KEHN FINE HOME BUILDING, INC. v. SHANMUGAM MUTHIAN MICHAEL KEHN, Third-Party

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-14

KEHN FINE HOME BUILDING, INC.

vs.

SHANMUGAM MUTHIAN; MICHAEL KEHN, third-party defendant.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2016, defendant Shanmugam Muthian hired the plaintiff,

Kehn Fine Home Building, Inc. (KFHB), to undertake a major

renovation project at his home in Marblehead. After the project

was substantially but not totally completed, Muthian refused to

pay KFHB for a large outstanding invoice and fired the company.

KFHB brought the current collection action alleging breach of

contract and related theories. Muthian counterclaimed and

brought a third-party action against Kehn's principal, Michael

Kehn (Kehn). After a nine-day jury-waived trial, a Superior

Court judge ruled largely in favor of KFHB and Kehn

(collectively, the Kehn parties), explaining his decision in

comprehensive findings and rulings. On July 12, 2021, two

judgments entered that had the net effect of requiring that

Muthian pay the Kehn parties approximately $100,000 in damages
(including prejudgment interest). On August 18, 2021, another

judgment entered awarding attorney's fees to Muthian.1 After the

judge denied motions for reconsideration filed by each side,2

Muthian appealed, and the Kehn parties filed a limited cross

1 On July 12, 2021, the judge entered final judgment on KFHB's
claims, which required Muthian to pay KFHB $111,397.44 in
damages ($90,544.53 in contractual damages, which included
prejudgment interest from the date of the breach until the
judgment at the contractual rate of eighteen percent per year,
and $20,852.91 in quantum meruit damages, which included
prejudgment interest from the date of the complaint until the
judgment at the statutory rate of twelve percent per year).
That same day, the judge entered a separate final judgment on
Muthian's counterclaims and third-party claims that required
KFHB to pay $11,376.45 in damages (including prejudgment
interest), with Kehn jointly and severally liable to pay
$2,687.74 of those damages (including prejudgment interest). A
third final judgment entered on August 18, 2021, requiring that
the Kehn parties pay Muthian $2,500 in attorney's fees (strictly
speaking, the third judgment, is phrased as awarding attorney's
fees to the "plaintiff," although from the context it appears
the judge intended the award in favor of Muthian, who is the
plaintiff-in-counterclaim/third-party claim). The parties make
no argument about the third judgment on appeal. The issuance of
three separate judgments added unnecessary confusion to this
case. See Pantazis v. Mack Trucks, Inc., 92 Mass. App. Ct. 477,
478 n.4 (2017) ("We repeat our admonition that, unless [Mass. R.
Civ. P. 54 (b)] is expressly invoked, there should never be more
than one document identified as a final judgment in a civil
case").

2 On July 30, 2021, each side filed a motion for reconsideration.
The judge denied them on August 10, 2021. Meanwhile, Muthian
had served, but not yet filed, what was styled as an amended
version of his motion for reconsideration. The day after the
initial version was denied, Muthian filed the amended version.
Treating the amended version as a "second" motion for
reconsideration, the judge denied it on August 20, 2021.

2
appeal.3 We affirm the liability finding on KFHB's breach of

contract claim, but conclude that the damages award on that

claim was incorrect in one respect. We also reverse so much of

the judgment as entered in favor of KFHB on its quantum meruit

claim. We otherwise affirm.

A full recounting of the facts is unnecessary, and we refer

the reader to the extraordinarily detailed factual findings that

the trial judge issued. Those findings exhibit the thoughtful,

careful, and balanced approach that the judge took with respect

to the testimony he heard from the at least seventeen witnesses.

On appeal, Muthian does not challenge the judge's subsidiary

findings as clearly erroneous (with the limited exceptions

discussed below), and, in any event, those findings appear well

supported by the trial record. Nor is the thrust of Muthian's

argument that the judge applied the wrong legal principles.

Rather, he mainly argues that the judge misapplied the correct

law to the facts found. For the most part, we disagree.

