Bruno v. Alliance Rental Group, LLC

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21-P-985 Appeals Court

MICHAEL BRUNO & another1 vs. ALLIANCE RENTAL GROUP, LLC.

No. 21-P-985.

Middlesex. September 12, 2022. – August 29, 2023.

Present: Desmond, Sacks, & D'Angelo, JJ.

Mechanic's Lien. Statute, Construction. Consumer Protection
Act, Unfair act or practice, Damages, Attorney's fees.
Damages, Consumer protection case, Attorney's fees. Words,
"Improvement of real property," "To become due."

Civil action commenced in the Superior Court Department on
May 23, 2019.

The case was heard by Douglas H. Wilkins, J.

David H. Travers (Mikaela A. Rice also present) for the
defendant.
Joshua M. Looney for Michael Bruno.
Christian W. Habersaat for Great Midwest Insurance Company.

D'ANGELO, J. This dispute arises from the rental of heavy

machinery from a subcontractor, Alliance Rental Group, LLC

(Alliance), to a contractor, Ivester Construction Corp.

1 Great Midwest Insurance Company, as surety to the lien
bonds executed by Michael Bruno.
2

(Ivester), working on property in North Reading (property) owned

by Michael Bruno. Ivester failed to pay Alliance any of the

rental fees. Alliance filed two mechanic's liens on the

property, seeking $697,479.06. See G. L. c. 254, § 4.

Following a bench trial, a Superior Court judge awarded Alliance

$180,000 for the reasonable rental value of the equipment and

awarded Bruno $100,182 for Alliance's violation of G. L. c. 93A.

In this appeal we consider, among other things, whether

G. L. c. 254, § 4, gives a judge the authority to reduce a lien

amount for periods where a subcontractor's rental equipment is

on the work site, but not being used for extended periods of

time. We conclude that it does not. Accordingly, we amend in

part and affirm in part the judgment entered in the Superior

Court.

Background. We take our facts from the findings of fact of

the trial judge and the uncontroverted facts set forth in the

exhibits.

1. The contracts. On March 27, 2013, Bruno and Ivester

entered into a subdivision contract (original contract) for

Ivester to perform subdivision improvements on the property

(project).2 In exchange, Bruno agreed to pay Ivester $300,000

2 The original contract covered work on a road in the
subdivision and "Lots 1 through 11" located at 6, 8, 9, 10, 11,
12, 14, 15, 16, 17, and 19 Charles Street.
3

pursuant to a distribution schedule, and to transfer lots 6 and

7 to Ivester upon completion of the work under the original

contract. To complete the work, Ivester entered into rental

agreements with Alliance for the use of an excavator and loader.

The rental rate for each machine was $6,000 per month, plus

6.25% sales tax and any repair costs. There was no end date

specified in the rental agreements. The rental agreement for

the excavator had a "start date" of January 1, 2015, and the

start date of the rental agreement for the loader began one year

later, on January 1, 2016. The equipment was last used to

perform work under the original contract on October 4, 2018,

although the excavator remained on the property until March 18,

2019, and the loader remained on the property until May 18,

2019. From the start of the rental agreements through those

dates, Ivester did not pay any money to Alliance for the

rentals. The amount Alliance had invoiced Ivester for the

loader was $311,287.91 -- the total of $261,935 in rental

charges and $49,352.91 in repair charges. The invoice amount

for the excavator was $386,191.15 -- the total of $323,820 in

rental charges and $62,371.15 in repair charges. In total, the

invoices stated a balance of $697,479.06 owed by Ivester to

Alliance.

2. Delays in use of the equipment. There were various

periods of "down time" during the project in which construction
4

was paused and the equipment was not used, "including a one-year

period waiting for a street permit, a one-year period waiting

for an electrical permit and a period waiting for broken drains

to be fixed." Additionally, section 350-23-B of the North

Reading subdivision regulations prohibited subdivision

construction between December 1 and March 15 of each year. Both

pieces of equipment were also removed from the property in order

to complete repairs -- the excavator twice and the loader once.

Although required by the rental agreements between Ivester and

Alliance, Ivester did not maintain daily logs to track the use

of the equipment during the construction, so there was no

documentary evidence of how and when the equipment was used.

The judge determined, based on industry practice, the parties'

expectations and estimates, and the amount of down time, that

the equipment was furnished for improvements "for a total period

of one and one quarter years each," i.e., fifteen months each.

