ALAN FILZER & Others v. PITSICK LLC & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-720

ALAN FILZER & others1

vs.

PITSICK LLC & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs are abutters or neighbors (abutters) of

three separate nonconforming lots in the city of Newton that

were being developed by Pitsick, LLC (Pitsick). The abutters

filed a Superior Court complaint alleging breach of contract by

Pitsick of an agreement to resolve a Land Court action involving

the lots. They later added a claim that Pitsick's conduct, as

well as that of its principal Stephen T. Pitrowski, amounted to

a violation of G. L. c. 93A. The parties' dispute arose because

1Monica Crowley and Paul Crowley, Diane Dion and Arthur
Dion, Judith Mannix and John Koot, Gerald Burg, and Patience
Orobello and Joshua Shriber. Gerald Burg, Patience Orobello,
and Joshua Shriber did not participate in the appeal.

2Stephen T. Pitrowski and MountainOne Bank. MountainOne
Bank did not participate in the appeal.
they had not disclosed the agreement to the Land Court judge,

who subsequently issued a decision on pending summary judgment

motions in the Land Court action. The parties disagreed about

how that Land Court judge's decision affected the agreement, if

at all. In the Superior Court action relating to the agreement,

the parties cross-moved for summary judgment, and a judge

allowed the abutters' motion for summary judgment in part,

determining that Pitsick had committed a breach of the agreement

and its duty of good faith and fair dealing. After a bench

trial on the G. L. c. 93A claim, the same judge found that

Pitsick and Pitrowski (defendants) had engaged in unfair or

deceptive conduct. Pitsick and Pitrowski appeal, arguing in

essence that performance under the agreement was rendered

impossible, or at least was frustrated, by the intervening Land

Court judgment. We affirm.

Background. 1. Summary judgment record. "We summarize

the undisputed facts drawn from the summary judgment record; to

the extent the record includes disputed evidence, we consider

that evidence in the light most favorable to . . ." the

nonmoving party. Cesso v. Todd, 92 Mass. App. Ct. 131, 132

(2017). We reserve discussion of other facts as they become

pertinent to our analysis.

2
The plaintiffs are abutters or neighbors of a development

on three separate nonconforming lots -- lots 109, 110, and 1113 -

- on Goddard Street in Newton. Each lot contains 5,000 square

feet and fifty feet of frontage. Lot 110 is situated between

lots 109 and 111, and it has been improved with a single-family

dwelling since around 1924.

In January 2011, the lots were conveyed to Pitrowski and

his business partner, the principals of Pitsick, a Massachusetts

limited liability company that develops and sells residential

real estate. Soon after, Pitsick obtained building permits to

construct single-family homes on lots 109 and 111.

In January 2012, Pitsick began construction and excavation

on lots 109 and 111. At that time, the abutters requested that

the building commissioner revoke Pitsick's building permits for

lots 109 and 111.4 When the commissioner did not respond to

their request, the abutters then filed a complaint in the Land

Court for, and later obtained, an order of mandamus directing

the building commissioner to act relative to the two building

3 Known respectively as 26, 22, and 18 Goddard Street.

4 In May 2012, Pitsick conveyed lot 110 to another LLC, who
then conveyed the lot to Patience Orobello and Joshua Shriber,
who later signed the agreement at issue and joined the Superior
Court case as plaintiffs. They were eventually voluntarily
dismissed as plaintiffs. As noted earlier, Orobello and Shriber
did not participate in this appeal. They also did not
participate in the Land Court case.

3
permits issued for lots 109 and 111. The building commissioner

promptly denied the request to revoke the permits.

In January 2013, the abutters appealed the building

commissioner's denial to the Zoning Board of Appeals (ZBA),

which reversed the building commissioner's denial and revoked

the building permits for lots 109 and 111. Pitsick appealed the

revocation of the permits for lots 109 and 111 to the Land

Court, naming as defendants the abutters and members of the ZBA.

The parties argued cross motions for summary judgment.