1. Contract claims. The judge found that Muthian

materially breached his contract with KFHB in January of 2018

when he refused to pay more than a nominal amount of what KFHB

was owed, and it is self-evident that Muthian's subsequent

3 Notwithstanding some ambiguities in the respective notices of
appeal, we treat the appeals as encompassing all three judgments
and the two orders denying the parties' motions for
reconsideration described in notes 1 and 2, supra.

3
firing of KFHB from the job also was a material breach.4 That

conclusion is well supported and correct. We discern no error

in the judge's rejection of Muthian's argument that his actions

were justified by a prior material breach by KFHB. To be sure,

the project at that point had not been completed within the

nine-month time frame set forth in the contract, but for reasons

the judge thoroughly explained, the contract read as a whole

does not support Muthian's view that the nine-month provision of

the contract established an unforgiving drop dead date.5 In

addition, the judge found that KFHB bore little responsibility

for causing delay,6 and that, overall, Kehn was "exceptionally

4 To be sure, KFHB made mistakes in invoicing. After making
certain adjustments to account for mistakes that Muthian had
pointed out, KFHB on January 16, 2018, sent Muthian an invoice
for over $81,000 for the then completed work. As the judge
found, the adjusted invoice was very close to the amount that
Muthian eventually was determined to owe on the contract after
the nine-day trial. However, in response to KFHB's invoice,
Muthian offered to pay at most only $15,000, and even that offer
was subject to KFHB's agreeing to certain new conditions such as
forbearance from filing a mechanic's lien. KFHB still kept
working to obtain an occupancy permit for Muthian and as soon as
it succeeded in that task, Muthian fired KFHB from the job.

5 Muthian's argument is based on his taking out of context
certain isolated contractual language that on its face speaks of
the nine-month time frame in absolutist terms. However, as the
judge pointed out, both directly before and after that language
is other language that absolves KFHB of delays outside its
control.

6 The judge found that the largest sources of delay were outside
KFHB's control and responsibility. For example, the project
unexpectedly needed approval from two local zoning bodies

4
patient" and accommodating with his exacting client. Those

findings are well supported by the trial evidence.

Granted, some problems remained at the time that Muthian

fired KFHB or arose thereafter. However, the judge found that

KFHB would have fixed these issues had it not been fired.7

Muthian argues that KFHB is precluded from pursuing its

contractual remedies because of the principle that a

construction "contractor cannot recover on the contract itself

without showing complete and strict performance of all its

terms." Andre v. Maguire, 305 Mass. 515, 516 (1940). As the

Supreme Judicial Court recently emphasized, the "need for strict

compliance with construction law contracts [is] to ensure that

the construction itself is done safely and correctly according

to design specifications." G4S Tech. LLC v. Massachusetts Tech.

Park Corp., 479 Mass. 721, 731 (2018) (G4S Tech.). Although the

court in G4S Tech. reaffirmed that a contractor may not sue on

the contract unless it can demonstrate complete and strict

compliance, the court emphasized that this principle is limited

to "breaches of the actual design and construction of the

because of a setback encroachment. Then, once it became clear
that those approvals were needed, Muthian took the opportunity
to significantly change his plans, which added layers of
complexity to the project and additional delays.

7 Two potential unexcused exceptions are discussed below in some
detail.

5
project." Id. All other alleged breaches -– including

allegedly delayed construction -- are subject to ordinary

contract principles, including a "materiality standard." Id. at

733 & n.16.

In the case before us, the "complete and strict

performance" principle applies at most to any actual

construction work that did not meet plans, specifications, or

standards set forth in the contract. See G4S Tech., 479 Mass.

at 732 ("We clarify today that the complete and strict

performance requirements in construction contracts apply only to

the design and construction work itself"). But as we already

have noted, to the extent that Muthian demonstrated that KFHB

left behind unaddressed problems that left the project falling

short of what the contract required, this was because Muthian

unjustifiably fired KFHB before it had the opportunity to fix

such issues. We therefore agree with KFHB that the principle

reaffirmed in G4S Tech. is inapplicable in this context. Put

differently, it cannot be that a client unilaterally gets to bar

his or her contractor from suing on a construction contract by -

- without adequate justification -- preventing the contractor

from completely and strictly finishing the contract.

