Opinion
10-P-940
12-09-2011
JACOB J. REZNIKOW v. NRT NEW ENGLAND, INC.
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 plaintiff, Jacob J. Reznikow, owned two properties in Billerica which he sold for $225,000 and $55,000, respectively, with the assistance of the defendant real estate brokerage, NRT New England, Inc. (NRT). After learning that NRT had failed to disclose several offers from more than one potential buyer, Reznikow brought this action for breach of contract, breach of fiduciary duty of an agent, fraud, misrepresentation, negligence, and violation of G. L. c. 93A.
The case was tried before a jury in the Superior Court, who concluded in a special verdict that NRT had been negligent but that Reznikow had not suffered any injury. The c. 93A claim was reserved to the judge, who, concurring with the jury's verdict, concluded that, although NRT 'intentionally withheld offers [,] . . . there was no credible proof that the plaintiff was injured by the acts of [NRT].' Accordingly, the judge determined that Reznikow was 'not entitled to even nominal damages or attorney's fees,' and entered judgment for NRT on all of Reznikow's claims. Reznikow's appeal claims error only with respect to the c. 93A claim.
We shall assume, without deciding, that Reznikow's claim was brought, and properly so, under § 9 rather than § 11 of that statute.
'We will not disturb a judge's findings of fact in a c. 93A claim unless those findings are clearly erroneous.' Gore v. Arbella Mut. Ins. Co., 77 Mass. App. Ct. 518, 523 (2010), quoting from Clegg v. Butler, 424 Mass. 413, 420 (1997). Moreover, '[a]s the direct observer of the witnesses, the judge is the arbiter of credibility.' Castricone v. Mical, 74 Mass. App. Ct. 591, 601 n.13 (2009).
On appeal, Reznikow argues that because the judge found a failure by NRT to convey the offers, its conduct necessarily resulted in a loss to him of the difference between the actual sale price and his expert's assessed price that Reznikow claims he would have received had he known about the additional offers. This argument is without merit. Based on her assessment of witness credibility, the judge was entitled to, and did, reject Reznikow's evidence that the withholding of the offers resulted in a sale on terms less favorable to Reznikow than he otherwise would have received. 'A consumer is not . . . entitled to redress under G. L. c. 93A, where no loss has occurred.' Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 802 (2006).
Hershenow also forecloses Reznikow's alternative argument that nominal damages were warranted here. See 445 Mass. at 799 n.18.
Moreover, to the extent that Reznikow relies upon the Supreme Judicial Court's holding in Leardi v. Brown, 394 Mass. 151 (1985), for the proposition that recovery under c. 93A is permissible even where a plaintiff has demonstrated no actual injury, that reliance is misplaced. As the judge noted, this case falls squarely within the doctrine set forth in Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309, 323 (2004), in which we concluded that where, as is the case here, the judge has made 'a finding that the plaintiff had suffered no injury attributable to the defendant . . . the plaintiff has not made out a case under G. L. c. 93A, § 9, and the defendant is entitled to judgment.' Accord Hershenow, supra at 799-801.
Judgment affirmed.
By the Court (Rapoza, C.J., Smith & Vuono, JJ.),