AVALON BUILDING SYSTEMS, INC. v. MARIA KULIOPULOUS & 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

24-P-40

AVALON BUILDING SYSTEMS, INC.

vs.

MARIA KULIOPULOUS & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants, Maria Kuliopulous and White Sands Beach

Club, Inc., own and operate a hotel in Truro. After a fire

destroyed nineteen rooms in 2014, the defendants sought to

rebuild that portion of the hotel. In 2015, Kuliopulous entered

into an agreement with the plaintiff, Avalon Building Systems,

Inc. (Avalon). The agreement stated that Kuliopulous would pay

Avalon $5,000 as a deposit "towards a new modular motel

building" that Avalon would design, and that the parties

1White Sands Beach Club, Inc. In the defendants' brief,
Maria Kuliopulous's name is spelled "Maria Kuliopulos." As is
our custom, we spell her name as it was spelled in the
complaint.
understood that Kuliopulous would "make a purchase of a modular

home" from Avalon and "[f]ormal contracts" would follow.

In 2020, Avalon sued the defendants for breach of contract,

quantum meruit, and violation of G. L. c. 93A, § 11. It alleged

that it had worked "with the defendants on the project for over

four (4) years" and that it "relied upon the many promises of

the defendants . . . with the reasonable understanding and

belief that the defendants would pay Avalon." The defendants

counterclaimed on several grounds including violation of G. L.

c. 93A, § 11.2 Following a trial in Superior Court, the jury

found in favor of Avalon on its breach of contract claim and

c. 93A claim, but not on its claim for quantum meruit. The jury

found in favor of the defendants on their c. 93A claim. In a

posttrial memorandum and order, the judge tripled Avalon's

damages under c. 93A and doubled the defendants' damages under

c. 93A. The judge also awarded Avalon attorney's fees and costs

under c. 93A. The defendants filed a motion for a new trial or

alternatively remittitur and a motion for judgment

notwithstanding the verdict, and the judge denied both motions.

The defendants appeal from the judgments on jury verdicts and

2 The judge dismissed the defendants' counterclaim for
equitable estoppel and allowed Avalon's motion for a directed
verdict on the defendants' counterclaims for intentional
interference with business relations and trespass.

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the judge's order denying their postjudgment motions. We

affirm.

Discussion. 1. The jury's finding of a breach of

contract. The defendants contend that we should vacate the

jury's verdict because "Avalon failed to establish a breach of

contract,"3 but that issue is not preserved for our review. The

judge denied the defendants' motion for judgment notwithstanding

the verdict because they did not move for a directed verdict at

trial. See Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402

(1998). That failure also precludes them from challenging the

jury's finding of a breach of contract on appeal. See Hatton v.

Meade, 23 Mass. App. Ct. 356, 361 (1987) ("[W]here a losing

party has not moved for a directed verdict at the close of all

the evidence, rule 50 [b] not only precludes [a] the granting to

that party of a motion for judgment n.o.v., but also

[b] appellate review of the sufficiency of the evidence to

support the verdict").

3 Ordinarily, whether a contract has been made is a question
of fact for the jury. David J. Tierney, Jr., Inc. v. T.
Wellington Carpets, Inc., 8 Mass. App. Ct. 237, 239 (1979). The
crux of the defendants' argument is that there was insufficient
evidence of a contract between the parties "other than the
Preliminary Agreement." However, the verdict slip (to which the
defendants did not object) asked the jury to decide only whether
any contract existed (i.e., not a contract or contractual
relationship beyond the agreement the parties indisputably
entered into in 2015) and, if so, whether it was breached.

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2. Damages for breach of contract. The defendants also

appeal from the denial of their motion for a new trial or

alternatively remittitur. They maintain that the jury's award

of $275,000 in damages for breach of contract was speculative,

excessive, and not reasonably foreseeable. "[T]he allowance of

a motion for a new trial based upon an inadequate or excessive

award of damages, and the direction of an addition or

remittitur, rests in the sound discretion of the judge."

Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 (2009),

quoting Blake v. Commissioner of Correction, 403 Mass. 764, 771

(1989). We apply a "highly deferential" standard in assessing

the evidence supporting a jury's award of damages and will

overturn such an award only if it is "clearly excessive in

relation to what the plaintiff's evidence ha[d] demonstrated

damages to be." Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10

(2020), quoting Ayash v. Dana-Farber Cancer Inst., 443 Mass.

367, 404, cert. denied sub nom. Globe Newspaper Co. v. Ayash,

546 U.S. 927 (2005).

The judge concluded that the jury's award of damages was

supported by the evidence and consistent with the purposes of

contract damages. Paul Oliveira, the president of Avalon,

testified that the entire project would have cost approximately

$2 million and that Avalon's expected profit would have been

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$275,000 to $280,000. Although the defendants contend that

Avalon should have at most recovered its expected profit of

$113,866 on the price of $759,107 quoted in a proposed 2016

formal agreement, Oliveira testified that the quoted price "did

not include the site, foundation, and decks, because they

weren't designed yet." Oliveira also testified that Avalon

spent approximately $237,499 on labor and other costs for the

project. Considered in its totality, and with regard for the

highly deferential standard of review, we conclude that this

evidence was sufficient to allow the jury "to arrive at a

reasonably approximate estimate of damages." Brewster

Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.