We pause to dive into the details regarding two specific

disputes that played an outsized role in the conflict between

the parties. The first had to do with the finishing of the wood

6
floors. Against Kehn's forceful warnings, Muthian insisted that

the floors be finished using an unusual three-step manner in

which a water-based dye would first be applied, followed by an

oil-based stain, and then coats of water-based polyurethane.

The uneven results proved the wisdom of Kehn's advice.

Nevertheless, having agreed to use Muthian's preferred method

(against his own better judgment), Kehn willingly had the floors

redone a second time. Problems remained. Kehn still was

willing to refinish the floors a third time, but only if Muthian

agreed that he could use his more traditional tried and true

two-step means of doing so. Otherwise, Muthian would have to

hire his own floor contractor to perform his chosen method.

Muthian chose to pursue the latter route, although notably, once

he fired KFHB, he ended up having the floor redone using the

traditional method. On appeal, Muthian argues that the failure

of KFHB to complete the floor work stands as a bar to KFHB suing

on the contract, and that, in any event, the judge erred by not

deducting the cost of finishing the floors a third time from

what KFHB was owed. Given that KFHB already had finished the

floors twice notwithstanding that the problems were due to

Muthian's insistence on using his unproven methods against the

advice of Kehn, we discern no error in the judge's handling of

the floor issues.

7
The second detailed dispute that merits some discussion had

to do with the energy efficiency of the heating, ventilation,

and air conditioning (HVAC) system that was installed. The

relevant subcontractor, whose testimony Muthian did not include

in the record appendices, claimed that the installed system in

fact could perform at the efficiency level that Muthian desired

even though it was not nominally rated at that level. The

judge's ruling that any shortcoming in the system did not

constitute a material breach that justified KFHB's firing is

well founded, particularly given that the energy efficiency of

the system was never set forth as a required specification in

the written contract. Where it is not clear how the dispute

about the energy efficiency rating of the system would have

played out had KFHB not been fired, we discern no error in the

judge's declining to treat this issue as a bar to KFHB's suing

on the contract.8 We additionally note that even though the

judge awarded damages based on a violation of an oral agreement

to install the higher efficiency equipment, the judge recognized

8 It bears noting that even if KFHB had been barred from suing on
the contract, it could have pursued its damages on a theory of
quasi contract. See G4S Tech., 479 Mass. at 735. Moreover,
"[w]hile a party does not recover on the contract itself under
quantum meruit, a court may look to the terms of the underlying
contract to help determine appropriate recovery under quantum
meruit." Liss v. Studeny, 450 Mass. 473, 480 (2008). Thus,
even if Muthian were correct that KFHB was barred from suing on
the contract, this would appear to have limited consequences.

8
the possibility that the HVAC system in fact might be able to

achieve the desired efficiency level.

2. Computation of contractual damages. KFHB was not

looking to be paid on the contract for any work it had not yet

performed. Hence, in calculating what KFHB was owed, the judge

ruled that Muthian was not entitled to a setoff for what he paid

a different contractor to complete the job. At the same time,

the judge ruled that Muthian was entitled to work needed to

correct problems that remained after KFHB was fired.9 Drawing a

line between completion work and correction work was not easy in

practice, and it was complicated by the fact that Muthian

altered some aspects of the project even after KFHB was no

longer in the picture. In addition, difficult accounting issues

arose with regard to various items that KFHB was slated to

purchase under the contract -- subject to specified allowances -

- but that Muthian ended up purchasing himself.

The parties, and Muthian in particular, did little to

assist the judge in sorting out these computational issues.

Instead, as the judge observed in denying Muthian's second

motion for reconsideration,

"Muthian presented his damages argument in broad strokes,
in effect asking to be awarded every dollar he spent on the
project after KFHB's services were terminated (even if the

9 For the reasons the judge explained, Muthian's argument that he
was entitled to both completion work and corrective work is not
persuasive.

9
work was done two years later), and failing to address at
all what money, if any, KFHB was owed for work that it had
done but for which it had yet to be paid."