While the summary judgment motions were pending, and

without notifying the Land Court judge, the abutters, the owners

of lot 110, Pitsick, Pitsick's principals, and Pitsick's

construction lender, MountainOne Bank, entered into an agreement

on April 6, 2015.5 Through the agreement, the abutters and the

defendants "agreed to compromise their differences without

further litigation." The agreement generally provided that

Pitsick would: (1) pay $80,000 to the abutters; (2) apply, with

the abutters' support,6 for a special permit from the ZBA to

redivide the three lots into two lots (comprising 7,000 and

5 The ZBA, while a party to the Land Court case, was not a
party to the agreement, and MountainOne Bank, while not a party
to the Land Court case, was a party to the agreement.

6 The abutters and their counsel testified in favor of the
issuance of the special permit in person at the public hearing.

4
8,000 square feet), thereby enabling Pitsick to complete the

single-family home partially constructed on lot 109 consistent

with the original building permit for that lot; (3) restore lot

111 to substantially its landscaped condition prior to Pitsick's

excavation and construction work; (4) remove a driveway and

install a new driveway on lot 110 and restrict any construction

of a new single-car garage on lot 110 to certain limits; and

(5) declare and record a declaration of restrictive covenants to

run with the land for thirty years limiting the construction of

any structure on lot 111. It provided that, once those

enumerated conditions were met, Pitsick and the abutters would,

"together with" the ZBA, promptly execute and file a stipulation

of dismissal of their case in the Land Court.

As part of the agreement, the parties jointly contracted

not to notify the Land Court judge of the agreement though they

knew the Land Court judge could rule on the summary judgment

motions at any time. In fact, the agreement stated that "[a]ny

notification" of the agreement to the Land Court prior to the

issuance of the special permit and expiration of all applicable

appeal periods would constitute a "violation" of the agreement.

The agreement also provided a contingency in the event that

the Land Court judge decided the then-pending summary judgment

motions, expressly stating, "This Agreement shall be binding

5
upon the Parties in resolution of all matters at issue in the

Litigation, and shall supersede in force and effect any judgment

or order issued by the Land Court on the Parties' pending motion

and cross-motions for summary judgment in the Litigation . . ."

(emphasis added).

The special permit to resubdivide the three lots into two

lots was approved on April 6, 2015.7 According to the agreement,

the special permit was subject to an appeals period of sixty

days. On May 14, 2015, the Land Court judge entered a decision

and judgment, finding lots 110 and 111 had merged into a single

lot because of common ownership in 1940, and lot 109 to be a

standalone buildable lot with preexisting nonconforming use

7 Under section 3.2(d) of the agreement, the parties agreed
that Pitsick could be released from its obligations if, "within
ten (10) calendar days of issuance of the Special Permit," it
determined and notified the other parties in writing that
"unreasonable conditions" had been imposed on the special
permit. "Unreasonable conditions," per the agreement, included:

"any conditions imposed by the Board of Aldermen or any
other municipal entity to the issuance of, or contained in,
the Special Permit that would increase the cost to the
[defendants] of complying with the terms of this Agreement
by more than $10,000.00, but excluding ordinary conditions
such as preparation of site plans, as-built plans and the
like, or the preparation of a modified easement plan, and
the [defendants'] attorney's fees."

Pitsick did not notify any other party within the prescribed
period of any "unreasonable conditions" imposed by or contained
in the special permit.

6
protection under G. L. c. 40A, § 6.8 The judge also stressed the

principles of equity in concluding that lot 109 was buildable,

though it did not meet the necessary 10,000 square foot minimum.

At the time of the Land Court decision, the structure on lot 109

was "ninety-five per cent complete" and the defendants had

relied on the building commissioner's interpretation of the law

that was later rejected in Mauri v. Zoning Bd. of Appeals of

Newton, 83 Mass. App. Ct. 336, 342 (2013).9 Ultimately, the

judge ordered the building permit on lot 109 to be reinstated.

