MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, 331 Lafayette, LLC (331 Lafayette), appeals from a judgment in favor of Fran and Dianes, LLC (F&D), on its G. L. c. 93A, § 11 claim, and from a judgment assessing statutory attorneys fees and costs. We reverse.
Procedural background. In April 2016, F&D brought this action against Lee Family Enterprises, LLC (LFE), and 331 Lafayette, asserting breach of lease and related claims.
2
Between September 16 and September 23, 2019, the contract-based claims were tried to a jury. The trial judge reserved the G. L. c. 93A claims to herself.
3
Answering special questions, the jury returned a defense verdict.
4
The judge, however, found against both defendants, and awarded $80,691 in damages, which she doubled due to her finding that the c. 93A violations were knowing and intentional. After a subsequent hearing, she ordered LFE and 331 Lafayette to pay attorneys fees and costs to F&D.
5
Judges decision. We summarize the judges findings of fact, reserving certain facts for later discussion. In August 2009, LFE and F&D entered into a two-year, thirteen-day commercial lease agreement for a portion of 331-333 Lafayette Street in Salem (the premises).
6
The lease allowed F&D to extend the original term for up to four additional two-year terms through August 31, 2019, provided that it was not in default at the time of the extensions. To exercise the option to renew, the lease required F&D to give written notice, at least six months prior to the commencement of the next two-year term, by registered or certified mail, to LFE and to its attorney, Gerard Fong. Under the lease, if F&D failed to extend the lease, F&D was ineligible to extend the lease for subsequent two-year terms.
F&Ds principals, Francis Riggieri and Diane Hamlen, occupied the premises and in 2010, began operating a pizza store. In February 2011, as the six-month window for renewal approached, Riggieri and Hamlen called Chak Lam Lee, LFEs principal, and explained that they were “very, very busy, and their lawyer had moved ․ [and] they wanted to renew, but did not want to have to send any written notice.” Lee, who had a good relationship with them, responded, “[N]o writing is necessary unless you want to sell the business, but you need to continue to pay rent and expenses.” Although F&D was frequently late with its rent and share of the maintenance costs thereafter, Lee always accepted its payments, and did not terminate the lease.
On April 16, 2015, LFE agreed to sell 331-333 Lafayette Street (the property) to Robert Burr, the manager of 331 Lafayette, for 1.5 million dollars.
7
The purchase and sale agreement provided that the property would be conveyed “subject to and with the benefit of the [l]eases with Fran & Diane [and other tenants]․” LFE agreed to provide “[f]ull and complete [r]ent [r]olls, tenant information[,] and property documentation” within two weeks and to assign all leases at the closing.
The judge found that the purchase and sale agreement informed Burr that “[a]ll leases and tenancies listed in the [l]ease [s]chedule (which included F&Ds [l]ease) are in full force and effect in accordance with their terms and have not been modified, terminated, extended, renewed or amended, except as explicitly set forth in the [l]eases or [l]ease [s]chedule.” She also found that Burr, while performing due diligence, received and reviewed F&Ds lease, and all correspondence between F&D, Lee, and LFE. The judge found that Burr understood “well before the closing” that F&D had signed a commercial lease in 2009 that ran for up to ten years, and that no written renewals had been provided to him by Lee or filed at the registry of deeds.
Burr introduced himself to Hamlen at the restaurant, informing her that he was “buying the building, tearing it down and putting up an office building.” When Hamlen responded that “[they] have a lease,” Burr disagreed, stating, “No, you are a tenant at will.” Burr reiterated his view at a subsequent meeting with both Hamlen and Riggieri in July 2015. At that time, he informed them that “they had no right to stay more than [thirty] days,” and that “they would have to leave” in around a year.