The trial judge concluded that "[g]iven the inevitability of

some degree of 'down time' on any project, it is likely that

this estimate includes short periods of inactivity during which

it would not be practical to return and re-lease the equipment."

3. Relationship between Alliance's and Ivester's

principals. Kevin Matthews was the sole manager and member of
5

Alliance. Matthews had known Kenneth Ivester,3 the owner and

principal of Ivester, for about fifteen years prior to trial.

Prior to entering into the rental agreements, Matthews had made

two personal loans to Kenneth, the first for $150,000, and the

second for $250,000. These loans were based on Matthews's

understanding that Ivester "would get two lots at the completion

of the [p]roject" and were funded using Matthews's personal home

equity line of credit.

4. Procedural history. To begin the process of

establishing mechanic's liens, Alliance recorded four notices of

contract. The first two, recorded on January 31, 2019, and

March 1, 2019, were eventually dissolved by a Superior Court

judge as untimely and incomplete, and they are not at issue in

this appeal. The subsequent two notices of contract were

recorded on March 27, 2019, regarding the excavator, and on May

3, 2019, regarding the loader, and corresponding statements of

account were recorded within the time required by G. L. c. 254,

§ 8. On May 23, 2019, Bruno brought this action against

Alliance pursuant to G. L. c. 254, § 15A, for summary discharge

of the mechanic's liens. On August 10, 2020, Bruno amended his

We hereafter refer to Kenneth by his first name to avoid
3

confusion.
6

complaint to add a count for violation of G. L. c. 93A.4

Alliance filed a counterclaim to enforce its mechanic's lien

rights. The case proceeded to a bench trial on March 16 and 17,

2021, where the judge ultimately concluded Alliance was owed a

total of $180,000 on the two liens, not the $697,479.06 that

Alliance claimed. The judge based this amount on the fair

market value of the actual use of each piece of equipment, i.e.,

$6,000 per month for fifteen months each. The judge also found

for Bruno on his c. 93A claim, and on August 6, 2021, he awarded

Bruno $100,182 in c. 93A damages, comprised of Bruno's

attorney's fees and expenses in defending against what the judge

found was "a scheme by Alliance, Matthews and Ivester to extract

money from Bruno [through the mechanic's lien process] well

beyond any commercially justifiable amount." This brought

Alliance's net recovery to $79,818. Both parties appealed.5

Discussion. "In reviewing a matter wherein the trial judge

was the finder or fact, [t]he findings of fact . . . are

accepted unless they are clearly erroneous[] [and] [w]e review

the judge's legal conclusions de novo" (quotation and citation

4 Bruno also amended the complaint to add a count alleging
abuse of process, but he waived that claim at trial.

5 After oral argument, this court issued a memorandum and
order remanding the case to the judge to make additional
findings of fact. See Bruno v. Alliance Rental Group, LLC, 101
Mass. App. Ct. 1124 (2022). The judge made the requested
findings.
7

omitted). Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014).

"A finding is 'clearly erroneous' when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed." Herson v. New Boston Garden Corp.,

40 Mass. App. Ct. 779, 789 (1996), quoting Freyermuth v. Lutfy,

376 Mass. 612, 615 (1978).

Both parties contest the amount of $180,000 that the judge

awarded to Alliance on its counterclaim to enforce the liens.

Alliance argues that it should be awarded the full $697,479.06

owed on the statements of account, while Bruno argues Alliance

should not be awarded any amount of money because the liens are

invalid. In considering these arguments we must address two

issues: first, whether G. L. c. 254, § 4, authorizes a judge to

reduce a lien amount for periods where a subcontractor's rental

equipment is on the work site but not being used for extended

periods of time; and second, whether the liens are valid. We

must also address whether the judge properly concluded that

Alliance violated G. L. c. 93A.

1. Reduction of the lien amount. a. Use of the rental

equipment. The trial judge reduced the amount of Alliance's

liens from $697,479.06 to $180,000 to reflect the amount of time

that he determined Alliance's rental equipment was furnished for

use for work on Ivester's original contract with Bruno. Under
8

G. L. c. 254, § 4, a person (here, Alliance) who "under a

written contract with a contractor" "furnishes rental equipment

. . . in the . . . improvement of real property" may record a

notice of contract and obtain a lien on the real property being

improved (i.e., the "real property . . . owned by the party who

entered into the original contract," here, Bruno) to secure

payment for the rental equipment. See generally Graycor Constr.