8 The decision extensively recounted the history of
ownership of the three lots. Lot 109, prior to the defendants'
acquisition of it, had been a thickly wooded lot with no
improvements, and historically it had been treated as a
standalone lot for tax purposes even when periodically owned by
the same owners as lots 110 and 111. Lots 110 and 111, on the
other hand, were taxed jointly until 2012, around the time that
the defendants conveyed lot 110 to an LLC, who then conveyed it
to its current owners. Historically, the previous owners had
used lots 110 and 111 as common property; for example, from
approximately 1928 to 2011, a freestanding garage servicing the
house on lot 110 existed across the lot line between lots 110
and 111. In 1940, while lots 110 and 111 were held in common
ownership, an applicable zoning ordinance imposed a new lot size
requirement of 7,000 square feet minimum; in 1953, a new zoning
ordinance further increased the lot size requirement to a
minimum of 10,000 square feet (which is the current minimum lot
size and the total size of the merged lots 110 and 111).
Accordingly, lots 110 and 111 were "rendered . . . adjacent,
non-conforming, commonly-held lots" in 1940 and "necessarily
merged for zoning purposes." The current owners of lot 110 were
not parties to the Land Court case, and the decision did not
discuss how the merger for zoning purposes would affect the
ownership of lots 110 and 111.

9 The Supreme Judicial Court denied further appellate
review. See 465 Mass. 1104 (2013).

7
Even though the structure on lot 111 constituted a violation of

the zoning ordinance, the judge declined to issue an order

directing the structure on lot 111 be razed. The judge noted it

might be possible for the defendants to apply for a variance to

build on lot 111; but, without such a variance, the ZBA was

right to revoke the building permit for lot 111. The judge

acknowledged that the "path forward for the parties is now

somewhat uncertain."

After the Land Court decision, Pitrowski and Pitsick

expressed concerns as to the decision's legal effect on the

agreement. The defendants' counsel wrote to the city's counsel

seeking a guarantee that the special permit was not supplanted

by the Land Court decision and remained valid, but the

defendants received no written assurance. Meanwhile, the

abutters' counsel asked Pitsick to consent to an extension of

time to file a motion for reconsideration of the Land Court

decision. Pitsick did not agree. Facing a deadline to seek

reconsideration, the abutters' counsel wrote to Pitsick's

counsel, expressing that "conversations" between counsel had

"created doubts" about whether Pitsick intended to perform its

obligations under the agreement and asked for "written

assurance" that Pitsick would "abide by and promptly perform in

full its obligations" set out in the agreement.

8
Pitsick responded by proposing to renegotiate the

agreement, sending a proposal that the parties agree "that the

current Settlement Agreement is null and void," and by

separately declaring that the agreement was null and void. The

abutters rejected this proposal and reaffirmed their belief that

the agreement and special permit remained valid. Over the next

month, both the defendants' and abutters' counsel continued

conversations but, ultimately, the defendants failed to confirm

that they would abide by the agreement.

On June 5, 2015, the abutters filed a motion for

reconsideration of the Land Court decision.10 On June 8, 2015,

Pitsick took the position that it was allowed to void the

agreement because the abutters' Land Court filings would cause

it to expend more than $10,000, which it claimed constituted an

"unreasonable condition" under the agreement.

The abutters then initiated the present Superior Court

action on July 28, 2015, essentially seeking specific

performance of the defendants' obligations under the agreement

and damages for breach of contract and breach of the implied

covenant of good faith and fair dealing.11

10All parties appealed the decision of the Land Court. The
parties dismissed their appeals by agreement in January 2016.

11The abutters also initially brought a breach of contract
claim against MountainOne Bank, Pitsick's lender, for its

9
2. Trial record. After a bench trial, the judge adopted

the stipulation of undisputed facts and legal conclusions from

the summary judgment record and his earlier memorandum and order

on the cross motions for summary judgment. Given the

"tremendous amount of overlap between the plaintiffs' proposed

findings and [the judge's] summary judgment ruling," the judge

clarified that he also adopted much of the plaintiffs' proposed

findings of fact as well as portions of the defendants' admitted

facts. Additionally, the judge found the following.

The defendants' failure to give assurances that they would

honor the agreement was justification for the "placeholder

filings" by the plaintiff in the Land Court case.