8
On May 31, 2016, the same day that the sale closed, 331 Lafayette served F&D with a notice to quit. When F&D remained in occupancy, 331 Lafayette served F&D with a summary process summons and complaint, seeking only possession. On August 25, 2016, a District Court judge granted summary judgment for possession to 331 Lafayette, rejecting F&Ds defenses of oral extension of the lease and waiver of the requirement of written extensions. Due to F&Ds admittedly stopping payment on a check for two months of use and occupancy after the adverse summary judgment ruling, the same judge dismissed F&Ds appeal of the judgment and ordered execution to issue immediately. F&D did not obtain a stay of execution, and on November 3, 2016, the Essex County Sheriffs Department levied on the execution, evicting F&D.
9
Discussion. A breach of contract, standing alone, is not an unfair trade practice under G. L. c. 93A, § 2. UBS Fin. Servs., Inc. v. Aliberti, 483 Mass. 396, 413 n.22 (2019). “Instead, to rise to the level of a c. 93A violation, a breach must be both knowing and intended to secure ‘unbargained-for benefits’ to the detriment of the other party.” Zabin v. Picciotto, 73 Mass. App. Ct. 141, 169 (2008), quoting NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 34 (1st Cir. 1994). “The breaching partys conduct must exceed the level of mere self-interest, ․ rising instead ‘to the level of “commercial extortion” or a similar degree of culpable conduct’ ” (citation omitted). Zabin, supra. “Whether conduct is unfair or deceptive under G. L. c. 93A is a mixed question of law and fact․ [W]hen reviewing a trial judges conclusion that particular conduct was ․ unfair or deceptive, we review the judges subsidiary findings of fact under the clearly erroneous standard, while reviewing de novo [her] ultimate conclusions of law.” Id. at 170.
Here, the judge found in her written decision that “the basis of the [c.] 93A claim as to [331] Lafayette is not honoring F&Ds lease.”
10
After careful review, we conclude that the judges findings of fact do not rise to a violation of c. 93A. Moreover, the judges finding that both Burr and 331 Lafayette “knew F&Ds lease had been repeatedly renewed” and despite that knowledge, “falsely” and “incorrectly” claimed F&D was a tenant at will was inconsistent with her other findings.
The 2009 lease required written notice to renew. The lease provided that it could be modified, but only in writing in a document signed by both parties; it also contained a nonwaiver provision. Burr would have known from reviewing all the correspondence that F&D admitted that it had not complied with the notice provision, and that there were no timely, written renewal notices sent in 2011, 2013, or 2015.
11
Moreover, as the judge expressly found, the purchase and sale agreement informed Burr that no lease had been extended or renewed “except as explicitly set forth in the [l]eases or [l]ease [s]chedule.” Neither F&Ds lease nor the lease schedule referenced any extensions or renewals of F&Ds lease. The “false” letter of July 16, 2015, from Attorney Fong on behalf of LFE to F&D, in which Burr played no part, would only have served to confirm Burrs conclusion that the 2009 lease had expired and F&D was a tenant at will.
None of the correspondence cited by the judge put Burr on notice that F&D had renewed the 2009 lease. Lees letter dated January 23, 2013 concerned rent arrearage and the base rent increase, effective September 1, 2012. The letter was not “clear” evidence of the existence of an extended lease: the letter said nothing about a lease renewal and Lees adherence to the schedule of rent in the “rental agreement” was equally consistent with a tenancy at will agreement following a lease expiration. See Wit v. Commercial Hotel Co., 253 Mass. 564, 570 (1925) (commercial tenant that fails to extend lease becomes tenant at will, but is still bound by other terms of lease).
The judges reliance on Lees letter to F&D dated August 31, 2014, to infer that “[c]learly, Mr. Lee ha[d] agreed that [F&D] did not need to send any writing to have a renewed lease” was also misplaced.
12
If F&D had orally renewed the lease in 2013, the extended term would have run for two years -- through August 2015 -- and there would have been no reason for Lee to make inquiry in August 2014 about F&Ds intentions in the middle of the term. The letter suggests at best that the parties may have entered a new type of lease arrangement that Riggieri perhaps renewed on September 1, 2014. That one-year lease would have expired on August 31, 2015, and there is no evidence of any subsequent renewals or extensions.