Co. v. Pacific Theatres Exhibition Corp., 490 Mass. 636, 640-642

(2022).

Alliance argues that it furnished rental equipment to the

project for the entire duration of the time the rental

agreements until the equipment was removed from the site, i.e.,

from January 1, 2015, until March 18, 2019, for the excavator,

and from January 1, 2016, to May 18, 2019, for the loader.

Bruno argues that Alliance furnished rental equipment only for

those periods of time that the equipment was used to perform

work on the project, and that Alliance last furnished rental

equipment to the project on October 4, 2018, the date that the

equipment was last used to perform work on the project.

Several States have statutes that specifically limit

mechanic's liens for rental equipment to periods of actual use.

See, e.g., Haw. Rev. Stat. § 507-41; N.D. Cent. Code § 35-27-

01(4); S.C. Code Ann. § 29-5-10(a). See also, e.g., Iowa Code

§ 572.2(2) (lien may cover reasonable periods of nonuse if taken
9

into account in rental agreement); Mont. Code Ann. § 71-3-

524(3)(a) (same); Neb. Rev. Stat. § 52-134(3)(a) (same); Ohio

Rev. Code Ann. § 1311.12(C)(1) (same); Tenn. Code Ann. § 66-11-

102(g)(1) (same). However, where the Massachusetts Legislature

has not included such limiting language in G. L. c. 254, § 2, we

should not read it into the statute. "A mechanic's lien is not

a common-law right but a creature of statute, which 'compels

strict compliance in order to obtain relief.'" National Lumber

Co. v. Lombardi, 64 Mass. App. Ct. 490, 492-493 (2005), quoting

Mullen Lumber Co. v. Lore, 404 Mass. 750, 752 (1989).

Bruno urges us to interpret the statute to mean that

equipment is only "furnishe[d] . . . in the . . . improvement of

real property," G. L. c. 254, § 4, during periods of actual use,

thus limiting mechanic's liens to that time -- or at least that

equipment is not so furnished during extended periods of nonuse.

Bruno primarily relies on two cases to support this argument:

Mammoet USA, Inc. v. Entergy Nuclear Generation Co., 64 Mass.

App. Ct. 37 (2005), and John Marini Mgt. Co. v. Butler, 70 Mass.

App. Ct. 142 (2007). However, there are important distinctions

between those cases and the case at hand.

In Mammoet, 64 Mass. App. Ct. at 37, the issue before the

court was whether a subcontractor's transportation and delivery

of a backup transformer, which was stored on the property only

for possible future use and was never actually used, constituted
10

an "improvement of real property" pursuant to G. L. c. 254, § 4.

The court concluded that it did not, reasoning that "something

is not an improvement unless it is itself, in whole or in part,

constructed or assembled in connection with a building or

structure or other construction-related project." Id. at 43. A

backup transformer was never meant to be and was never used in

connection with the actual construction at hand. The court

noted that the transportation and storage of the backup

transformer was also not an improvement because it

"neither made a permanent addition to [the defendant]'s
power plant -- the transformer might be again moved to
another location or sold, despite its large size -- nor
effected anything that actually rendered the facility more
useful or productive, either upon delivery or, indeed,
ever, since the transformer might be sold or moved before
being used, or never used at all."

Id. at 46-47.

Here, unlike the backup transformer in Mammoet, the

excavator and loader were intended to be, and were in fact, used

for the "improvement of real property." Although daily usage

logs were not kept, the judge found that out of the total time

the equipment was on site (more than four years for the

excavator and more than three years for the loader), "Alliance

furnished the [e]xcavator and [l]oader for the improvements for

a total period of one and one[-]quarter years each" based on

testimony about typical industry practice for the duration of

this type of project, as well as evidence of the equipment’s
11

down time. The judge concluded that although some projects may

inevitably include "down time," i.e., "short periods of

inactivity during which it would not be practical to return and

re-lease the equipment," what happened here crossed a line. The

judge reasoned that, "by analogy to Mammoet, long-term storage

of equipment does not qualify as 'furnish[ing]' equipment, even

if the equipment is stored on the project site." Although this

reasoning has some appeal, the statute does not tell us how much

storage is "long-term" storage. The statute does not authorize

judges to draw lines between periods of nonuse that are

reasonable and those that exceed market norms to such a degree

that the corresponding costs become unrecoverable through a

mechanic's lien. If the Legislature wishes to adopt such a

provision, the other State statutes that we have cited supra

provide models for doing so.

