LAWRENCE BUCCI & Another v. LINDSEY CAMPBELL & Another.

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

22-P-1241

LAWRENCE BUCCI & another 1

vs.

LINDSEY CAMPBELL & another. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the Superior Court, a jury found that the

defendants, William and Lindsey Campbell, had breached a

contract with the plaintiffs, Lawrence and Pamela Bucci, by

failing to install a natural gas line to the lot that the Buccis

had purchased from the Campbells. The Buccis also prevailed on

their claims of breach of the implied covenant of good faith and

fair dealing and of negligent, but not intentional,

misrepresentation by Lindsey. 3 The jury found for the Campbells

1 Pamela Bucci.

2 William Campbell.

3When referring to Lindsey Campbell or Lawrence Bucci
individually, we will use their first name.
on their counterclaim of breach of contract based on the Buccis'

failure to release the last part of the purchase price, which

was held in escrow under a side agreement. The trial judge, who

had reserved the Buccis' claim under G. L. c. 93A, subsequently

ruled in favor of the Campbells on that claim and denied both

parties' motions for judgment notwithstanding the verdict. On

the Buccis' appeal, 4 we affirm the jury verdict but vacate the

judge's dismissal of their c. 93A claim.

Background. The following evidence was presented at trial.

The Campbells were the owner-developers of the Hummingbird Lane

subdivision in Westford. Their subdivision plan, approved by

the town planning board, contemplated that the lots would be

serviced by underground natural gas (and electric) lines. The

Campbells, however, had concerns about the cost of installing

the natural gas line; Lindsey had numerous communications with

National Grid representatives from November 2017 through October

2018 discussing the costs and cost-saving options for installing

the line. In July 2018 Lindsey learned that all National Grid

projects had been delayed until at least the spring of 2019

because of a work stoppage.

4 The Campbells filed a notice of appeal from the judgment,
after which the Buccis filed a notice of cross appeal. The
Campbells' appeal was dismissed for lack of prosecution. See
Appeals Court Rule 19.0.

2
On October 30, 2018, Lindsey, who was a real estate agent,

listed "Lot 2" of the subdivision for sale; the listing sheet

stated "Gas: Nearby." The Buccis testified that having a

natural gas line was very important to them, and that Lindsey

promised during a meeting in early November 2018 that the lot

would be serviced by a gas line. Lindsey testified that she

made no such promise and told Lawrence only that she "hoped for

natural gas" but that installation was unlikely because of the

National Grid work stoppage. Lindsey denied that at the time of

that meeting she had already decided to forego natural gas.

Indeed, as late as April 2019 Lindsey continued to communicate

with National Grid about the possibility of installing a gas

line.

On November 19, 2018, the Campbells and Lawrence entered

into a purchase and sale agreement whereby Lawrence acquired Lot

2 of the subdivision for $330,000. Shortly before closing on

the purchase in late February 2019, it became apparent that the

Campbells needed cash to pay their contractor for site

excavation work and for other work necessary to deliver the

Buccis' lot. Accordingly, the parties entered into a "side

agreement" (the escrow agreement) in which the Campbells agreed

that $90,000 from the sale proceeds would be distributed

directly to their contractor and further agreed to "perform the

work required by the Town of Westford for the roadway,

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stormwater management systems, infrastructure, utilities, and

landscaping" for Lot 2 as required in the subdivision plan. For

this purpose, they agreed that $40,000 from the sale proceeds

would be placed in an escrow account "to be utilized by the

Campbells to pay for the work referenced herein as needed," with

any remaining balance to be released to the Campbells "once the

binder coat of black top [had] been laid" for the roadway. The

Campbells immediately disbursed almost $29,000 of the escrowed

funds to the contractor for additional work, and later disbursed

another $5,500, leaving a balance of just over $5,000. When the

binder coat was laid in May 2019 without a natural gas line

having been installed, the Buccis refused to release the balance

of the escrowed funds. The Campbells then applied for and

obtained a modification of their approved subdivision plan from

the planning board, releasing them from the plan's requirement

to install natural gas lines. 5 Shortly thereafter, the Buccis

initiated this lawsuit against the Campbells.