Other subsidiary findings undercut the judges conclusion that Burr knowingly and intentionally violated c. 93A. For example, the judge found that (1) Burr never had any prior issues involving waiver in his earlier developments; (2) Burr had never dealt with a commercial landlord that did not require written notice of a lease extension; and (3) Burr “did not know very much about waiver, because he had never understood that [waiver] could be done legally without a writing, [ ] but that is what happened here.” Rather than implicating G. L. c. 93A, these findings connote an absence of bad faith by Burr. They are also incompatible with the judges criticisms of Burr for being “pretty sure” F&D would be evicted, and for bringing an eviction action and maintaining his demolition schedule on that basis. The G. L. c. 93A ruling cannot stand. See VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 617 & n.8 (1994) (where judges ultimate conclusion that no c. 93A violation had occurred “clash[ed] discordantly” with judges factual findings, appellate court may reach its own conclusion and set aside judges ultimate ruling).
Given the terms of the lease, the purchase and sale agreement, the communications between LFE and F&D, the July 16, 2015 letter on behalf of LFE maintaining that F&D was a tenant at will, and Burrs lack of experience with waiver, we are unpersuaded why Burr should be faulted for failing to ask Lee or Fong additional “important” questions about Riggieris and Hamlens claim that they had a renewed lease. See Humphrey v. Byron, 447 Mass. 322, 327 (2006) (“ ‘modern notions of consumer protection’ [that] played a role in the development of the law regarding residential leases ․ have no applicability to dealings between businesses”); Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 238 (2008) (“[B]usinesses seeking relief under [s]ection 11 are held to a stricter standard than consumers in terms of what constitutes unfair or deceptive conduct” [citation omitted]). In any event, Burrs failure to ask more questions amounted to mere negligence, for which G. L. c. 93A liability does not lie. See Adams v. Congress Auto Ins. Agency, Inc., 90 Mass. App. Ct. 761, 771 (2016).
Here, to the extent that the judge found that in proceeding with eviction, Burr “falsely” claimed that F&D was a tenant at will, Burr was entitled to dispute Riggieris and Hamlens position that F&Ds lease was in full force and effect. Burrs difference of opinion with a tenant based on this record would not amount to an unfair or deceptive business practice. Burr never hid his position regarding F&Ds lease and his demolition plan from Riggieri and Hamlen. He also followed the law in connection with the eviction proceeding.
The motive or motives for bringing the eviction action attributed to Burr by the judge did not support G. L. c. 93A liability. The judge found that the motive in evicting F&D was Burrs desire to get his project developed “on his schedule.” A developers desire to avoid delays is a legitimate business purpose. Although the judge noted in her findings that “Burr admitted he was angry at F&D for delaying his project,” she did not expressly find that this was a second motive for bringing the eviction proceedings. Even if the judge could have inferred that Burr also pursued eviction for this reason, the second motive did not warrant the invocation of G. L. c. 93A. See Buster v. George W. Moore, Inc., 438 Mass. 635, 640, 650-652 & n.21 (2003) (affirming dismissal of c. 93A claims where developer had mixed motives in purchasing note and mortgage of plaintiff and in instigating inspections of his property for code violations, even though developer failed to disclose all its motives, such as intention to foreclose and compelling plaintiff to dismiss appeal and lawsuit holding up developers project).
In an effort to preserve its judgment, F&D argues that 331 Lafayettes conduct between June 2018 and November 3, 2018 amounted to a constructive eviction. The judge was not asked to adjudicate the claim, and did not make findings on the elements required to establish one. See Wesson v. Leone Enters., Inc., 437 Mass. 708, 713 (2002). We do not reach F&Ds newly-minted argument. See Shafnacker v. Raymond James & Assocs., 425 Mass. 724, 731 (1997) (“arguments raised here for the first time on appeal are waived”).
Conclusion. The October 25, 2019 judgment against 331 Lafayette, LLC, after the nonjury trial, is reversed. In light of the result we reach, the January 31, 2020 judgment for costs and fees under c. 93A against 331 Lafayette, LLC, is reversed. See International Totalizing Sys., Inc. v. PepsiCo, Inc., 29 Mass. App. Ct. 424, 437 n.20 (1990).
