WICKED-LITE SUPPLY, INC., & Another v. WOODFOREST LIGHTING, INC., & 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-88

WICKED-LITE SUPPLY, INC., & another 1

vs.

WOODFOREST LIGHTING, INC., 2 & others. 3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Wicked-Lite Supply, Inc. (Wicked-Lite) purchased

approximately 5,500 T5N LED integrated lamps (light fixtures or

lights) from Woodforest Lighting, Inc. (Woodforest). After

approximately one-half of the lights were installed by Wicked

Watts, Inc. (Wicked Watts), it was discovered that many of them

were not working properly. Kelly Cota, the owner and president

of both Wicked Watts and Wicked-Lite (collectively, Wicked),

contacted Woodforest about the problem. When Woodforest

provided replacement lights that were not compatible and could

1 Wicked Watts, Inc.

2 Doing business as Forest Lighting USA.

3 Ledvance, LLC, and MLS Co., Ltd.
not be installed, Wicked sued Woodforest and its parent company,

MLS Co., Ltd. (MLS), for breach of warranty, breach of the

implied warranty of merchantability, misrepresentation, and

violation of G. L. c. 93A, § 11. 4

Following a trial in Superior Court, the jury found in

favor of Wicked on its breach of warranty claim against

Woodforest, and on its claims of misrepresentation and violation

of c. 93A against both Woodforest and MLS. The jury found

against Wicked on its claim for breach of the implied warranty

of merchantability. In a posttrial memorandum and order, the

judge credited the jury's findings that both Woodforest and MLS

knowingly and willfully engaged in unfair and deceptive acts or

practices and entered judgment tripling Wicked's damages under

c. 93A. Because Wicked prevailed on its c. 93A claims, the

judge also awarded attorney's fees and costs. On appeal, the

defendants argue that (1) a transmittal e-mail message from a

Woodforest employee, and a test report attached to it stating

that a sample of the lights were faulty, were improperly

admitted in evidence; (2) the alleged conduct did not rise to

4 The plaintiffs also brought claims against Ledvance, LLC
(Ledvance), a company that produced lights for MLS. Ledvance's
motion for a directed verdict was allowed as to all claims and
Wicked did not file a cross appeal. Consequently, Ledvance is
not a party to this appeal.

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the level of a c. 93A violation; and (3) multiple damages under

c. 93A were not warranted. We affirm.

Background. The lights at issue were purchased or replaced

between December 2016 and August 2018. After approximately

2,700 lights were installed in various commercial, laboratory,

and college spaces in Massachusetts, many of them began to

flicker and then fail. At trial, Cota acknowledged that it was

"not uncommon . . . to have one or two fixtures fail . . . and

. . . fail quickly" by not turning on after installation.

However, as Cota went on to explain, she became "alarm[ed] . . .

that we started seeing failures increasing," and that the

fixtures at issue "started flickering, and then they would

eventually burn out." On July 24, 2018, Cota sent an e-mail

message to Woodforest and complained. Steven Dore, a Woodforest

employee, responded and suggested that the problems were caused

by installation or "sine wave" issues. Wicked then checked

various project sites for voltage spikes and dimmer concerns but

found none. The problems continued after Wicked ruled out site

and installation-related issues. Cota testified that "[clients

were] calling us back saying [the lights were] failing, they're

flickering." She said that she "kept having more and more

conversations" with Dore about the issues, who continued to

insist that there was no problem. The failures, first seen at

two to three sites, now affected five to six different projects

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and posed safety issues in places where lights were required to

remain on at all times.

Woodforest then offered to replace the lights with a new

(second-generation) fixture and sent several of these fixtures

to Wicked between June and August 2018. However, the new lights

were not the right voltage and were not compatible with the

existing lights at the various projects. Thus, despite being

sent what were represented as replacements, Wicked could not

install them. Cota testified that she repeatedly notified

Woodforest of these issues. She stated that on one occasion, "I

called them and I said these don't mount together, they are not

even the exact same connecting points, . . . [and] they said,

well, it's close enough. And I said it's not close enough, it's

not going to work." On another occasion, a Wicked employee,

Mike Federici, sent an e-mail message to Dore asking, "[c]an we

assume that . . . the new version [of the fixtures] cannot be

connected to the first version or gen one in series," to which

Dore responded "[t]hat's correct."