The judge also found that "Ivester used both the [l]oader

and [e]xcavator to perform [its] obligations under the contract

with Bruno." Since the equipment was intended to be, and in

fact was, used for the improvement of real property, Mammoet

does not provide justification to reduce the amount of a lien

amount based on periods of nonuse. We conclude that there is no

provision in G. L. c. 254, § 4, that allows a judge to reduce

the amount of a mechanic's lien from the amount due under an

undisputed contract. See Commonwealth v. Brooks, 366 Mass. 423,
12

427-428 (1974) ("statutes must be construed as written and

cannot be rewritten judicially"); Dalli v. Board of Educ., 358

Mass. 753, 759 (1971) ("We have traditionally and consistently

declined to trespass on legislative territory in deference to

the time tested wisdom of the separation of powers . . . even

when it appeared that a highly desirable and just result might

thus be achieved"); King v. Viscoloid Co., 219 Mass. 420, 425

(1914) (we do not "read into the statute a provision which the

Legislature did not see fit to put there, whether the omission

came from inadvertence or of set purpose"); Larkin v.

Charlestown Sav. Bank, 7 Mass. App. Ct. 178, 183-184 (1979) ("As

we read the statute, its terms leave no room for the addition of

such language, and any desired change in the statutory language

would be for the Legislature to make in the first instance, not

a court" [footnote omitted]).

Likewise, this court’s decision in John Marini Mgt. Co.

does not support Bruno's argument. There the court concluded

that the lien "is intended to protect the value of the use of

such equipment during the process of construction. Typically,

that value is the fair rental value of the equipment for the

time it is used in the construction process." John Marini Mgt.

Co., 70 Mass. App. Ct. at 152. Bruno argues that the amount of

the liens, therefore, should be the fair market value of the

use, which would reduce Alliance's liens for the time the
13

equipment was not actively being used for the project. However,

the court in that case did not reduce the lien amount to "the

fair rental value of the equipment for the time it [was] used,"

but instead merely excluded from the recoverable lien amount any

compensation for damage to equipment or for equipment that was

not returned. Id. To reduce the recoverable amount here to the

fair rental value for the period of actual use would be a large

expansion of the existing law without legislative authority,

which we decline to do. Additionally, the court's use of the

word "[t]ypically" to describe a lien's value as the fair market

value of actual use indicates that the court did not intend the

reduction of a mechanic's lien for periods of nonuse to be a

legal rule. Id.

Accordingly, we agree with Alliance that the judge erred in

reducing the amount of the liens for periods of nonuse.

b. Repair of the rental equipment. Bruno also argues that

the cost of repairs cannot be included in the lien amount under

G. L. c. 254, § 4. With this, we agree.6 The mechanic's lien

statute "contains no suggestion that mechanic's liens are

intended to cover . . . negligently inflicted damage" or "the

6 The judge agreed as well, but because of his manner of
calculating the amount Alliance would recover based on market
values, he did not find it necessary to reduce that recovery to
exclude repair costs. Because we have concluded that the
judge's manner of calculation was in error, we must now
separately account for the unrecoverable repair costs.
14

value of [rental] property which was damaged or not returned."

John Marini Mgt. Co., 70 Mass. App. Ct. at 152-153. "[T]he lien

does not cover the total value of the rental equipment . . .

furnished where, under the contract, the equipment is intended

to be returned to the subcontractor to be used in other

projects. Rather, the lien is intended to protect the value of

the use of such equipment during the process of construction."

Id. at 152. Although the issue now before us was not directly

addressed in John Marini Mgt. Co., we think, based on the

parties' limited briefing of the issue, that the principles of

that decision apply to repair costs incurred by the equipment

lessor (Alliance) and charged to the lessee (Ivester).

Here, the excavator and loader were damaged during

construction, presumably by Ivester, and required repairs by

Alliance. During at least some of these repairs, the equipment

was transported off site to a facility in Foxborough. The

excavator underwent eight repairs totaling $62,371.15, and the

loader underwent nine repairs totaling $49,602.91. In total,

the cost of repairs to Ivester for both pieces of equipment was

$111,974.06.
15

Because G. L. c. 254 does not permit recovery of the repair

costs of the rental equipment, $111,974.06 shall be excluded

from the total judgment awarded to Alliance.7

2. Validity of liens. Bruno argues that there are three

reasons Alliance’s liens are invalid: (1) the notices of

contract were not timely filed, see G. L. c. 254, § 4; (2)

Alliance willfully and knowingly claimed amounts more than what

was due, see G. L. c. 254, § 11; and (3) there was no amount due

or to become due from Bruno to Ivester under the original

contract at the time Alliance's notices of contract were filed

and Bruno had actual notice of them, see G. L. c. 254, § 4. We

address each in turn and conclude that none is persuasive.

a. Timeliness. Bruno first argues that the judge erred in

finding that Alliance's notices of contract were timely filed.