13
So ordered.
Reversed
FOOTNOTES
2
. LFE settled all claims with F&D postjudgment, and is not a party to this appeal. We do not address the judges conclusion that LFE violated c. 93A.
3
. On the first day of trial, the judge granted leave to F&D to file a second amended complaint adding G. L. c. 93A claims against 331 Lafayette. As the jury were deliberating, the judge conducted a short bench trial on the G. L. c. 93A claims, and thereafter based her decision on the evidence presented at both trials.
4
. With respect to defendant LFE, the jury found, as herein relevant, that Chak Lam Lee did not waive the written notice requirement to extend F&Ds lease; F&D did not have a valid lease on May 31, 2016; LFE breached the lease by violating the implied covenant of good faith and fair dealing; but that F&D suffered no damages as a result of those violations. The jury found that 331 Lafayette did not wrongfully terminate and remove F&D from the leased premises; 331 Lafayette did not breach the lease by violating the implied covenant; and Lafayette did not wrongfully deny F&D access to the premises and its accessory uses.
5
. A judges factual findings, even if inconsistent with the jurys findings, must stand for c. 93A determination unless they are clearly erroneous. See Velleca v. Uniroyal Tire Co., 36 Mass. App. Ct. 247, 251 (1994).
6
. The judges finding that the operative document “was a ten-year lease” was clearly erroneous. A lease that may be extended for up to ten years is different from a ten-year lease.
7
. An experienced developer, Burr purchased four properties around this time from LFE and a third party, intending to redevelop the block into a large, three-story office building.
8
. It is undisputed that Burr offered F&D commercial space in the new office building, which F&D eventually declined; F&D offered to settle all matters between them for a payment of $240,000 on or before September 1, 2015; and that Burr counteroffered $50,000, which F&D rejected. The judge found that “[w]hether Mr. Burr made an offer to them to rent in his new space or whether Mr. Riggieri suggested that instead Mr. Burr could provide funds for the loss of their lease and equipment [we]re not material to [her] decision.”
9
. Approximately one year later, the Appellate Division of the District Court Department reversed the dismissal and remanded the case to the District Court for trial. As 331 Lafayette points out, at the time the appeal was decided, the case was moot. Burr received the occupancy permit for the new office building in November 2017.
10
. The judge found another violation of G. L. c. 93A in her preliminary findings read from the bench, ruling that Burr falsely and deceptively hid information from the District Court judge during the eviction proceedings. Because she reserved the right to edit her decision and deleted this basis of liability from her final decision, this basis is not before us for review. The judge also found that Burrs demolition, abatement, and related activities involving the adjacent properties prior to the execution “had a serious impact on F&Ds business” and warranted damages. The written decision, however, does not include a finding of c. 93A liability based on that conduct. We also note that the grounds the judge found for underpinning liability were completely at odds with F&Ds theory of liability pursued at the c. 93A trial. That theory involved allegations that Burr intentionally negotiated in bad faith with Riggieri and Hamlen about a potential settlement, masking his true intent to publicize what he considered their extortionate settlement offer, see note 7, supra; and that Burrs treatment of F&D was part of a pattern of misconduct as demonstrated by his breach of an assignment agreement with another tenant displaced by 331 Lafayettes purchases.
11
. By letter dated June 3, 2015, Riggieri and Hamlen asked LFE to accept their letter as written notice under the lease to extend F&Ds lease from 2015 through 2017. This was the first written notice given of the wish to extend the lease and it was given after Burr had agreed to purchase the property.
12
. Lee stated in the letter that he had not “heard from [F&D] about renewing the lease from September 1, 2014 through August 31, 2015. Please let me know if [F&D] would like to renew.” The judge construed Riggieris handwritten notes on the letter to indicate that F&D renewed the lease effective September 1, 2014, through August 31, 2015.
13
. Deciding the case as we do, we need not reach any issues relating to damages, or to the credit allegedly owed to 331 Lafayette against the judgment by virtue of LFEs settlement.