Faced with increased pressure from her clients and threats

of lawsuits, Cota pressed Woodforest for information about what

could have caused the lights to fail. On September 18, 2018,

Dore sent Cota an e-mail message to which he attached a "test

report," dated March 29, 2017, from Applied Technical Services,

Incorporated (ATS report or report). The subject of the report

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concerned testing conducted on eight lamps by ATS to determine

the cause of the "problems with flickering." The tests revealed

that "[f]ive of the eight lamps were found to be faulty and

produced a stroboscopic flicker when powered." In his e-mail

message to Cota and Federici, Dore confirmed that "[t]he report

pointed out three specific components causing the flickering."

He went on to advise her that "we can tell the customer . . .

that we have switched to a new vendor with a more reliable

component supplier[] to eliminate any high rate of failures."

Cota related that upon receiving the message, "she f[e]ll off

her chair." As she explained, "I've been in the lighting

industry for 32 years. This is a certified test laboratory,

independent from [Woodforest], from myself, from everybody. So

[Woodforest] took this upon themselves." She then called Dore

and accused him of selling her a product "knowing that it was

bad." Cota claimed that Dore responded, "I don't know what to

say to you . . . [l]et me call [president of Woodforest] Jian Ni

and see what we can do."

Additional discussions between Cota and Woodforest did not

resolve the issue. Cota testified that she felt like "a hamster

on a wheel." At one point, Jian Ni wrote to MLS and stated that

the company would not be able to replace the fixtures. He

expressed the view that Cota should be compensated, saying: "I

think the most viable solution[] is to fully credit them . . .

5
and offer certain monetary compensation to conclude this issue."

Ultimately, Woodforest offered Wicked free fixture replacements,

and, if it could not adequately supply them, offered to provide

Wicked with lights manufactured by Ledvance, a company recently

acquired by MLS. Despite the offer and the previously-noted

issues with Woodforest's replacements, Cota testified that she

was never provided with anything from Ledvance. Eventually,

Wicked replaced the lights with new ones purchased from a

different company.

At the close of evidence, MLS, but not Woodforest, moved

for a directed verdict, which the judge denied. As noted, the

jury found in favor of the plaintiffs for breach of warranty and

misrepresentation, but did not find a breach of the implied

warranty of merchantability. With respect to the c. 93A claims,

which were submitted to the jury on an advisory basis, the jury

found that Woodforest and MLS had engaged in unfair or deceptive

acts or practices in trade or commerce and that such acts were

knowing and willful. 5

5 Specifically, for each defendant, the jury answered "Yes"
to the questions: (1) "Did [plaintiffs] prove that [defendant]
engaged in one or more unfair or deceptive acts or practices in
trade or commerce?"; (2) "Did [plaintiffs] prove that the unfair
or deceptive act(s) or practice(s) . . . were knowing or
willful?"

6
After trial, MLS, but not Woodforest, filed a motion for

judgment notwithstanding the verdict, and Wicked moved for

findings of fact and rulings of law on the c. 93A counts.

Following a hearing, the judge denied MLS's motion, and as

previously discussed, adopted the jury's findings that both

defendants had knowingly and willfully engaged in unfair or

deceptive acts or practices before entering the judgment

described above.

Discussion. 1. Admission of the transmittal e-mail

message and ATS report. 6 The defendants objected to the

admission of Dore's e-mail message and the ATS report at the

beginning of the trial. They asserted that both documents

contained hearsay, and the report could not be authenticated.

The judge overruled the defendants' objections but limited the

purpose for which the jury could consider the report to the

defendants' states of mind. The judge gave the jury a limiting

instruction when the report was introduced during Cota's

testimony, as follows:

"this particular document . . . is admitted for a limited
purpose, okay? It is not admitted for the truth of the

6 Wicked contends that the arguments regarding the
admissibility of the e-mail message and report are waived
because (1) as to Woodforest, it did not move for a directed
verdict or judgment notwithstanding the verdict, and (2) as to
MLS, its motions for a directed verdict and judgment
notwithstanding the verdict did not raise the issue. While both
points have some validity, the parties have briefed the issue,
and we choose to address it.

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information contained in it. It is admitted for the
purpose of establishing what was known or what the mindset
was of [Woodforest], okay, at a particular time, the
information known to [Woodforest], not as to the truth of
what's contained in it."