As a result, the judge was, in his own words, "left largely on

[his] own to try to fairly and sensibly resolve a myriad of

damages issues and disputes about items large and

inconsequentially small based on the applicable legal principles

and [his] findings of fact." This required him to "put in

inordinate time and energy to sort through complicated damages

issues involving appropriate credits and offsets having to do

with countless aspects of the project and to issue extensive and

comprehensive findings and rulings." Having failed to raise the

issues in a reasonable and timely manner at trial, Muthian

instead put together in his postjudgment motions a "post-hoc

litany of complaints about particular findings and damages

determinations." The judge rejected all of Muthian's arguments,

and -- having finally run out of patience -– he

"decline[d] . . . to address them seriatim."

As the judge pointed out, Muthian failed to press several

of his computational arguments until his first, or even second,

motion for reconsideration. For example, in his first motion

for reconsideration, Muthian requested that he receive credits

for his purchase of wood flooring and of light switches. In

denying that motion, the judge observed that Muthian had not

previously specifically asked that adjustments be made on

10
account of those purchases. Muthian has not demonstrated that

this observation was wrong. In fact, he did not put before us

the record material that would be needed to establish that he

had timely asserted these issues, such as a transcript of his

closing argument and a copy of his proposed findings and

rulings.10 Although we have no duty to examine parts of the

appellate record not included in the record appendices, we have

confirmed that Muthian never included the cost of purchasing the

flooring or light switches among the specified credits he

claimed in his proposed findings, which we retrieved from the

electronic docket of the Superior Court.11 Under these

circumstances, the judge did not abuse his discretion in deeming

such arguments untimely and in denying Muthian's motions for

reconsideration on that basis. See generally Audubon Hill S.

Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc.,

82 Mass. App. Ct. 461, 470 (2012) (denial of motion for

reconsideration reviewed only for abuse of discretion).

10In his reply brief, Muthian has identified record citations to
support his argument that he purchased various items for which
additional adjustments should have been made. However, for
present purposes, the issue is not whether there existed record
support for Muthian's arguments, but instead whether he timely
raised such arguments with the judge.

11Similarly, these items were not listed in the chalk that
Muthian produced at trial to summarize the credits he claimed.

11
Muthian did raise three arguments as to certain specific

damages in a timely manner, and we are unpersuaded by two of

them. His argument that he somehow was charged twice for KFHB's

installation of the windows is simply unfounded. Similarly,

Muthian has not demonstrated error in the judge's declining to

award him more than the $2,004 credit that KFHB provided him for

his forgoing plans to build a master bath deck.12

Muthian's remaining preserved computational argument has to

do with how much credit was due for two pieces of ventilation

equipment. KFHB gave Muthian credit for the cost of one of the

"ERV" units ($1,500) but not the other. Muthian argued in his

proposed findings and one of his motions for reconsideration

that he was entitled to credit for both. The judge's reason for

rejecting this argument is not clear. For its part, KFHB argues

that providing Muthian only a partial credit can be justified

because the labor costs of installing the chosen equipment,

12At trial, Muthian argued, based on estimates he provided from
other contractors, that the forgone work of building the master
bath deck should be valued much higher. On appeal, he does not
argue that the judge had to credit such testimony; instead, he
argues that the judge erred by providing him credit for only
$2,004 even though the judge found the deck work to be worth
$3,000 (leaving a shortfall of $996). A close reading of the
judge's findings together with the trial record reveals that the
judge intended to accept the amount of the credit that KFHB
already had provided Muthian for the forgone deck work, which an
exhibit confirms was $2,004. The judge's passing reference to
KFHB's having provided Muthian a $3,000 credit appears to be a
mere transcription error, not an independent assessment of what
the work was worth.

12
pursuant to Muthian's particular preferences, ended up being far

greater than expected. While this argument is not without some

appeal, it ignores the fact that -– contrary to KFHB's

contention at oral argument -- the contract included a general

provision capping installation costs at ten percent with respect

to the calculation of allowances that the contract provided.