The judge also found that Pitrowski "felt that, as a result

of the [Land Court decision], Pitsick was not getting the full

benefit it hoped under the settlement agreement." As a result,

"Pitsick tried to gain a benefit and gain a better deal in light

of [the Land Court] decision and the uncertainty that it

created," which constituted an unfair trade practice. Because

the judge found that Pitrowski believed he was justified in his

position, the judge did not find the defendants' use of the

failure to disburse the payment; but, in May 2016, the abutters
agreed that the dispute was properly between the defendants and
the abutters, and MountainOne Bank in turn would abide by the
litigation's outcome regarding the enforceability of the
agreement.

10
unfair practice to be a knowing or willful violation of G. L.

c. 93A, § 2, and therefore did not multiply damages.

Accordingly, the judge determined that the damages included the

$80,000 owed under the agreement as well as $15,000 in nominal

damages, including interest from the date of filing at the

statutory rate plus reasonable attorney's fees.12

Discussion. 1. Summary judgment. Summary judgment may

enter when the record shows that "there is no genuine issue as

to any material fact and that the moving party is entitled to a

judgment as a matter of law." Mass. R. Civ. P. 56 (c), as

amended, 436 Mass. 1404 (2002). "We review a grant of summary

12The judge initially ordered, on April 22, 2024, that the
plaintiffs were "entitled to specific performance of promises
made in the Settlement Agreement to the extent they are not
mooted or rendered impracticable by subsequent events,"
presumably meaning the dismissal of the owners of lot 110 from
the case and the abutters' stipulation of waiver in relation.
On May 1, 2024, the judge amended the order for entry of final
judgment regarding the specific performance under the agreement
requiring improvements and recorded restrictions to run with the
land, specifically as to certain restrictive covenants on lots
109 and 111. The declaration of restrictive covenants applied
to Pitsick, as the owner of lots 109 and 111, and generally
prohibited any construction or improvement on lot 111 (except
for minor portions of a single-car garage and driveway located
primarily on lot 110 and fencing) as well as any increase in
size to the dwelling structure on lot 109. In this May 1, 2024,
order, the Superior Court judge noted that the lot
reconfiguration envisioned in the agreement was not at issue and
therefore his order did "not reference[] the plan" as it had "no
continued relevance." Indeed, the abutters had expressed
repeatedly that they did not intend to pursue the
reconfiguration of the lots in connection with the dismissal of
the owners of lot 110.

11
judgment de novo," Deutsche Bank Nat'l Trust Co. v. Fitchburg

Capital, LLC, 471 Mass. 248, 252-253 (2015), to determine

"whether, viewing the evidence in the light most favorable to

the nonmoving party, all material facts have been established

and the moving party is entitled to judgment as a matter of law"

(citation omitted), Molina v. State Garden, Inc., 88 Mass. App.

Ct. 173, 177 (2015).

a. Impossibility and frustration of purpose. The

defendants argue that the summary judgment in favor of the

abutters should be vacated because the Land Court decision

rendered performance of the agreement "impossible, or at the

very least impractical."13 We disagree.

"Performance under a contract may be excused in limited

situations where unanticipated supervening events require it."

Le Fort Enters., Inc. v. Lantern 18, LLC, 491 Mass. 144, 150

(2023). The doctrine of impossibility releases a party from

obligations under a contract where performance has become

impracticable, and that impracticability was "caused by the

13The defendants argue that they were "entitled to present
[their] claims of impracticability, impossibility and
frustration of purpose to a jury." "However, where the material
facts are not in dispute and 'no rational view of the evidence'
permits a finding of impracticability or frustration of purpose,
summary judgment is proper." Le Fort Enters., Inc. v. Lantern
18, LLC, 491 Mass. 144, 149 (2023), quoting Petrell v. Shaw, 453
Mass. 377, 381 (2009).