When the report was discussed again during Cota's testimony the

next day, the judge reiterated, "I'll clarify and remind you,

this is not admitted for the truth of the matters contained in

it; it's admitted for the purpose of showing knowledge; that is

to say, what was known by the parties in connection with this

case." Finally, during his final instructions to the jury, the

judge again referred to the report and said "[the report] was

introduced for a limited purpose; it was not introduced for the

truth of the statements contained in the report. Instead, it

was admitted on the limited issue of what was known to

Woodforest Lighting at the particular time about the particular

product." We discern no error.

"We review a trial judge's evidentiary decisions under an

abuse of discretion standard." Laramie v. Philip Morris USA

Inc., 488 Mass. 399, 414 (2021). An abuse of discretion occurs

when the judge makes a clear error of judgment in weighing the

relevant factors such that the decision falls outside the range

of reasonable alternatives. See Quarterman v. Springfield, 91

Mass. App. Ct. 254, 260, cert. denied, 583 U.S. 1013 (2017).

We first turn to the defendants' hearsay argument. The

rule against hearsay prohibits the use of out-of-court

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statements as proof of the matter asserted. See Laramie, 488

Mass. at 415. However, not every out-of-court statement

violates the rule. Where, as here, the statement at issue is

offered to establish a state of mind, it is not admitted for the

truth of the matter asserted and therefore is not hearsay. In

this instance, the judge specifically admitted the report not as

proof that the lights were faulty but instead to demonstrate

that Woodforest was aware of the potential for failure. See

Pardo v. General Hosp. Corp., 446 Mass. 1, 18 (2006) ("[a]n

extrajudicial statement is not hearsay when offered to prove

that the person to whom it was addressed had notice or knowledge

of the contents of the statement" [citation omitted]). The

judge instructed the jury to this end when the report was

admitted, again when the report was brought up later in trial,

and during his final jury instructions. See id. at 19 (state of

mind evidence properly admitted, and limiting instructions

ensured that jury would not find evidence "necessarily true").

As to the e-mail message, contrary to the defendants'

assertion that it consisted of hearsay within hearsay, the

message was a statement from a party opponent, and its reference

to the properly-admitted report had no bearing on its

admissibility. See Hopkins v. Medeiros, 48 Mass. App. Ct. 600,

613 (2000) ("evidence of [defendant's] admission to sufficient

facts was admissible as an admission of a party opponent");

9
Mass. G. Evid. § 801(d)(2)(A) (2024) (statement not hearsay

where it "is offered against an opposing party and . . . was

made by the party").

Next, the defendants argue that neither the e-mail message

nor the report was properly authenticated and, consequently,

neither document should have been admitted at trial. As an

initial matter, it is true, as the defendants assert, that the

judge did not make any specific findings regarding authenticity.

However, the absence of such findings does not amount to

reversible error in the circumstances presented. As regards the

e-mail message, it was evident from the record that it

originated from a Woodforest employee with whom Cota had regular

contact -- via e-mail. After Cota received the message from

Dore, she called him and discussed the contents of the e-mail

message and report. She told him that he knowingly sold her a

defective product, and he responded that he would call Ni and

"see what we can do." Dore's statements to Cota acknowledging

the contents of the e-mail message served as "confirming

circumstances" that allowed the jury to find by a preponderance

of evidence that Dore authored it. Commonwealth v. Purdy, 459

Mass. 442, 450 (2011). Accordingly, the admission of the e-mail

message was not an abuse of discretion.

The report, however, stands on a different footing. No one

from ATS testified, and although Cota's testimony established

10
that she received the report from Dore, there was no evidence to

establish that the report was what it purported to be. That

said, even if it was error to admit the report, there was

sufficient additional properly-admitted evidence on which the

jury could find liability and the judge could find that the

defendants had violated c. 93A. Apart from the report, Cota's

testimony and additional e-mail messages between employees of

the parties established that the defendants sent light fixtures

that failed, attempted to replace the defective lights with ones

that were not compatible -— a fact which the defendants

ultimately acknowledged, did not send additional lights after

switching to a new vendor, and took no further corrective action

even after Ni suggested that a refund was appropriate. In light

of this evidence, we cannot conclude that the defendants were

materially prejudiced by the admission of the report, which we

again note was admitted for only a limited purpose.

Accordingly, any error relating to the admission of the report

does not warrant reversal. See generally Kace v. Liang, 472

Mass. 630, 646 (2015).

