THERESA DIPIRO & Another v. GROUND UP CONSTRUCTION, INC., & 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

23-P-1343

THERESA DIPIRO & another1

vs.

GROUND UP CONSTRUCTION, INC., & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After trial in the Superior Court, a jury found the

plaintiff homeowners breached their home improvement contract

with the defendants, Damian M. Anketell and Ground Up

Construction, Inc. (collectively, "contractor"), and that the

contractor made negligent representations to the plaintiff

homeowners. The jury determined that each party sustained

damages in an equal amount, thereby cancelling out damages.

Subsequently, the judge presided over a bench trial and found

the contractor to be in violation of the home improvement

contractor statute and unfair trade practices statute and

1 Timothy Smith.
2 Damian M. Anketell.
awarded double damages and attorney's fees to the homeowners in

connection thereto. On appeal, the contractor challenges the

award of attorney's fees to the pro se homeowners under the

unfair trade practices statute, G. L. c. 93A. The homeowners

cross-appeal raising numerous other issues. After review, we

affirm.

Discussion. 1. Award of attorney's fees to pro se

litigants. Under G. L. c. 93A, prevailing plaintiffs are

entitled to be awarded their "reasonable attorney's fees and

costs incurred in connection with said action." G. L. c. 93A,

§ 9 (4). The contractor's claim on appeal is that the

homeowners did not incur any attorney's fees in connection with

their c. 93A action, as they represented themselves pro se.

Although the homeowners were represented by counsel at the

start of the litigation in April 2015, their counsel withdrew in

January 2016. During this time frame, the case did not involve

any allegation of a c. 93A violation. Later, in November 2017,

the homeowners sent a pro se c. 93A demand letter to the

contractor, followed up by a March 2018 pro se motion to amend

the complaint to add a c. 93A count. The homeowners further

tried the c. 93A claim pro se. After prevailing on their c. 93A

claim, the homeowners submitted an application for attorney's

fees, supported by an affidavit setting forth legal fees

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incurred from April 2015 through January 2016, prior to the time

that any c. 93A claim had been asserted.

The contractor argues that, because all the legal fees were

incurred prior to the commencement of any c. 93A action, those

fees could not have been incurred "in connection with said

action." G. L. c. 93A, § 9 (4). However, the homeowners argue,

as they did below, that their lawyers drafted the c. 93A letter

and amended complaint, including the c. 93A count, before

withdrawing from the case; the homeowners explain that they

delayed pursuing the c. 93A claim because they did not want to

be in violation of the automatic stay, occasioned by the

contractor's bankruptcy. This was a plausible explanation that

could have been accepted by the judge. Because this was

essentially a factual matter, with support in the record, we do

not disturb it.3

As the contractor has failed to establish the premise that

the homeowners incurred no legal fees in connection with their

c. 93A claim, we reject the argument that the judge erred in

awarding them attorney's fees under. c. 93A.

2. Homeowners' claims. a. Issue preclusion. Prior to

trial in this matter, the United States Bankruptcy Court

3 We note that the homeowners' application for attorney's
fees included a listing of legal invoices, the details of which
may have shed further light on the precise nature of the legal
work provided.

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conducted a trial on an adversary proceeding involving the

homeowners' claim that the contractor's debt to them should be

excepted from discharge. After trial, the bankruptcy judge

found that the homeowners had met their burden to show that the

debt arose out of false representations made by the contractor

and therefore allowed the homeowners to pursue their legal

claims for damages against the contractor in State court. There

was also an administrative hearing before the Massachusetts

Office of Consumer Affairs and Business Regulation on the

homeowners' complaint against the contractor alleging violation

of the Home Improvement Contractor Act, G. L. c. 142A, including

by making material misrepresentations in the procurement of the

contract. That hearing resulted in a temporary suspension of

the contractor's registration.

On appeal, the homeowners argue that the judge erred in

ruling that the findings and rulings of the bankruptcy court and

the administrative agency had no preclusive effect on the c. 93A

claim. A party is precluded from litigating an issue if "(1)

there was a final judgment on the merits in the prior

adjudication; (2) the party against whom preclusion is asserted

was a party (or in privity with a party) to the prior

adjudication; and (3) the issue in the prior adjudication was

identical to the issue in the current adjudication" and was

essential to the earlier judgment. Tuper v. North Adams

4
Ambulance Serv., Inc., 428 Mass. 132, 134 (1998). Whether issue

preclusion applies is a question of law that we review de novo.

See Alicea v. Commonwealth, 466 Mass. 228, 234 (2013).

Assuming that the prior proceedings each involved a final

adjudication on the merits and that the contractor was a party

to those proceedings, the earlier proceedings cannot be said to

have involved the identical issue as that in the c. 93A action.

To be sure, both prior proceedings involved the contractor's

misrepresentations, also at issue in the c. 93A action. In the

bankruptcy proceeding, however, the finding of misrepresentation

went to the issue of dischargeability of debt. In the

administrative proceeding, the finding of misrepresentation went

to the issue of the contractor's home improvement contractor

license status. By contrast, in the c. 93A action, the finding

of misrepresentation went to the issue of damages. Thus, we do

not view the issues to be identical.