General Laws c. 254, § 4, provides, as relevant here, that a

subcontractor (Alliance) is required to file a notice of

contract within "ninety days after the last day a person

entitled to enforce a lien under section two or anyone claiming

by, through or under him . . . furnished rental equipment." The

date from which the ninety days began to run is at issue here

7 Bruno has not requested that the liens be reduced to
account for the time the equipment was off site for repairs, so
we need not consider that issue in this case. This is not to
say, however, that a lien may not be reduced by the amount of
time equipment is offsite being repaired in future cases.
16

and depends on when the equipment was last furnished for

Ivester's work under the original contract. Bruno argues that

October 4, 2018, is the date from which ninety days should be

measured because that is the last day Alliance's equipment was

used for work on the project.8 Under this theory, Alliance's

filings on March 27, 2019, and May 3, 2019, were more than

ninety days after October 4, 2018, and thus the filings were

untimely.

Bruno's argument presents questions of law and fact. As to

the legal question, Bruno argues that the equipment cannot be

considered to have been "furnished" during periods when it was

not actually being used, an argument that we have rejected for

the reasons stated above. As to the factual question, the issue

is whether the rental equipment was last "furnished" for use

under the original contract no more than ninety days before

Alliance's filings.

The trial judge determined that the filings were made

within ninety days of when Alliance last furnished the rental

equipment for such use because "in the absence of any contrary

directive from Bruno, Ivester continued to have the obligation

to provide services on the original contract as of March 15-18,

8 Kenneth testified that he believed that the excavator was
used on the project in March and May of 2019, but the judge
found that this work was not within the scope of the original
contract.
17

2019," under section 2.1 of the original contract.9 Under

section 2.1, Ivester was required "to furnish sufficient

administration and superintendence of the [w]ork and use best

efforts to furnish at all times an adequate supply of workmen

and materials, and to perform the [w]ork in the best and

soundest way in the most expeditious manner consistent with good

construction and trade practices." The judge found that Ivester

could not "reasonably or safely predict" that it could comply

with its obligations under section 2.1 without the rental

equipment being available. That, coupled with the fact that

Bruno did not notify Ivester "in a reasonable way" that its

obligations were relieved or seriously look for a replacement

contractor until February or March 2021, made it reasonable for

Ivester to keep the equipment on the site in case there was

further work to be done. The judge found that Alliance and

Ivester determined by March 18, 2019, that the "[e]quipment was

not needed on the [p]roject in the near term and could be

removed without jeopardizing Ivester's compliance with [s]ection

2.1."

Based on the evidence as a whole, we are not "left with the

definite and firm conviction that a mistake has been committed"

9 March 16 was the date that construction work could resume
each year under section 350-23-B of the North Reading
subdivision regulations.
18

(citation omitted), Herson, 40 Mass. App. Ct. at 789, and

conclude that the judge's finding that Alliance last furnished

the rental equipment for the improvement of the property on

March 18, 2019, was not clearly erroneous, and thus, the notices

of contract were timely filed by Alliance.

b. Willfully and knowingly. Under G. L. c. 254, § 11,

"[t]he validity of the lien shall not be affected . . . by an

inaccuracy in stating the amount due for labor or material . . .

unless it is shown that the person filing the [lien] has

wilfully and knowingly claimed more than is due him." Bruno

argues the liens are invalid because Alliance willfully and

knowingly claimed an inflated amount.