Discussion. 1. Intentional misrepresentation. The Buccis

challenge the jury's verdict that Lindsey's statements prior to

the Buccis' purchase of the property did not amount to

5 The notice of approval of the modification stated that the
approved subdivision plan included a "requirement to install the
proposed gas line," but that nothing in the planning board's
rules and regulations required installation of natural gas lines
and that the proposal not to install a gas line was a "minor
change to the approved plan."

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intentional misrepresentations. The Buccis bear "a particularly

heavy burden" to prevail on this claim. Brewster Wallcovering

Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582,

594 (2007). See Cahaly v. Benistar Prop. Exch. Trust Co., 451

Mass. 343, 350, cert. denied, 555 U.S. 1047 (2008) ("nullifying

a jury verdict is a matter for the utmost judicial

circumspection"). "An appellate court will not set aside a jury

verdict on any material fact found by a jury unless the jury

verdict or fact has no rational basis in the evidence."

Brewster Wallcovering Co., supra at 594-595. "A jury verdict

will be upheld so long as 'anywhere in the evidence, from

whatever source derived, any combination of circumstances could

be found from which a reasonable inference could be drawn in

favor of" the prevailing party. Id. at 595, quoting Tufankjian

v. Rockland Trust Co., 57 Mass. App. Ct. 173, 178 n.9 (2003).

To establish intentional misrepresentation, a plaintiff

must prove "(a) an intentional or reckless (b) misstatement

(c) of an existing fact (d) of a material nature, (e) causing

intended reasonable reliance and (f) financial harm to the

plaintiff." Welch v. Barach, 84 Mass. App. Ct. 113, 120 n.11

(2013). Lindsey testified that at the time of her meeting with

Lawrence in early November 2018, she had not yet decided to

install propane instead of natural gas, and that she told

Lawrence that she "hoped for" natural gas but that a National

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Grid work stoppage made the installation of a gas line unlikely.

Indeed, there was evidence that in January 2019 Lindsey was

still "reaching out [to National Grid] to try to see if anything

was changed or what possibilities there were in regard to

natural gas." Even if her testimony at trial was inconsistent

with her deposition testimony, the jury were free to believe or

disbelieve, in whole or in part, any part of her testimony, and

to discredit the Buccis' testimony to the contrary. See

Commonwealth v. Tennison, 440 Mass. 553, 566 (2003); Calderone

v. Wright, 360 Mass. 174, 176 (1971); Klayman v. Silberstein,

252 Mass. 275, 278 (1925). Indeed, "[r]eview of these motions

require[s] us to construe the evidence in the light most

favorable to the nonmoving party and disregard that favorable to

the moving party." O'Brien v. Pearson, 449 Mass. 377, 383

(2007).

The jury found that any misrepresentations made by Lindsey

were negligent but not intentional. As the evidence provided a

rational basis from which they could do so, we have no basis to

set aside the verdict on the intentional misrepresentation

claim.

2. Breach of contract counterclaim. The Buccis argue that

the judge erred in denying their motion for judgment

notwithstanding the verdict on the Campbells' counterclaim for

breach of contract. As the case was presented to the jury, the

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Campbells claimed that the Buccis breached the escrow agreement

by refusing to release the remaining balance of $5,357 as soon

as the binder coat was laid. The Buccis argued that they were

excused from any contractual obligation to release the escrow

funds because the Campbells breached the escrow agreement

first -- by disbursing funds before the binder coat was applied.

See Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010)

("a material breach of contract by one party excuses the other

party from performance as a matter of law" [quotation omitted]).

The jury had a rational basis in evidence for rejecting the

Buccis' argument and finding in favor of the Campbells. The

escrow agreement permitted them to use escrowed funds to pay

their contractor "for the work referenced herein as needed,"

which was not limited to installation of a gas line, but

included any work "for the roadway, stormwater management

systems, infrastructure, utilities, and landscaping."