Because KFHB has not offered a sufficient justification for why

Muthian should not receive credit for the full amount ($3,000,

less a ten percent amount for installation costs), we conclude

that Muthian is entitled to an additional $1,200 credit, plus a

pro rata share of the prejudgment interest.13

One additional computational argument that Muthian touches

on in a footnote warrants mention. But see Commonwealth v.

Vick, 454 Mass. 418, 433 n.15 (2009) ("arguments relegated to a

footnote do not rise to the level of appellate argument"). The

issue has to do with the baseline figure the judge should have

used with regard to what KFHB was owed under the contract before

any adjustments were then made to account for corrective work

that needed to be done or credits for which Muthian was due.

The judge accepted the invoiced figures that KFHB was claiming

but then started with a baseline that was $7,392.31 higher than

13Interest on $1,200 at the contractual rate of eighteen percent
per year (1.5 percent per month) for the period of time from the
breach of contract through the entry of judgment (1,244 days)
comes to $735.67, bringing the credit due Muthian to $1,935.67.

13
that. The extra increment appears to have related to certain

additional charges included in change orders. The judge

explained that he added this additional sum to what KFHB was

claiming because he assumed that the failure to include this

additional increment was "an oversight on the part of Kehn."

Even though Muthian did not challenge the judge's assumption at

trial or in either motion for reconsideration, he now argues

that that additional sum was unjustified because the invoiced

figures KFHB had put forward already took into account the

relevant change orders. On this basis, Muthian now claims that

the judge started with a baseline that was approximately $7,400

too high. Passing over whether Muthian has preserved this

issue, we are unpersuaded that he has demonstrated clear error

in the judge's calculation of the baseline.

In their cross appeal, the Kehn parties argue that the

judge made seven specific computational errors in Muthian's

favor. For example, KFHB argues that it should not be docked

for the value of work spent by Muthian's replacement contractor

to reassemble a so-called "wet bar," because even if such work

was necessary to correct the faulty assembly of the wet bar,

this was not work for which KFHB was responsible under the

contract in the first place. As with many of Muthian's

arguments, it appears that KFHB's arguments were not timely

raised at trial (or at least that KFHB has not demonstrated that

14
they were by providing us the relevant record materials). In

fact, KFHB appears not to have raised any of its specific

arguments until its own motion for reconsideration, and some of

such arguments (such as certain costs with respect to the washer

and dryer) were not raised until this appeal. Therefore, the

judge did not abuse his discretion in denying KFHB's motion for

reconsideration.14

3. Quantum meruit. Muthian also challenges the award of

quantum meruit damages for certain work that Kehn performed that

was not contemplated by the contract. That work had to do with

bringing a staircase up to code and enclosing a porch. At the

point this additional work was done, Kehn did not seek to

process change orders that would have required Muthian to make

additional payments under the contract. Rather, Kehn then was

willing to perform the work without receiving additional

compensation. For example, with respect to the staircase work,

Kehn explained at trial that: "I didn't charge [Muthian] at

14There is a threshold question whether the cross appeal was
timely. It was not filed within fourteen days of Muthian's
appeal, or within thirty days of entry of the judgments being
appealed. See Mass. R. A. P. 4 (a) (1), as appearing in 481
Mass. 1606 (2019). Accordingly, the timeliness of the cross
appeal depends on whether the thirty-day period to appeal the
July 12, 2021 judgments was tolled not just by the parties'
initial motions for reconsideration, but also by Muthian's
second such motion. Because we conclude that the arguments
raised in KFHB's motion for reconsideration (or later) were not
timely raised in any event, we need not resolve the timeliness
of the cross appeal.

15
that time for [the staircase] because I just felt like it was

something that I felt proud of to do to this house. . . . I

just wanted to do the right thing." However, once Muthian

refused to pay KFHB under the contract and forced KFHB to bring

suit to collect what it was owed, Kehn had a change of heart.

Specifically, he sought compensation for the additional work

under a theory of quasi contract.