App. Ct. 582, 609 (2007). Accordingly, the judge acted within

his discretion in denying the defendants' motion. For the same

reasons, we reject the defendants' argument that allowing the

jury's award of damages to stand would result in "an

unconscionable windfall to Avalon" or "miscarriage of justice."

3. Award of c. 93A damages. The defendants argue that the

judge erred in denying their motion for remittitur because the

$74,875 in damages the jury awarded to Avalon under c. 93A were

duplicative of the breach of contract damages and that Avalon

should have instead received only nominal damages. It is true

that "a breach of contract, even if intentional, does not in

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itself amount to an unfair act or practice under G. L. c. 93A,

§ 11," H1 Lincoln, Inc. v. South Washington Street, LLC, 489

Mass. 1, 20 n.13 (2022), and that "[w]here injury is incurred

because of conduct which comprises the elements of any common

law . . . cause of action, and which is also a violation of

[G. L. c. 93A], recovery of cumulative damages under multiple

counts may not be allowed," Calimlim v. Foreign Car Ctr., Inc.,

392 Mass. 228, 235 (1984). Here, the jury could have based

their finding of a c. 93A violation and award of damages on

conduct by the defendants distinct from their failure to pay

Avalon for their work. As the judge explained in his posttrial

memorandum and order, this conduct included the defendants'

failure to inform Avalon about their inability to resolve zoning

issues with the town and the resulting delay in permitting,

their urging Avalon to perform services and incur expenses

despite having been notified by the town's building commissioner

that they would not meet the permitting deadline, their attempt

to undermine Avalon by shopping for another modular building

manufacturer while using Avalon's proprietary design, and their

undisclosed negotiations with another builder after Avalon had

worked on the project for several years. We agree with the

judge that these facts provided a sufficient basis for the award

of c. 93A damages. See Baudanza, 454 Mass. at 630.

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4. Multiple damages. For similar reasons, we reject the

defendants' claim that the judge erred in tripling the damages

on Avalon's c. 93A claim to $224,625. "Under G. L. c. 93A,

§ 11, [a plaintiff] is entitled to multiple (not more than

treble and not less than double) damages if [the defendant]

acted 'knowingly' or 'wilfully' in violation of [G. L. c. 93A,

§ 2]." Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451,

475 (1991). A judge's decision to award multiple damages for a

violation of c. 93A is "based on the egregiousness of the

defendant's conduct" (citation omitted). Hug v. Gargano &

Assocs., P.C., 76 Mass. App. Ct. 520, 527 (2010). In reviewing

an award of multiple damages under c. 93A, "we are bound by a

judge's findings of fact that are supported by the evidence,

including all inferences that may reasonably be drawn from the

evidence." Klairmont v. Gainsboro Rest., Inc., 465 Mass. 165,

183 (2013), quoting Twin Fires Inv., LLC v. Morgan Stanley Dean

Witter & Co., 445 Mass. 411, 420 (2005). Here, the judge did

not clearly err in finding that the defendants' unfair and

deceptive conduct, which included "stringing along" Avalon for

several years, see H1 Lincoln, Inc., 489 Mass. at 17-18, was

egregious enough to warrant the imposition of multiple damages,

see Klairmont, supra, at 183-184.

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5. Statute of frauds. Claiming that "further enforcement

of the Preliminary Agreement and any other contract found by the

jury" was barred under the statute of frauds, the defendants

contend that the judge erred in not instructing the jury on

their statute of frauds defense. We have previously held that

whether a contract satisfies the statute of frauds is a question

of law, not an issue of fact for a jury. See Simon v. Simon, 35

Mass. App. Ct. 705, 709 (1994); Waltham Truck Equip. Corp. v.

Massachusetts Equip. Co., 7 Mass. App. Ct. 580, 585 (1979)

("[T]he judge's refusal to allow the jury to make its own

appraisal of the sufficiency of the writings involved here was

proper"). In any event, even though the defendants requested a

statute of frauds instruction, they did not object to the

judge's refusal to give it. See Mass. R. Civ. P. 51 (b), 365

Mass. 816 (1974) ("No party may assign as error the giving or

the failure to give an instruction unless he objects thereto

before the jury retires to consider its verdict, stating

distinctly the matter to which he objects and the grounds of his

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objection"). That failure precludes them from challenging the

judge's decision now.4

Judgments entered on May 5,
2023, affirmed.

Order entered on May 30,
2023, denying postjudgment
motions affirmed.

By the Court (Ditkoff,
Grant & Toone, JJ.5),

Clerk

Entered: March 3, 2025.

4 Avalon requests that we award attorney's fees and costs
incurred in connection with this appeal. See Yorke Mgmt. v.
Castro, 406 Mass. 17, 19 (1989) ("The statutory provisions [of
G. L. c. 93A] for a 'reasonable attorney's fee' would ring
hollow if it did not necessarily include a fee for the appeal").
In accordance with the procedure set forth in Fabre v. Walton,
441 Mass. 9, 10-11 (2004), Avalon shall file a verified and
itemized application for such fees and costs within fourteen
days of the date of this decision, and the defendants will have
fourteen days thereafter in which to file any opposition to the
amounts requested.

5 The panelists are listed in order of seniority.

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