In their motion for judgment notwithstanding the verdict,

the Buccis argued that the Campbells' theory of breach of

contract should not have gone to the jury because it varied from

the contract claim alleged in their counterclaim. As to this

argument, the judge ruled that the Buccis had "waived objection

to the jury deciding this issue." We agree with the judge in

this regard, as the Buccis made no objection at trial to the

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jury instructions or to the verdict slip. 6 See Motsis v. Ming's

Supermkt., Inc., 96 Mass. App. Ct. 371, 383 (2019).

Furthermore, as the Buccis were on notice of the implicit

amendment of the complaint to conform to the evidence, and the

case was fully and fairly tried on that basis, the judge did not

err in permitting the claim to go to the jury. See St. Clair v.

Trustees of Boston Univ., 25 Mass. App. Ct. 662, 669-670 (1988).

The Buccis also made a new argument, which they continue to

advance on appeal: that the Campbells' prior breach, excusing

the Buccis' obligation to release the balance of the escrowed

funds, was the Campbells' failure to install the natural gas

line. Because this argument was raised for the first time in

the motion for judgment notwithstanding the verdict and was not

asserted in the Buccis' motion for a directed verdict, 7 it is

6 Counsel for the Buccis stated during the charge conference
that he believed the "escrow issue" was "out of the case because
it was pled as tortious interference"; the judge responded that
the Campbells' contract claim was still "in the case," and that
the nature of that claim was an issue to be clarified between
counsel. During closing argument, counsel for the Buccis
addressed the Campbells' claim for breach of the escrow
agreement as presented and without objection.

7 The Buccis' motion for a directed verdict focused on the
Campbells' assertion that the Buccis failed to provide the
twenty-day notice of default and opportunity to cure set forth
in the escrow agreement. Counsel for the Buccis argued that
notice to cure was futile because the Campbells would not have
been able to install a gas line in twenty days. This line of
argument was not sufficient to alert the judge of any claim that
failure to install the gas line was a breach of the escrow

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waived. "As a motion for judgment notwithstanding the verdict

is technically a revised motion for a directed verdict, no

grounds for the motion for judgment notwithstanding the verdict

may be raised which were not asserted in the directed verdict

motion." Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31,

34 (1991), S.C., 412 Mass. 612 (1992). See Shafir v. Steele,

431 Mass. 365, 371 (2000); Motsis, 96 Mass. App. Ct. at 382;

Matley v. Minkoff, 68 Mass. App. Ct. 48, 52 (2007).

3. Liability under G. L. c. 93A. The Buccis argue that the

trial judge erred in entering judgment against them on their

c. 93A claim. "[W]hether a particular set of acts, in their

factual setting, is unfair or deceptive is a question of fact.

But whether conduct found to be unfair or deceptive rises to the

level of a chapter 93A violation is a question of law"

(quotations and citations omitted). H1 Lincoln, Inc. v. South

Washington St., LLC, 489 Mass. 1, 13-14 (2022). Of the four

elements necessary to prove a claim under G. L. c. 93A, § 9, see

Rafferty v. Merck & Co., 479 Mass. 141, 161 (2018), the only

element at issue here is whether the Campbells' conduct amounted

to unfair or deceptive acts or practices. We review the trial

agreement excusing the Buccis' performance. See Bonofiglio v.
Commercial Union Ins. Co., 411 Mass. 31, 35-36 (1991), S.C., 412
Mass. 612 (1992) ("The requirement that a litigant state
specific grounds in support of a motion for directed verdict is
an important one" in part because "[i]t allows the judge
knowingly to rule on the question before him").

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judge's conclusions of law on this issue de novo. See Casavant

v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011).

The judge found that the Campbells' conduct in dropping the

natural gas line from the project was "a bit sleazy," and that

they relied on "an extremely weak claim," hoping that the Buccis

would not challenge them. Nonetheless, the judge concluded that

the Campbells' conduct did not "rise to the level of rascality[8]

or misconduct required" for a c. 93A violation. We disagree.