The judge's finding that Alliance did not knowingly claim

more than was due was not clearly erroneous. For the liens to

be invalid, Alliance must have "knowingly" sought or "had

knowledge" that it was seeking to recover amounts that were not

due to it. See Still v. Commissioner of Dep't of Employment &

Training, 39 Mass. App. Ct. 502, 510 (1995), S.C., 423 Mass. 805

(1996) (discussing "dictionary definitions and decisional

precedent" that accord "knowing" "basic intentional, cognitive

content"). As the trial judge found, given that judicial

guidance on G. L. c. 254 is scarce, Alliance reasonably could

have believed that under c. 254 it was due "the monthly rental

for the entire period when the equipment was at the site, even
19

if idle -- even if the result exceeded market rents." Alliance

did not know that the judge would ultimately conclude that

c. 254 limited the amount due Alliance on its liens to market

rents (a conclusion that we have now determined was erroneous in

any event). This is the case regardless of whether, viewed

under G. L. c. 93A, Alliance and Ivester were operating a scheme

against Bruno to "run up" the rental charges, as discussed

infra. See Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693

(1975) (G. L. c. 93A liability can be found regardless of

whether underlying conduct is unlawful). This is also the case

even if repair costs cannot be included in the value of the

lien, as discussed supra, for the same reason -- there has been

limited judicial guidance on whether equipment repair costs were

recoverable and "due" under G. L. c. 254.

c. Amount due or to become due. Lastly, Bruno argues that

there was no amount due or to become due under the original

contract, thus invalidating Alliance's liens. General Laws

c. 254, § 4, limits the amount of a subcontractor's lien to "the

amount due or to become due under the original contract as of

the date notice of the filing of the subcontract [was] given by

the subcontractor to the owner."

Bruno argues there is no evidence of the date that Alliance

gave him actual notice that it filed the notices of contract, as

required by G. L. c. 254, § 4, and thus no date as of which to
20

determine whether an amount was due or to become due. While we

acknowledge the mechanic's lien statute requires strict

compliance, see Hammill-McCormick Assocs., Inc. v. New England

Tel. & Tel. Co., 399 Mass. 541, 543-544 (1987), the judge found

that Bruno had actual notice of the contract filings before May

23, 2019, when he filed this action to discharge the liens.

We must consider the threshold question whether there was

an amount due or to become due to Ivester under the original

contract. "The statute is strictly construed against the party

claiming the lien, and that includes establishing that money is

due or to become due." Superior Mechanical Plumbing & Heating,

Inc. v. Insurance Co. of the West, 81 Mass. App. Ct. 584, 588

(2012). The original contract obligated Bruno to pay Ivester

$300,000 pursuant to a distribution schedule and to transfer to

Ivester lots 6 and 7 upon completion of the project. By March

27, 2019, when the liens were filed, Bruno had already paid

Ivester $300,000. However, Bruno had not transferred lots 6 and

7 to Ivester. The issue is whether those lots were still due to

Ivester when Bruno received notice of the liens.

Bruno urges us to conclude there was no amount "to become

due," citing BloomSouth Flooring Corp. v. Boys' & Girls' Club of

Taunton Inc., 440 Mass. 618 (2003), and Superior Mechanical

Plumbing & Heating, Inc., 81 Mass. App. Ct. at 589. However,

these cases are inapposite. In BloomSouth Flooring Corp., the
21

contractor abandoned the job before substantial completion. As

a result, the owner terminated the contract, and the contractor

was not entitled to final payment under the original contract,

meaning the plaintiff subcontractors could not recover on their

liens. See BloomSouth Flooring Corp., supra at 619-620, 624.

Here, the judge found that Bruno's search for a new

contractor had only just begun by the time of trial and that,

prior to that point, his actions reflected an expectation that

Ivester would continue as the contractor. The judge found that

"Ivester had an amount to become due under the [original
c]ontract, namely the two lots that [it] would receive upon
[p]roject completion. There was a reasonable expectation
at the time that Ivester would complete the [p]roject, as
evidenced by the absence of any effort to terminate the
[original] [c]ontract or to terminate Ivester and the fact
that, nearly two years later, Bruno's search for a
contractor to replace Ivester's role on the [p]roject had
just commenced" (footnote omitted).

These findings distinguish this case from BloomSouth Flooring

Corp. because Bruno did not terminate Ivester and there was a

reasonable expectation, at the time Alliance filed its notices

of contract, that Ivester would complete the original contract

and receive the valuable lots that were "due."

While it is true that formal termination is not the only

factor used to determine whether an owner owes additional

payments to a contractor, see Maverick Constr. Mgt. Servs., Inc.

v. Fidelity & Deposit Co. of Md., 80 Mass. App. Ct. 264, 269-270

(2011), Bruno's argument is not supported by Superior Mechanical
22

Plumbing & Heating, Inc., 81 Mass. App. Ct. at 585-586, either,

where the notice of contract was filed before the contract was

terminated. In that case, the contractor committed a material

breach of the contract by not timely paying the subcontractors -

- a requirement that was emphasized in multiple provisions of

the contract, making it "abundantly clear that [the

contractor]'s failure to pay its subcontractors . . . relieved

[the owner] of its obligation to make any further payments" and

as a result there was no amount due or to become due. Id. at

590.

