MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2017 plaintiff Kathleen Trahan filed suit for breach of contract, alleging that defendant Stanley Pelczar defaulted on payments he was required to make under a settlement agreement.
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The defendant counterclaimed for breach of contract, breach of the implied covenant of good faith and fair dealing, and intentional interference with contractual relations (the defendants divorce agreement with his ex-wife, reach and apply defendant Nancy Pelczar).
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In a series of thoughtful decisions, a Superior Court judge granted summary judgment for the plaintiff on her breach of contract claim and on the defendants counterclaims, awarded the plaintiff reasonable attorneys fees, but denied her motions to amend the complaint to add claims under G. L. c. 93A. The defendant appeals from the grant of summary judgment on the counterclaims and the award of attorneys fees; the plaintiff cross-appeals from the denial of her motions to amend the complaint and the denial of her motion to reconsider the award of attorneys fees. We affirm.
Background. The underlying settlement agreement resolved an action that the plaintiff filed in 2012, alleging that the defendant owed her over $500,000 in outstanding loans. The agreement required the defendant to pay the plaintiff $275,000 over a twenty-year period. Payments were structured so that every year the defendant would pay at least $7,500 depending on his income and would owe a “catch up” payment every four years to ensure that one-fifth of the total amount owed had been paid during that four-year period. In the event of default by the defendant, the total balance owed would increase to $375,000.
After the defendant missed several payments, the plaintiff initiated this action. In September 2018, on the plaintiffs motion for partial summary judgment, the judge concluded that there was no material dispute that the defendant had defaulted on his payment obligations, that the total amount he owed had thus increased to $375,000, and that the language of the agreement provided for the increase to be reflected in the “catch up” payments. The judge declined to enter judgment on the plaintiffs claim, however, reasoning that the amount of the judgment could be affected by the defendants counterclaims.
After allowing limited discovery, the judge issued a second summary judgment decision in February 2019. In pertinent part, that decision addressed the defendants counterclaim that the plaintiff had disparaged him in material breach of the settlement agreement, thereby excusing his payment obligations. The judge granted summary judgment for the plaintiff on this counterclaim, concluding among other things that no rational jury could find that the nondisparagement clause was a material term of the agreement.
In August 2020, again after allowing limited discovery, the judge issued his third summary judgment decision in which he dismissed the remaining counterclaims and awarded the plaintiff $44,735.47 in attorneys fees. In the same decision, the judge denied the plaintiffs motions to amend the complaint to add c. 93A claims against the defendant and his attorney. The plaintiff filed a motion to reconsider the fees award, which the judge denied.
Discussion. The defendants appeal. 1. Dismissal of counterclaims. a. Breach of nondisparagement clause. The defendant argues that there is a genuine issue of fact whether the plaintiff materially breached the settlement agreement so as to excuse the defendants own performance under the agreement. The factual basis for this counterclaim is that, during a deposition taken in 2015 in conjunction with the defendants divorce case, the plaintiff testified that the defendant “stole” from her and referred to him as a “bookie.” The defendant claims that this testimony violated the nondisparagement clause of the settlement agreement, which states: “The Parties further agree not to disparage, defame or otherwise degrade each other on account of any of the matters giving rise to this Agreement.”
We conclude that the defendant does not have a “reasonable expectation of proving” a material breach by the plaintiff and so summary judgment properly entered. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). As an initial matter, the nondisparagement clause applies only to statements related to “the matters giving rise to this Agreement” -- namely, the matters surrounding the plaintiffs 2012 lawsuit to recover from the defendant the balance of the loans. The defendant offered no evidence showing that the plaintiffs deposition testimony in the divorce case had any connection to these matters. The judge was thus correct to conclude that the defendant failed to create an issue for trial. See Bourque v. Cape Southport Assocs., LLC, 60 Mass. App. Ct. 271, 277 (2004) (to defeat summary judgment, nonmoving party “must set forth specific facts showing that there is a genuine issue for trial”). Indeed, the defendant does not challenge this part of the judges ruling on appeal.
In any event, even assuming that the plaintiff breached the nondisparagement clause, no rational jury could find that the breach was material so as to relieve the defendant of his obligation to perform. See Duff v. McKay, 89 Mass. App. Ct. 538, 547 (2016). A breach is material “when it involves ‘an essential and inducing feature of the contract.’ ” EventMonitor, Inc. v. Leness, 473 Mass. 540, 546 (2016), quoting Anthonys Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 470 (1991). When the facts are “undisputed or sufficiently lopsided,” a judge may resolve the question of materiality as one of law. EventMonitor, supra, quoting Teragram Corp. v. Marketwatch.com, Inc., 444 F.3d 1, 11 (1st Cir. 2006).