2. General Laws c. 93A. The defendants argue that the

judge erred in accepting the jury's advisory verdicts and

subsequently concluding that they engaged in unfair and

deceptive practices in violation of c. 93A. They contend that

their conduct amounted to no more than (or at best) an ordinary

11
breach of contract. They further claim that because the jury

found no breach of the implied warranty of merchantability, the

jury necessarily rejected the premise that Woodforest knowingly

sold a product that it knew or should have known was defective.

We conclude otherwise.

"Whether an act or practice violates c. 93A is based on the

totality of the circumstances." Connor v. Marriott Int'l, Inc.,

103 Mass. App. Ct. 828, 833 (2024). While a mere breach of

contract does not amount to a 93A violation, see H1 Lincoln,

Inc. v. South Washington St., LLC, 489 Mass. 1, 25 (2022), we

have said that practices "do not have to attain the antiheroic

proportions of immoral, unethical, oppressive, or unscrupulous

conduct, but need only be within any recognized or established

common law or statutory concept of unfairness." VMark Software,

Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 620 (1994).

In this case, the judge's findings that the defendants had

violated c. 93A were based on conduct distinct from any breach

of contract or related warranty issue. As the judge explained

in his posttrial memorandum and order, Woodforest knew or should

have known that the lights were defective, and, despite this

knowledge, continued to sell the products to Wicked. Then, its

"purported remedy," approved by MLS, was to "knowingly provide

alternative fixtures that would not fit and were not suitable

for the use to which they were to be put." In addition,

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although the judge did not specifically refer to Woodforest's

repeated and unfounded assurances that nothing was wrong with

the lights, this conduct also establishes a violation of c. 93A.

In sum, we agree with the judge that the facts provided a

sufficient basis for the award of c. 93A damages. See Baudanza

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

not substitute our judgment for that of trial judge who observed

witnesses).

For similar reasons, we reject the defendants' claim that

the evidence was insufficient to support the judge's findings

that their unfair and deceptive conduct rose to the level of a

willful and knowing violation, such that tripling the damages

was justified. "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

'wil[l]fully' 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."

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Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 183

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

Witter & Co., 445 Mass. 411, 420 (2005).

As previously noted, the judge did not err in crediting the

jury's advisory verdicts, which were based on evidence that

Woodforest (1) sold a product which it knew or should have known

was defective, (2) misrepresented the underlying problem with

the lights for months, and (3) under the direction of MLS,

attempted to replace that product with fixtures that they both

knew were not suitable. That conduct was sufficiently egregious

to warrant the imposition of multiple damages. 7

Where, as here, the evidence supports the judge's

conclusion that the defendants' behavior was intentional and

willful, we do not disturb his award of treble damages. See Hug

76 Mass. App. Ct. at 528 ("the trial judge, who is in the best

position to view the evidence and assess the credibility of the

7 The defendants' reliance on VMark, 37 Mass. App. Ct. at
623-624, in support of their positions that their efforts "to
address and remediate the product issues belie the notion that
their conduct required multiple damages," is misplaced. In
VMark, supra at 622, we concluded multiple damages were not
appropriate because the defendant "acted in good faith in its
dealings with [plaintiff], that it fully expected that [the
product] would function as represented, and that it was
persistently ready and willing, though ultimately unable, to
correct [its] shortcomings." By contrast, Woodforest's attempt
to remedy the problem did not reflect the type of good faith
present in VMark.

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witnesses, [has] discretion in determining the award"); Brewster

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

App. Ct. 582, 608 (2007) ("[s]o long as that [willful and

knowing] finding stands, an award of multiple damages

ineluctably flows from the plain language of the statute"). 8

3. Appellate attorney's fees. The plaintiffs have

requested and are entitled to an award of appellate attorney's

fees and costs. See G. L. c. 93A, § 11. They may submit a

petition for fees and costs with supporting materials, in

accordance with the procedure set forth in Fabre v. Walton, 441

Mass. 9, 10-11 (2004), within fourteen days of the date of this

decision. If the defendants choose to respond, they shall have

fourteen days within which to do so.

Judgment affirmed.

By the Court (Vuono,
Hershfang & Tan, JJ. 9),

Clerk

Entered: May 19, 2025.

8 Moreover, contrary to the defendants' assertion, the
absence of specific subsidiary findings with regard to the
c. 93A claims does not undermine the judge's conclusions. "A
judge need not make an express finding that a person wil[l]fully
or knowingly violated G. L. c. 93A, § 2, as long as the evidence
warrants a finding of either" (citation omitted). Anthony's
Pier Four, 411 Mass. at 475.
9 The panelists are listed in order of seniority.

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