The Buccis suggest incorrectly that because the jury found

Lindsey liable for negligent misrepresentation, the judge was

bound to find a c. 93A violation. See Specialized Technology

Resources, Inc. v. JPS Elastomerics Corp., 80 Mass. App. Ct.

841, 844 (2011) ("a jury's verdict on related common-law claims

is not binding on a judge who has reserved determination of a

c. 93A claim to herself"). "It is indeed both possible and

feasible for a judge deciding a c. 93A claim to make findings of

8 The standard for a c. 93A violation does not include an
inquiry into "rascality." See Massachusetts Employers Ins.
Exch. v. Propac-Mass, Inc., 420 Mass. 39, 42-43 (1995) ("We view
as uninstructive phrases such as 'level of rascality' . . . in
deciding questions of unfairness under G. L. c. 93A"). If
"rascality" has any relevance, it is limited to business-to-
business transactions. See Anthony's Pier Four, Inc. v. HBC
Assocs., 411 Mass. 451, 475-476 (1991); Greenery Rehabilitation
Group, Inc. v. Antaramian, 36 Mass. App. Ct. 73, 78-79 (1994);
Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504
(1979). The judge's reliance on the "rascality" standard may
have led to error in his ultimate finding.

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fact that are contrary to those made by a jury on a parallel

common law claim." Kattar v. Demoulas, 433 Mass. 1, 12 (2000).

Nonetheless, the judge's findings clearly demonstrated that

he agreed with jury's verdict. Although he stated that the

verdict was not "advisory" and had "no issue preclusive effect"

on him, he found "that the jury's verdicts were the product of

careful and cautious consideration of the evidence and careful

and cautious consideration of the court's written jury

instructions," going on to note that "[t]he lengthy verdict slip

was executed logically and carefully in all details, reflecting

the jury's careful attention to the evidence and the jury's

careful attention to the court's instructions." In that logical

and careful verdict slip, the jury found both that the Campbells

breached the implied covenant of good faith and fair dealing in

their agreement to install a natural gas line to the Buccis'

property, and that Lindsey negligently (but not intentionally)

supplied false information to the Buccis on which they

reasonably relied to their detriment. Based on the judge's

acceptance of the jury's findings, combined with his additional

subsidiary findings, we conclude as a matter of law that the

Campbells' conduct was both "deceptive" and "unfair" within the

meaning of c. 93A. See Chiulli v. Liberty Mut. Ins., Inc., 97

Mass. App. Ct. 248, 259 (2020) (judges' ultimate findings will

be set aside when inconsistent with subsidiary findings).

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"An act or practice will be found deceptive if, first,

there is a representation, omission, or practice that, second,

is likely to mislead consumers acting reasonably under the

circumstances, and third, the representation, omission, or

practice is material" (quotations omitted). Connor v. Marriott

Int'l, Inc., 103 Mass. App. Ct. 828, 836 (2024). Lindsey's

negligent misrepresentation satisfied all three of these

conditions. Indeed, "we decided some years ago that 'negligent

misrepresentation of fact the truth of which is reasonably

capable of ascertainment is an unfair and deceptive act or

practice within the meaning of c. 93A, § 2 (a).'" Golber v.

BayBank Valley Trust Co., 46 Mass. App. Ct. 256, 261 (1999),

quoting Glickman v. Brown, 21 Mass. App. Ct. 229, 235 (1985).

See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 62

(2004). The jury's finding of negligent misrepresentation,

supplemented by the judge's findings that the Campbells' conduct

was "a bit sleazy," and that they hoped to save money by

sneaking an "extremely weak" (albeit "nonfrivolous") claim past

the Buccis, was sufficiently "extreme or egregious" to qualify

as a c. 93A violation. See O'Connor v. Merrimack Mut. Fire Ins.

Co., 73 Mass. App. Ct. 205, 216-217 (2008).