Based on his evaluation of the equities at issue, the judge

awarded KFHB $15,000 for the extra work -- less than one-half of

what Kehn claimed the work was worth -- an award that, together

with prejudgment interest, totaled $20,852.91. We are not

unsympathetic to the judge's perspective about the equities, but

based on his specific findings, we agree with Muthian that the

judge was not free to award quantum meruit damages for the work

that KFHB performed for free.15 One of the required elements of

15To be clear, we do not accept Muthian's separate argument that
KFHB cannot recover in quantum meruit on the grounds that its
complaint sounded only in unjust enrichment. For one thing,
while an argument can be made that these two quasi contract
theories are conceptually distinct, many of the cases treat them
as interchangeable. See, e.g., Liss, 450 Mass. at 479–480
(explaining that "[t]he underlying basis for awarding quantum
meruit damages in a quasi-contract case is unjust enrichment of
one party and unjust detriment to the other party" [citation
omitted]). For another, the rules that govern pleadings simply
are not as hypertechnical and strict as Muthian claims. Cf.
Bullock v. Zeiders, 12 Mass. App. Ct. 634, 637-638 (1981)
(motion to amend pleadings to conform to evidence may be made
even after judgment).

16
quantum meruit is that "the claimant reasonably expected

compensation from the defendant[]." Finard & Co., LLC v. Sitt

Asset Mgt., 79 Mass. App. Ct. 226, 229 (2011). The judge

himself expressly recognized that this element was not

satisfied. As the cases have long recognized, someone who has

rendered services or transferred property with a donative intent

"cannot transpose an executed gratuity into a legal liability to

pay." Ramseyer v. Conlon, 303 Mass. 270, 274 (1939) (party who

did not intend to charge plaintiff interest on her securities

until plaintiff demanded an accounting could not recover that

interest).16 Accordingly, Muthian is entitled to a reduction of

$20,852.91 in the judgment against him.

4. Intentional or negligent misrepresentation. Muthian

claimed that Kehn had misrepresented the size of his crew, and

that this misrepresentation induced him to hire KFHB to his

detriment. As to this issue, Muthian claims that the judge's

findings are clearly erroneous. He argues in essence that the

judge was required to accept his forceful testimony on these

points, because it was not directly contradicted by Kehn. That

is simply not a correct statement of law. See, e.g.,

16KFHB seeks to save its quantum meruit award by suggesting that
its willingness to perform the additional work without
additional compensation was conditioned on Muthian's continuing
to pay what was due under the contract. While that argument has
some appeal, the judge made no such finding.

17
Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 328 n.10 (2015)

("The absence of a conflict in the evidence does not mean that

the motion judge is required to credit the testimony").

Moreover, as the judge pointed out, the fact that the extensive

written communications between the parties throughout the

project included no complaints by Muthian about the size of

KFHB's crew undercuts his claims on this point. In light of the

fact that the judge was free not to credit Muthian's factual

testimony regarding Kehn's representations about the size of the

KFHB crew, there is no merit to Muthian's argument that the

judge erred in rejecting his fraudulent inducement claims.

5. G. L. c. 142A and G. L. c. 93A violations. In addition

to arguing that KFHB violated the contract and improperly

induced him to enter the contract, Muthian alleged that the Kehn

parties violated both G. L. c. 142A and G. L. c. 93A. In fact,

the judge ruled in Muthian's favor with respect to these claims

insofar as Muthian alleged two minor building code violations.

For these claims, the judge awarded $2,687.74 total in damages

(including prejudgment interest), plus $2,500 in attorney's

fees. Having found no intentionality in the violations, the

judge did not err in declining to award multiple damages. See

Hyannis Anglers Club, Inc. v. Harris Warren Commercial Kitchens,

LLC, 91 Mass. App. Ct. 555, 560-561 (2017) (multiple damages

warranted only for conduct that constitutes a deliberate

18
violation of c. 93A). To the extent that Muthian now contends

that the judge erred by not finding additional violations of

c. 142A (and derivatively of c. 93A), his argument fails on the

facts. Similarly, to the extent that Muthian claims that the

Kehn parties violated c. 93A in other ways, his arguments also

fail on the facts.17 For example, the judge's findings that the

Kehn parties engaged in no untoward conduct to attain an unfair

advantage over Muthian are well founded. While it is true that

Kehn on occasion made some accounting errors, the judge found

that these were unintentional and quickly corrected. For

example, even Muthian testified that he thought he "caught

[Kehn] off guard" with respect to the accounting error and that

"[Kehn] corrected it once it was brought to his attention."