In any event, the homeowners fail to articulate how the

trial judge's ruling regarding issue preclusion prejudiced their

c. 93A claim.4 Consistent with the bankruptcy court and the

4 The homeowners identify seven issues on appeal, six of
which challenge the judge's disposition of the c. 93A claim.
The seventh issue claims error in jury instructions, however,
the record on appeal does not include necessary documents, for
example, the jury trial transcript and the parties' request for
instructions. Because the record is insufficient to allow for
proper review of this claim, we do not address it. See Roby v.

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administrative agency, the trial judge found that the contractor

had made misrepresentations to the homeowners, had violated

c. 93A and c. 142A, and awarded the homeowners double damages

and attorney's fees in accordance with c. 93A.

b. Assessment of c. 93A damages. The homeowners contend

that the judge erred in finding that the contractor's c. 93A

violation was "not severe," as opposed to fact finders in the

prior proceedings who appeared to be less sympathetic to the

contractor. To the extent that the homeowners contend that

issue preclusion would have resulted in triple, rather than

double damages, neither the bankruptcy court nor the

administrative agency made findings assessing the damages

sustained by the homeowners. Moreover, even if the trial judge

had been bound by the earlier findings, it would not have

necessarily resulted in triple damages under c. 93A, as

evidenced by the bankruptcy court's finding that the contractor

made material misrepresentations but were not responsible for

willful and malicious injury to the homeowners.

Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App.
Ct. 410, 412 (2018) (appealing party's burden to provide record
appropriate for review and failure to do so is generally fatal
to claim). Not listed as an issue on appeal, but argued at the
end of their brief, the homeowners challenge certain factual
findings made by the judge. The homeowners' failure to provide
the court with an adequate record, including a transcript of the
trial, is fatal to those claims of error. See id.

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c. Assessment of attorney's fees against homeowners. The

homeowners take issue with the judge's finding that the

contractor prevailed on the breach of contract claim and so is

entitled to attorney's fees pursuant to a contract provision.

However, this was not so much a finding on the c. 93A claim as

it was a recitation of prior proceedings in the case.

To the extent the homeowners argue that the jury should

have been precluded from deciding the contractor's breach of

contract claim, the record is insufficient to allow us to make

such a determination. For example, the record does not disclose

when and how issue preclusion was first raised with respect to

the jury trial claims. See Aronovitz v. Fafard, 78 Mass. App.

Ct. 1, 8 (2010) (issue preclusion is affirmative defense which

is waived if not raised in first responsive pleading). To the

extent that the homeowners argue that the judge erred in the

amount of attorney's fees assessed because most of the fees

dealt with proceedings not involving the contract dispute, this

argument was raised and dealt with in post-trial proceedings.

The motion judge determined that the trial judge had, in fact,

taken into consideration that some fees were unrelated to the

contract action and so reduced the fees approximately in half.

On appeal, the homeowners make no claim regarding the propriety

of this ruling. We do not consider it.

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d. Failure to consider voidable transfer claim. The

homeowners argue that the judge "chose not to hear" their

voidable transfer claim, but the judge stated in his findings

that the voidable transfer count "was not tried to the jury or

judge." At the outset, we are unable to determine whether the

homeowners were prevented from pursuing this claim or simply

presented no competent evidence on the subject matter. As the

record is insufficient for our review of this claim, we do not

consider it.

e. Calculation of c. 93A damages award. The homeowners

contend that the judge erred in calculating the c. 93A award,

because he used a $30,000 figure as the single damages amount to

be doubled, when he should have used "$89,898.64M," since that

was the total judgment awarded to the homeowners in the jury

trial.

According to c. 93A, "the amount of actual damages to be

multiplied by the court shall be the amount of the judgment on

all claims arising out of the same and underlying transaction or

occurrence." G. L. c. 93A, § 9 (3). Here, the amount of actual

damages found by the jury on all claims was $30,000. The

judgment itself reflects this amount as "single damages." The

$89,898.64 figure referenced by the homeowners includes

prejudgment interest and attorney's fees. These are not

elements of actual damages but rather are "in addition to other

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relief" provided by the statute. See G. L. c. 93A, § 9 (4).

There was no error in the judge using the $30,000 figure as

actual damages to be multiplied.

f. Findings on Home Improvement Contractors Act violation.

The homeowners argue that the judge failed to make any findings

on the contractor's violation of the Home Improvement

Contractor's Act, G. L. c. 142A. While not explicitly stated as

a violation of the Act, the judge did find that the contractor

falsely stated that there were several jobs in the pipeline when

attempting to get the homeowners' business and unlawfully

required payments far ahead of the work. See G. L. c. 142A,

§ 17 (4) (making material misrepresentation in procurement of

contract listed as prohibited act); G. L. c. 142A, § 17 (16)

(demanding or receiving payment in violation of schedule set

forth in Act listed as prohibited act). Thus, the judge did

make findings concerning the contractor's violation of the Act.

There was no error.

Judgment affirmed.

By the Court (Neyman, Singh &
Toone, JJ.5),

Clerk

Entered: May 6, 2025.

5 The panelists are listed in order of seniority.

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