court (Meade, Sikora & Hanlon, JJ.),