Here, the trial judge found that "while Ivester certainly

failed in many respects, Bruno himself was responsible for many

delays and, if he intended to relieve Ivester from the

obligation to be ready when called upon, did not act in a

reasonable way to relieve Ivester of the obligation to act in

the 'most expeditious manner consistent with good construction

and trade practices.'" The judge did not find that Ivester

committed a material breach of the contract and in fact placed

responsibility of the delays on Bruno as well. Bruno did not

relieve Ivester of its responsibilities, and Ivester continued

to keep the equipment on the work site, which the trial judge

said was "a reasonable way to comply with Section 2.1 of the

original contract as long as future work was reasonably likely

to be needed in the near term." Because the trial judge in this
23

case found that Ivester was still prepared to complete the work,

and Ivester did not have any additional material breaches of the

contract, the reasoning in Superior Mechanical Plumbing &

Heating, Inc., does not apply to this case.10

Therefore, as of May 23, 2019, when Bruno filed suit to

discharge the liens at issue (and therefore must have had notice

of them), lots 6 and 7 were "to become due" to Ivester. Bruno

and his real estate broker testified at trial that lots 4, 5,

and 6 were sold for $450,000 each. This amount is confirmed in

the trial judge's findings. The judge found that the value of

lots 6 and 7 together was $900,000, which exceeded the amounts

Alliance claimed under the liens.

3. Chapter 93A. General Laws c. 93A, § 2 (a), prohibits

"unfair or deceptive acts or practices." When considering a

c. 93A claim, "[a]lthough whether a particular set of acts, in

10Bruno also contends that Ivester failed to meet a
condition precedent of the original contract by not completing
the work, that his obligation to pay Ivester therefore did not
arise, and that there is no amount due or to become due for this
reason. This argument is unavailing, because almost every
construction contract requires the work to be completed before
full payment is required. Were we to invalidate any lien where
the work had not been completed, this would significantly
diminish the usefulness of the mechanic's lien statute, which
has as its primary purpose "to provide security to contractors,
subcontractors, laborers, and suppliers for the value of their
services and goods provided for improving the owner's real
estate." NES Rentals v. Maine Drilling & Blasting, Inc., 465
Mass. 856, 860 (2013), quoting Hammill-McCormick Assocs., Inc.,
399 Mass. at 542-543.
24

their factual setting, is unfair or deceptive is a question of

fact . . . the boundaries of what may qualify for consideration

as a c. 93A violation is a question of law" (citation omitted).

Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 563 (2008).

Factual findings underpinning a c. 93A claim are reviewed for

clear error. See Klairmont v. Gainsboro Restaurant, Inc., 465

Mass. 165, 171 (2013).

To determine if a practice is unfair, we consider

"(1) whether the practice . . . is within at least the penumbra

of some common-law, statutory, or other established concept of

unfairness; (2) whether it is immoral, unethical, oppressive, or

unscrupulous; [and] (3) whether it causes substantial injury to

consumers (or competitors or other businessmen)" (citation

omitted). PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass.

593, 596 (1975). That conduct is not independently unlawful is

not a defense to a G. L. c. 93A claim, as the statute "created

new substantive rights by making conduct unlawful which was not

unlawful under the common law or any prior statute" (citation

omitted). Slaney, 366 Mass. at 693.

The trial judge determined that Matthews and Ivester had

devised and executed a "scheme . . . to extract money[] from

Bruno well beyond any commercially justifiable amount." The

judge's conclusion was based on his findings that
25

"Alliance and [Kenneth] had a pre-existing personal
relationship. [Kenneth] owed Alliance's principal,
Matthews, hundreds of thousands of dollars, which they both
knew [Kenneth] almost certainly could not repay except with
funds from Bruno in connection with Ivester's work on the
project. Ivester and Alliance entered into open-ended
equipment rentals, lacking any end date. They then allowed
monthly charges to accrue well beyond what they knew were
Ivester's ability to pay, well beyond the expected period
of equipment use for the project. Alliance made no efforts
to secure return of the equipment. Ivester failed to keep
contractually required activity logs, which prompted no
action by Matthews to enforce that requirement. Then
Alliance filed notices of contract for amounts grossly in
excess of market rentals and, indeed, more than twice the
entire purchase price of the equipment. It made no effort
to deduct charges for time when the equipment was idle,
furnishing nothing to the improvements at issue."