12
occurrence of a contingency the non-occurrence of which was a

basic assumption on which the contract was made" (quotation and

citation omitted). Mishara Constr. Co. v. Transit-Mixed

Concrete Corp., 365 Mass. 122, 127 (1974). "[A] contracting

party cannot be excused where the only 'frustration' consists in

the fact that known risks assumed by him have turned out to his

disadvantage" (citations omitted). Baetjer v. New England

Alcohol Co., 319 Mass. 592, 602 (1946).

The defendants contend that, as a result of the Land Court

judgment, the redivision of the lots as envisioned under the

agreement cannot be legally given effect because the merged lot

110 and 111, as created under the Land Court judgment, "exactly

meets the lot area requirements" under the zoning ordinance.

The reduction in size as to the merged lot, as contemplated by

the agreement and corresponding 2015 special permit, therefore

would create an improper nonconformity. See, e.g., 81 Spooner

Rd., LLC v. Zoning Bd. of Appeals of Brookline, 78 Mass. App.

Ct. 233, 247 (2010), S.C., 461 Mass. 692 (2012) (new building

lot could not be formed "by dividing an existing conforming lot

if as a result the latter is rendered nonconforming by such a

division").

Here, the agreement contained more than just the redivision

of the lots. In fact, the heart of the agreement appears to

13
have been to create a compromise between the parties to end the

litigation, which notably could have resulted in a judgment

affirming the revocation of both building permits for lots 109

and 111. As a result of the compromise, the abutters agreed to

support the defendants in their application for a special permit

to complete the construction project on lot 109. In exchange

for the abutters' support, Pitsick agreed to pay $80,000 to the

abutters, to record certain restrictive covenants pertaining to

the construction of a single-car garage on lot 110, and perform

certain landscaping obligations on lot 111 to return lot 111 to

its natural state. Notably, there is nothing in the record

showing -- and the defendants made no argument that -- the

judgment prevented any construction on lot 109; and, in fact, by

the time of trial, the defendants had finished construction on a

single-family residence and were issued a certificate of use and

occupancy by the city. No rational view of this record permits

a finding of impracticability of the agreement. See Le Fort

Enters., Inc., 491 Mass. at 149.

Nor was the defendants' purpose frustrated, as the

defendants argue in the alternative. See Chase Precast Corp. v.

John J. Paonessa Co., 409 Mass. 371, 375 (1991) (frustration of

purpose exists where "party's principal purpose is substantially

frustrated without his fault by the occurrence of an event the

14
non-occurrence of which was a basic assumption on which the

contract was made" [citation omitted]). The Land Court decision

was not an "unanticipated circumstance" (citation omitted).

Chase Precast Corp., 409 Mass. at 374. In fact, the agreement

expressly considered the possibility of a Land Court judgment.14

The judge concluded, and we agree, that the agreement expressly

accounted for such an outcome. At the very least, as the judge

noted, when the parties entered into the agreement, they "knew

or should have known the Land Court might enter a decision on

the then-pending motions."

b. Bad faith. The defendants next argue that summary

judgment against them was inappropriate as they "should have

been afforded the opportunity for a jury to determine whether

[the defendants] had acted in bad faith or had a legitimate

purpose for their actions." We disagree.

While "[t]he granting of summary judgment in a case where a

party's state of mind or motive constitutes an essential element

of the cause of action is disfavored," Quincy Mut. Fire Ins. Co.

14The agreement stated that it would "supersede" any
judgment from the Land Court. We need not address whether
parties can enter into a settlement agreement that is to
supersede a decision of a judge of one of the trial courts. We
note only that the defendants' signing onto the agreement, which
expressly considered the likelihood and potential effect of such
a judgment, shows that the judgment could not constitute an
unanticipated circumstance.

15
v. Abernathy, 393 Mass. 81, 86 (1984), the "essence of bad

faith, in this context, is not the state of mind but rather the

attendant bad actions," E.A. Miller, Inc. v. South Shore Bank,

405 Mass. 95, 100 (1989).

The communications between the parties consisted almost

entirely of undisputed e-mails, supplemented by the affidavits

of counsel. As the summary judgment record shows, when the

abutters sought confirmation that the defendants were still

intending to abide by the agreement, the defendants not only

refused to give that confirmation but instead attempted to

"renegotiate a different deal that would have declared the

Settlement Agreement null and void." As the judge concluded,

this amounted to an anticipatory repudiation of the agreement.