We agree with the judge that the plaintiffs breach of the nondisparagement clause, assuming there was one, was not material as a matter of law. The indisputable “root” of the settlement agreement was the defendants promise to pay $275,000 in exchange for the plaintiffs dismissing her 2012 lawsuit. Aerostatic Engg Corp. v. Szczawinski, 1 Mass. App. Ct. 141, 145 (1973). The first eight pages of the ten-page agreement concern the defendants payment obligations, the process for dismissing the lawsuit, and the parties’ mutual releases. The nondisparagement clause is a single sentence within a one-paragraph confidentiality provision. No reasonable jury could find that the defendant was entitled to rescind his promise to pay the plaintiff $275,000 because she stated during a deposition that he was a “bookie” and “stole” from her. The defendants affidavit, which alleged that the nondisparagement clause induced him into entering the agreement, does not change this result. The defendant would only be justified in repudiating the agreement if the plaintiffs breach affected one of its “essential” features. EventMonitor, 473 Mass. at 547. Because it did not, summary judgment was proper.
b. Breach of contract and implied covenant of good faith and fair dealing.
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These counterclaims, as the judge characterized them,
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allege that the plaintiff breached the settlement agreement or deprived the defendant of its fruits by (i) taking positions in the litigation that effectively sought to accelerate the debt, even though the agreement does not contain an acceleration clause, and (ii) filing motions to reach and apply payments received by the defendant through his divorce, in violation of the agreements security provisions. The judge concluded that the litigation privilege bars these counterclaims. We agree.
The litigation privilege protects “statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding.” Sriberg v. Raymond, 370 Mass. 105, 108 (1976). The privilege also “applies to an attorneys actions during the course of a judicial proceeding, just as it does to the attorneys communications.” Bassichis v. Flores, 490 Mass. 143, 158 (2022). Here, the factual bases of the counterclaims are positions taken by the plaintiff, through her counsel, at various points in this litigation. These are statements that are absolutely protected by the privilege. See id. at 150. We are unpersuaded by the defendants argument that the privilege does not apply because the counterclaims are premised not on statements, but on prelitigation acts of plaintiffs counsel -- namely, conferring with the defendants ex-wife and obtaining a copy of their divorce agreement. The defendant does not claim that this conduct was itself a breach of the settlement agreement; rather, as the defendant makes clear elsewhere in his brief, the counterclaims are directed at counsels litigation positions, including statements he made at an injunction hearing. To the extent the defendant seeks to draw a distinction between counsels statements and his actions during the litigation, the distinction is immaterial. See id. at 158.
c. Intentional interference with contractual relations. This counterclaim alleges that, by seeking to reach and apply the payments received by the defendant through his divorce, the plaintiff tortiously interfered with the defendants rights under his divorce agreement. To succeed on such a claim, the defendant would have to prove, among other things, that the plaintiff interfered with the defendants contractual relationship in a way that was “improper in motive or means,” Psy-Ed Corp. v. Klein, 459 Mass. 697, 715 (2011), and that the defendant suffered damages as a result, see Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 397 (1996). The defendant has no reasonable expectation of proving either of these elements, even assuming that the litigation privilege would not foreclose relief. The “means” of interference alleged -- the filing of motions to secure the money the plaintiff believed she was owed -- was not improper and, indeed, was ultimately successful. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816-817 (1990) (tort of intentional interference requires showing of wrongful conduct, such as threats, misrepresentation of facts, or defamation). The defendant also suffered no cognizable damages as a result of the plaintiffs efforts to reach and apply the payments. Summary judgment was thus proper.
2. Attorneys fees. The defendant argues that the judge should not have awarded the plaintiff any attorneys fees given the litigation conduct of her counsel. We review an award of attorneys fees for abuse of discretion and will reverse the judges decision “only if it is clearly erroneous.” WHTR Real Estate Ltd. Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229, 235 (2005).
Here, the judge expressly considered the conduct of plaintiffs counsel in determining an appropriate fee award, including his refusal to discuss settlement and his consistent pursual of remedies that went beyond what was authorized by the settlement agreement. In light of what the judge deemed “wasteful” conduct, he reduced the plaintiffs requested fees from $126,922.50 to $89,470.94, and then further reduced that amount by half to $44,735.47. The judge “was in the best position to determine how much time was reasonably spent on [the] case, and the fair value of the attorneys services,” and he thoroughly outlined the history of the litigation and explained the basis for his decision. Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993). We see no abuse of discretion.
