Dennis A Kelley vs. Riccelli Enterprises of Massachusetts, Inc., and others, March 29, 2010
Motion for Summary Judgment, Withholding Payment on Contract and G.L.c. 93a, Attorney’s Fees
Facts
Plaintiff (“Kelley”) was an independent trucking contractor, who was hired by the defendant (“Ricelli”). Two days after work was completed and a bill was sent to Ricelli for Kelley’s services, a fire broke out in Ricelli’s equipment yard which destroyed Kelley’s tractor, the two vehicles on either side of it, and caused oil and gas to leak resulting in environmental damage. Ricelli withheld payment to Kelley and filed suit against him in superior court for the costs of the environmental damages, claiming it was Kelley’s truck that caught fire and caused all the damage. After numerous requests from Kelley and his attorney for Ricelli to pay for the work done, Kelley filed this lawsuit alleging that Ricelli had withheld payment only to gain advantage in its litigation with Kelley’s insurer.
The trial court agreed with Kelley and found a breach of contract and damages, and then doubled those damages under G.L.c. 93a, and assessed attorney’s fees. Ricelli appealed both a denial of the summary judgment motion he filed at the start of the trial, as well as the finding of a violation of 93a and damages. The Appellate Division affirmed the judgment and damages.
Summary Judgment
The denial of a motion for summary judgment is not appealable after trial. The Appellate Division said that Ricelli could have sought an interlocutory appeal by asking the judge to report the ruling to the Appellate Division, or by requesting a ruling of law to preserve the issue after trial. The court stated that the purpose of summary judgment is to avoid unnecessary litigation in the interest of efficiency, and that if the trial has already been fully litigated, no time could be saved by granting the summary judgment motion on appeal.
Withholding Payment on Contract and G.L.c. 93a
The Appellate Division agreed with the trial judge’s findings and award of damages. The court stated that Ricelli’s actions were sufficient to meet the standard to find a violation G.L.c. 93a §11 governing business-to-business cases: “Conduct in disregard of known contractual arrangements and intended to secure benefits for the breaching party constitutes an unfair act or practice for c.93a purposes.” The court further dismissed the defendant’s interpretation of §11, “requiring a level of rascality that would raise an eyebrow of someone inured in the rough and tumble world of business”, as not appropriate because Massachusetts now views phrases such as “level of rascality” as “uninstructive” in resolving questions of unfairness under G.L.c. 93a §11. Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc, 420 Mass. 39, 42 (1995).
Attorney Fees
The court noted that approximately 4,000 dollars in attorney’s fees had been reported. The court stated that the SJC has indicated that the basic measure of a reasonable statutory attorney’s fee award is the lodestar method, which involves multiplying the number of hours reasonably spent on the case by a reasonable hourly rate. In this case Kelley’s attorney had 35 years experience in civil litigation, had filed a very complete detailing of his time on the case, and only charged a “modest” professional rate of $275 an hour.-Prepared by AEK