See K.G.M. Custom Homes, Inc. v. Prosky, 468 Mass. 247, 253-254

(2014). As a result of the defendants' refusals to give

assurances regarding their obligations under the agreement, the

abutters -- predicting the defendants' breach of the agreement

based on their anticipatory repudiation of the agreement --

filed a motion for additional time to file a motion for

reconsideration, a motion for reconsideration, and ultimately a

notice of appeal of the Land Court judgment as "placeholders,

designed to preserve the [abutters'] rights in the event Pitsick

refused to perform under the Settlement Agreement."

16
After the appeals period expired, the defendants indeed

failed to comply with the agreement, claiming that the abutters'

additional Land Court filings after the defendants' refusal to

give assurances constituted an "unreasonable condition" under

the agreement, allowing Pitsick to void the agreement. By the

agreement's own express terms, however, a party was allowed to

void the agreement based on an unreasonable condition only if

such condition was being imposed on the special permit by a

municipal authority and was disclosed to the abutters in writing

within ten days of the issuance of the special permit. "It is a

well-settled rule of contract interpretation that to determine

'whether an agreement is clear and unambiguous, the document

must be viewed in its entirety and its language be given its

plain, ordinary and usual meaning'" (citation omitted). Siebe,

Inc. v. Louis M. Gerson Co., 74 Mass. App. Ct. 544, 549 (2009).

The abutters' conduct therefore could not have reasonably been

considered an unreasonable condition, as explicitly defined

under the agreement, that would have excused Pitsick from its

obligations.

2. Trial issues. On review of a bench trial, "[w]e accept

the judge's findings of fact unless clearly erroneous, but we

'scrutinize without deference the legal standard which the judge

applied to the facts.'" Ndoro v. Torres, 105 Mass. App. Ct.

17
128, 133 (2024), quoting Andover Hous. Auth. v. Shkolnik, 443

Mass. 300, 306 (2005). On review of the claims advanced on

appeal, we discern no errors by the trial judge.

a. Nonpayment by lender and interest award. The

defendants argue that, because the abutters and MountainOne Bank

agreed to suspend any monetary payment set forth in the

agreement until judgment in the underlying dispute, defendants

Pitsick and Pitrowski should not have been held to have

committed a breach of the agreement as "liability associated

with the failure to release the funds should be borne by the

Lender." They further argue that it "would be inequitable to

assess interest from the date of filing to the date of judgment"

given the agreement entered into by the abutters and the lender

where the abutters agreed not to pursue an order for payment.15

We disagree.

15The defendants' counsel wisely conceded at oral argument
that the Chief Justice of the Trial Court has the authority to
make administrative assignments. Additionally, the defendants
concede their arguments pertaining to the admissibility of
documents for intent purposes as moot. Furthermore, defendants'
counsel clarified that their argument that the complaint should
not have been amended was "premised . . . exclusively" on the
invalidity of the agreement with which, as discussed supra, we
disagree. The Superior Court judge did not abuse his discretion
in allowing the abutters to amend their complaint. See Mass. R.
Civ. P. 15 (a), 365 Mass. 761 (1974). The abutters' request for
leave to amend the complaint was not futile where evidence
existed to support their claims.

18
According to the agreement, the defendants were to "tender

to the [abutters] through Lender the agreed aggregate sum of

EIGHTY THOUSAND AND 00/100 DOLLARS ($80,000.00) . . . once the

conditions thereto set forth below have been fully achieved."

The express language of the agreement placed this obligation on

the defendants, not the lender. See Siebe, Inc., 74 Mass. App.

Ct. at 549 (plain meaning of terms of contractual provisions

apply). In any event, the defendants then took actions to

prevent the lender from disbursing the funds. Shortly after the

dispute arose, the lender informed the parties that it "stands

ready, willing, and able" to meet its obligations once the

parties gave written authorization to disburse the funds. The

defendants did not authorize the payment. And, in fact, when

the abutters later sought an order from the trial court for

MountainOne Bank to make the payment, the defendants opposed the

motion.