Alliance contends that the judge's conclusion was unsupported by

the evidence. We disagree.

Other findings further support the judge's conclusion that

there was a scheme, including that the leases "had no

termination date and no maximum rental amount," that Alliance

had knowledge that the equipment was sitting idle for long

periods of time, and that Ivester declined to purchase the

equipment because the price was too high, which showed "Alliance

never reasonably expected [Ivester] to pay amounts well in

excess" of the full price. Instead, Alliance sought to have

Bruno become financially liable for the amount. The judge also

considered that Matthews and Kenneth had a preexisting

relationship, where Kenneth owed Matthews hundreds of thousands

of dollars with no clear means to repay the money. In our view,
26

the judge's findings were "supported by [a] reasonable view of

the evidence, including all rational inferences of which it was

susceptible" and there was no clear error (citation omitted).

FOD, LLC v. White, 99 Mass. App. Ct. 407, 412 (2021).

We also do not accept Alliance's argument that the judge

erred by including in the G. L. c. 93A damages award Bruno's

attorney's fees for defending against the two liens on which

Alliance ultimately recovered, instead of limiting the award to

the fees related to two other liens that were dissolved near the

outset of the case. The judge expressly rejected this theory,

finding that Alliance's actions were unfair and deceptive with

regard to all four liens, including the two that proved viable.

As the judge found, "there was no clear authority making this

unfair scheme unlawful under c. 254." However, Ivester

continued to keep the equipment on the work site for long

periods of time, taking "no steps to return the equipment to

save rental charges." The judge further found that Alliance

knew Ivester was doing this, and accumulating fees for Bruno,

but "made no efforts to secure breturn of the equipment." This

failure to act or at least notify Bruno was, at a minimum,

immoral, unethical, oppressive, and unscrupulous and thus

justified finding a c. 93A violation.

We recognize that, as a result of this appeal and the

limitations of G. L. c. 254, Alliance's recovery under the liens
27

will include amounts that the trial judge concluded were

"unreasonably, unfairly[,] and deceptively inflated."

Consequently, we think it appropriate to give the judge an

opportunity to consider whether Bruno may recover those amounts

as additional damages on his G. L. c. 93A claim, and we remand

for reconsideration of the c. 93A damages. See, e.g.,

Nemirovsky v. Daikin N. Am., LLC, 488 Mass. 712, 729 (2021) ("On

remand, the judge should . . . determine whether the G. L.

c. 93A damages . . . should be enhanced"); Klairmont, 465 Mass.

at 185-186 ("substantial reduction in the amount of damages the

plaintiffs may recover on remand" may warrant reconsideration of

attorney's fees awarded under c. 93A).

Conclusion. We conclude that Alliance's liens were valid

and that the judge erred by reducing the lien amount without

authorization from G. L. c. 254, § 4, but that the amount of the

liens should have been reduced by $111,924.06 in equipment

repair costs. Accordingly, that portion of the judgment related

to Alliance's liens shall be amended to provide an award to

Alliance in the amount of $585,505 (the total of the lien

amount, $697,479.06, minus repair costs, $111,974.06). With

respect to the portion of the judgment related to Bruno's claim

for violation of G. L. c. 93A, we affirm, but we remand the

matter so the trial court can reconsider the appropriate amount
28

of c. 93A damages consistent with this opinion. The judgment is

otherwise affirmed.

Bruno is entitled to recover attorney's fees and expenses

incurred in defending against Alliance's unsuccessful cross-

appeal as to the G. L. c. 93A claims. See Bonofiglio v.

Commercial Union Ins. Co., 412 Mass. 612, 613 (1992). See also

Yorke Mgt. v. Castro, 406 Mass. 17, 19 (1989) (language in

c. 93A making "provisions for a 'reasonable attorney's fee'

would ring hollow if it did not necessarily include a fee for

the appeal").11

So ordered.

11In accordance with the procedure specified in Fabre v.
Walton, 441 Mass. 9, 10-11 (2004), Bruno may, within fourteen
days of the issuance of the rescript in this case, submit an
application for attorney's fees with the appropriate supporting
materials in defending the G. L. c. 93A claims. Alliance shall
have fourteen days thereafter to respond. See Fariello v. Zhao,
101 Mass. App. Ct. 566, 573 n.5 (2022).