6. Ex parte contact with witness. Finally, we address the

judge's relationship and ex parte meeting with a witness,

Richard Baldacci. Baldacci had been the building inspector for

Marblehead during the relevant period. Baldacci's testimony, as

a fact witness, primarily went to the parties' efforts to obtain

occupancy permits for the renovated home. He appeared on both

parties' pretrial witness lists. The judge knew Baldacci

personally, a fact he raised with counsel prior to the

17Because Muthian has not prevailed in this appeal with respect
to his statutory claims, we deny his request for appellate
attorney's fees. See Marengi v. 6 Forest Rd. LLC, 491 Mass. 19,
31-32 (2022).

19
commencement of trial. The judge even noted that he would be

inclined to credit Baldacci's testimony. He asked both parties

whether they had a problem with his sitting on the case, and

neither party requested that the judge recuse himself. On the

day that Baldacci testified, the judge in open court invited him

to come back to his chambers during a break in the trial because

he would "just like to say hello to [him] back here." Again,

neither side objected. Nevertheless, Muthian now argues that

the judge's meeting with Baldacci ex parte was so untoward that

perhaps a new trial may be required.

Without endorsing the judge's decision to meet privately

with a witness during the trial, we are unpersuaded that this

action constitutes reversible error. First of all, Muthian has

provided us no reason to question the judge's statement that he

was meeting with the witness merely to "say hello" or otherwise

catch up, not to discuss the case. Second, by his silence after

previously indicating that the relationship between the judge

and Baldacci did not present a problem, Muthian waived any

objection to the contact. See Matter of Moore, 449 Mass. 1009,

1010 n.1 (2007) (issue of recusal waived where not raised until

appellate briefs). Third, Muthian has not come close to

demonstrating how he was prejudiced by the meeting. Baldacci, a

government official, was a fact witness who was not aligned with

either side. While his testimony was not unimportant, it was

20
hardly critical to the Kehn parties' prevailing.18 Muthian has

not articulated how the judge's meeting with Baldacci had any

appreciable impact on the judge's resolution of the case. See

Perez v. Boston Hous. Auth., 379 Mass. 703, 741 (1980) (where ex

parte communications "unthinking rather than venal," and did not

"affect[] the substance of the proceedings one way or the

other," reversal not required).

Conclusion. So much of the July 12, 2021 judgment as

entered in favor of KFHB on count two is reversed; so much of

that judgment as awarded damages on count one is vacated, and

the judgment is revised to order Muthian to pay KFHB $88,608.86

in contractual damages (including prejudgment interest through

the date of the original judgment);19 in all other respects, that

judgment is affirmed. As to the August 20, 2021 order denying

Muthian's second motion to reconsider, so much of the order as

pertains to the request for additional credit for the "ERV"

units is reversed; the order is otherwise affirmed. The July

18Muthian places great emphasis on appeal, as he did at trial,
on Baldacci's granting, and then revoking, a temporary occupancy
permit. That focus appears misplaced. As the judge expressly
found, the revocation of the temporary occupancy permit "was
without practical consequence because the flooring situation
kept Muthian from moving in at that time."

19This figure is the original amount awarded under KFHB's
contract claim (including prejudgment interest), less the
$1,935.67 adjustment Muthian is due with respect to the ERV
credit. See note 13, supra.

21
12, 2021 judgment entered in favor of Muthian, the August 18,

2021 judgment awarding attorney's fees, and the August 10, 2021

order denying the parties' motions for reconsideration are

affirmed.

So ordered.

By the Court (Milkey,
Massing & Henry, JJ.20),

Clerk

Entered: May 15, 2023.

20 The panelists are listed in order of seniority.

22