The defendants next contend that interest should not have

been ordered where the judge found that the abutters were

entitled to specific performance of the agreement, which

happened to include an $80,000 payment. However, the complaint

sought both monetary damages and specific performance, and the

judge referred to the monetary award -- the $80,000 as

considered in the agreement and additional nominal damages of

19
$15,000 -- as damages. As such, the abutters were entitled to

interest on their contract claim from at least the date they

commenced the action, pursuant to G. L. c. 231, § 6C, which

entitles them to interest from the date of the breach or the

date the action was filed. Even in the alternative, however,

interest would be appropriate if the money award had been an

order of specific performance. See Brennan v. Ferreira, 102

Mass. App. Ct. 315, 318-319 (2023).

b. Chapter 93A. The defendants argue that the judge erred

in finding the defendants violated G. L. c. 93A and awarding

damages and attorney's fees for that claim.16 However, the

judge's factual finding that the defendants engaged in unfair or

deceptive trade practices was not clearly erroneous. In fact,

this finding was rooted in the myriad of undisputed documentary

exhibits as well as the testimony by an abutter and the

abutters' then-counsel. See Vita v. Berman, Devalerio & Pease,

LLP, 81 Mass. App. Ct. 748, 755-756 (2012) (applying clearly

16The defendants primarily base their argument on their
earlier contention that performance was excused by the Land
Court judgment, which we have considered at length supra.
Because we concluded that performance was not excused, we need
not discuss the defendants' alternative argument that the "only
other possible basis for a finding that [Pitsick] violated G. L.
c. 93A was that it did not respond to the Abutters['] March 2016
demand letter under G. L. c. 93A."

20
erroneous standard when "reviewing a trial judge's conclusion

that particular conduct was or was not unfair or deceptive").

"[C]onduct in disregard of known contractual arrangements

and intended to secure benefits for the breaching party

constitutes an unfair act or practice for c. 93A purposes"

(quotations and citation omitted). Anthony's Pier Four, Inc. v.

HBC Assocs., 411 Mass. 451, 474 (1991). Here, the evidence

supported the judge's conclusion that the defendants used the

Land Court judgment to attempt to leverage a better deal for

themselves from the abutters, who faced renegotiation or filing

an action to enforce the agreement. "[W]hen the breaching party

uses its failure to make payments as a wedge against the other

party to gain advantages . . . the breaching party's conduct

rise[s] to the level of an unfair trade practice under G. L.

c. 93A." Zabin v. Picciotto, 73 Mass. App. Ct. 141, 170 (2008).

Finally, we discern no error in the interest award on the

G. L. c. 93A claim. Interest on a judgment of liability for a

violation of G. L. c. 93A is subject to the statutory interest

rate applicable to tort judgments. See generally Greene v.

Philip Morris USA Inc., 491 Mass. 866, 880-881 (2023). The

interest runs from the filing of the complaint even though this

count was raised only in an amended complaint because the

amended complaint relates back to the filing of the complaint.

21
See Mass. R. Civ. P. 15 (c), 365 Mass. 761 (1974). See also

Gill v. North Shore Radiological Assocs., Inc., 385 Mass. 180,

183 (1982).

Conclusion. The judgment of the Superior Court is

affirmed. The abutters seek an award of appellate attorney's

fees pursuant to G. L. c. 93A, § 9 (4), which we allow. See

Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445

Mass. 411, 433 (2005). Consistent with the requirements of

Fabre v. Walton, 441 Mass. 9, 10 (2004), the abutters may file a

request for appellate attorney's fees and costs, along with

supporting documentation, within fourteen days of the issuance

of the decision in this case. The defendants shall have

fourteen days thereafter within which to respond.

Judgment affirmed.

By the Court (Henry, Hand &
Brennan, JJ.17),

Clerk

Entered: November 18, 2025.

17 The panelists are listed in order of seniority.

22