In addition, "a breach of the implied covenant of good

faith and fair dealing may constitute an unfair or deceptive act

or practice for the purposes of G. L. c. 93A." Massachusetts

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Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 43

(1995). The jury's finding that the Campbells breached the

implied covenant of good faith and fair dealing, supplemented by

the judge's finding that they did so for their own economic

advantage, compels the conclusion that their conduct was

deceptive as a matter of law. See Columbia Plaza Assocs. v.

Northeastern Univ., 493 Mass. 570, 587 (2024), quoting Anthony's

Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 474 (1991)

("Business conduct 'in disregard of known contractual

arrangements' and aimed at securing benefits for the breaching

party is an unfair act or practice under G. L. c. 93A"). See

also Anthony's Pier Four, Inc., supra (agreeing that judge's

rulings finding violation of covenant of good faith and fair

dealing but denying c. 93A claim "cannot be squared").

The Campbells' conduct was also "unfair." "We have stated

that a practice or act will be unfair under G. L. c. 93A, § 2,

if it is (1) within the penumbra of a common law, statutory, or

other established concept of unfairness; (2) immoral, unethical,

oppressive, or unscrupulous; or (3) causes substantial injury to

competitors or other business people." Connor, 103 Mass. App.

Ct. at 834-835, quoting Heller Fin. v. Insurance Co. of N. Am.,

410 Mass. 400, 408 (1991). In this regard, the Attorney General

defines "fail[ure] to disclose to a buyer or prospective buyer

any fact, the disclosure of which may have influenced the buyer

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or prospective buyer not to enter into the transaction" as a

violation of c. 93A. 940 Code Mass. Regs. § 3.16(2) (2020).

The Campbells' failure to fully disclose their reluctance to pay

for installation of a natural gas line or their intent to allow

the contractor to lay the binder coat without first installing

the gas line also amounted to an unfair business practice.

Based on the subsidiary facts found by the judge, and

applying de novo review of his legal conclusions, judgment

should have entered for the Buccis on their c. 93A claim. By

contrast, the ambivalence of the judge's findings -- pronouncing

the Campbells' conduct to be "sleazy," yet not rising to the

level of a c. 93A violation -- does not compel the legal

conclusion that the Campbells' "use or employment of the act or

practice was a willful or knowing violation" requiring multiple

damages. G. L. c. 93A, § 9 (3).

Chapter 93A does not mandate multiple damages for negligent

misrepresentations. See Hyannis Anglers Club, Inc. v. Harris

Warren Commercial Kitchens, LLC, 91 Mass. App. Ct. 555, 561

(2017); VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct.

610, 623 (1994). "To be wilful or knowing, a violation need not

be malicious, but must constitute more than negligence. Within

that range is conduct that is intentionally gainful, . . . or

demonstrates a wilful recklessness or conscious, knowing

disregard for its likely results" (quotation omitted). Chiulli,

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97 Mass. App. Ct. at 260. As the judge's subsidiary findings do

not conclusively demonstrate intentional conduct, contrast

Hyannis Anglers Club, Inc., supra, we remand the case for

further findings, and the taking of further evidence if

necessary, to determine whether to impose multiple damages.

Conclusion. The case is remanded for entry of judgment in

favor of the Buccis on their c. 93A claim; for further findings

as to whether the Campbells' conduct rose to the level of a

willful or knowing violation warranting multiple damages under

G. L. c. 93A, § 9 (3); and for an award of reasonable attorney's

fees under G. L. c. 93A, § 9 (4). In all other respects, the

judgments are affirmed. We allow the Buccis' request for an

award of their reasonably incurred appellate attorney's fees and

costs, limited to those fees and costs incurred in connection

with their c. 93A claim. The Buccis may file with the clerk of

this court materials detailing and supporting the requested

award within fourteen days of the issuance of this decision, in

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accord with the procedure outlined in Fabre v. Walton, 441 Mass.

9, 10-11 (2004). The Campbells shall have fourteen days

thereafter to respond.

So ordered.

By the Court (Rubin,
Massing & Grant, JJ. 9),

Clerk

Entered: February 24, 2025.

9 The panelists are listed in order of seniority.

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