The plaintiffs cross appeal. 1. Motions to amend complaint. In June 2019 and April 2020, the plaintiff filed motions to amend her complaint to add G. L. c. 93A claims against the defendant and his counsel, respectively. The judge denied the motions on grounds of futility. See Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004) (judge has discretion to deny motion to amend where claims would be futile). The plaintiff seeks review of the judges decision but has not included copies of the motions in the record appendix, as was her obligation.
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See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). On this basis alone, we could affirm. See Hasouris v. Sorour, 92 Mass. App. Ct. 607, 610 n.4 (2018).
Nonetheless, we have reviewed the judges decision and discern no abuse of discretion. The proposed c. 93A claims, as described by the judge, allege that the defendant intentionally breached the settlement agreement and then with counsels assistance employed litigation tactics, such as filing counterclaims, to delay the plaintiffs recovery. The judge correctly determined that the defendants breach of the agreement did not, without more, rise to the level of unfair or deceptive conduct. See Beverly v. Bass River Golf Mgt., Inc., 92 Mass. App. Ct. 595, 606 (2018).
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Likewise, the judge was within his discretion to conclude that the defendants litigation conduct did not amount to a c. 93A violation. Generally, “litigation conduct alone is not a sufficient basis for a c. 93A claim.” Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 552 (2018). While acknowledging that a course of conduct beginning before litigation might give rise to a c. 93A claim, the judge found that the defendant did not engage in a “continuous course of bad conduct” and that “the bulk of delays in this case were caused by” the plaintiffs own litigation tactics. The judge, who was intimately familiar with the history of the case, was within his discretion to so find.
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The judge also properly concluded that the proposed c. 93A claim against defendants counsel would be futile. The plaintiff had no commercial relationship with defendants counsel predating litigation, and counsels actions during the litigation did not constitute trade or commerce within the meaning of c. 93A. See Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 564 (2008). Moreover, it is now clear that the litigation privilege would protect counsels litigation conduct. See Bassichis, 490 Mass. at 158.
2. Attorneys fees. We discern no abuse of discretion in the award of attorneys fees for the reasons stated above. “The party seeking attorneys fees bears the burden of showing that the amount sought is reasonable.” WHTR Real Estate Ltd. Partnership, 63 Mass. at 235. The judges analysis was detailed and thorough, and he was not obliged to make any more specific findings, to the extent the plaintiff argues otherwise. See id. at 237. The judge was also within his discretion to deny the plaintiffs motion to reconsider, which did not provide any new information in support of the fees request.
Appellate attorneys fees. Paragraph 22 of the settlement agreement provides that “[t]he prevailing party shall be entitled to attorneys’ fees and costs relating to any action to enforce this agreement.” Because portions of this appeal are related to enforcing the agreement, the plaintiff is entitled to reasonable attorneys fees, limited to the work necessary to defend the defendants appeal, and not including any work devoted to the plaintiffs cross appeal. Thus, within fourteen days following the date of this decision, the plaintiff may file an application for appellate attorneys fees and costs in accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004); the defendant shall have fourteen days to respond.
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Judgment affirmed.
Order dated October 28, 2020, denying plaintiffs motion for reconsideration affirmed.
FOOTNOTES
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. The plaintiff also filed a claim for contempt, but that claim is not at issue on appeal.
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. A fourth counterclaim for slander is not at issue on appeal.
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. In his August 2020 decision, the judge noted that the plaintiff failed to explain in her summary judgment motion why she was entitled to judgment as a matter of law on the defendants remaining counterclaims. Nonetheless, the judge addressed the counterclaims to avoid “empaneling a jury to hear claims that cannot succeed.” The defendant argues in his brief that this was error and that the inadequacy of the plaintiffs motion is alone grounds for reversal. As the defendant acknowledged at oral argument, however, no purpose would be served by remand if we agree with the judge that the counterclaims fail as a matter of law on the undisputed facts.
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. The defendant does not dispute the judges characterization.
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. As the judge noted, the bases for the proposed c. 93A claims and “the scope of [the plaintiffs] allegations against” the defendant and his counsel are set out in the motions themselves. The plaintiff did not attach a proposed amended complaint to either motion.
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. The judge found that the plaintiffs motions did not “allege facts and circumstances from which the court could conclude that [the defendant] did more than breach the Settlement Agreement.” Because the plaintiff has not provided us with the motions, she has failed to demonstrate that this was an abuse of discretion.
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. Contrary to the plaintiffs assertion at oral argument, the facts of H1 Lincoln, Inc. v. South Washington St., LLC, 489 Mass. 1 (2022), are not analogous to those here. Among other distinctions, that case involved a course of unfair and deceptive conduct that occurred largely outside the context of litigation. See id. at 14-17, 19.
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. To the extent we have not specifically addressed any of the parties’ arguments, we have reviewed them and see no grounds warranting relief.