GREEN PARADISE SERVICES, LLC & Another v. HATCH LANDSCAPE & DESIGN, INC. & Others.

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

23-P-1188

GREEN PARADISE SERVICES, LLC & another1

vs.

HATCH LANDSCAPE & DESIGN, INC.2 & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A general contractor, Hatch Landscape & Design (Hatch),

hired a subcontractor, Green Paradise Services (Green Paradise),

to clear snow and ice at various businesses. Although Green

Paradise performed its contractual obligations throughout the

winter season, Hatch paid it only a fraction of what it was

owed. After Hatch ignored repeated requests for payment, as

well as a G. L. c. 93A demand letter, Green Paradise filed suit.

Following a trial in the Superior Court, the jury found Hatch

1 Bruno Amaral did not participate in this appeal.

2 Formerly known as The Hatch Group, Inc.

3Jared Hatch and Robert Hatch did not participate in this
appeal.
liable for breaching the contract and violating G. L. c. 93A,

§ 11, and the judge subsequently awarded Green Paradise

attorney's fees and costs under c. 93A, § 11. On appeal, Hatch

does not challenge the jury's verdict as to the contract claim,

but argues that because the evidence was insufficient to

establish its liability under c. 93A, § 11, its motions for a

directed verdict and judgment notwithstanding the verdict should

have been allowed as to that claim. We agree and, accordingly,

reverse so much of the corrected judgment as awards Green

Paradise double damages, attorney's fees, and costs under

c. 93A.

Background. In summarizing the facts that the jury could

have found at trial, we draw all reasonable inferences in favor

of the plaintiff, Green Paradise. See Haddad v. Wal-Mart

Stores, Inc., 455 Mass. 91, 94 & n.5 (2009).

Hatch and Green Paradise entered into a contract in

November 2018. Under its terms, Green Paradise would perform

plowing and deicing services for some of Hatch's customers

during the 2018-2019 winter, Hatch would be invoiced, and Hatch

would pay Green Paradise within forty-five days of each invoice.

Green Paradise invoiced Hatch for services provided at twelve

locations throughout the winter. Although Hatch paid Green

Paradise $9,415 in response to some invoices issued at the start

of the season, it did not pay $90,717 on the remaining invoices.

2
Bruno Amaral, Green Paradise's owner, testified that he

repeatedly contacted Hatch's office by e-mail and phone seeking

full payment of the remaining invoices, but was told that only

Jared Hatch, Hatch's owner, could approve payment to Green

Paradise and that he had not done so. Amaral further testified

that neither Hatch nor its customers ever complained about Green

Paradise's performance or the quality of its services.

In his testimony, Jared Hatch confirmed that Hatch had been

fully paid by its customers and that none of the customers had

complained about Green Paradise's work. He maintained that

Green Paradise breached its contractual obligation because it

did not use a global positioning system (GPS) tracking device or

a mobile application while performing its services, and he

suggested that Green Paradise overbilled for its time and

services on various jobs. He conceded, however, that he never

brought those concerns to Green Paradise's attention, and he had

no records showing that any other Hatch employee did either.4

At the close of evidence, Hatch moved for a directed

verdict, which the judge denied. Answering a special verdict

form, the jury found that Green Paradise substantially performed

4 Amaral testified that Hatch never provided GPS devices to
Green Paradise, despite multiple requests for them, and a former
Hatch employee testified that some subcontractors did not
receive the devices because they did not work properly.

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its obligations under the contract, and that Hatch breached the

contract and also committed an unfair or deceptive act or

practice in violation of c. 93A, § 11. The jury awarded Green

Paradise $80,000 in contract damages and awarded double damages

for the c. 93A violation. Hatch then moved for judgment

notwithstanding the verdict, which was also denied. In a

separate decision and order, the judge granted Green Paradise's

request for reasonable attorney's fees and costs under c. 93A,

§ 11. A corrected judgment ultimately issued awarding Green

Paradise $80,000 in contract damages; $80,000 in double damages

under c. 93A, § 11; $72,434 in attorney's fees and costs; and

interest.

Discussion. "When reviewing the denial of a motion for

directed verdict or judgment notwithstanding the verdict, we

apply the same standard as the trial judge." Parsons v. Ameri,

97 Mass. App. Ct. 96, 105 (2020). We "construe the evidence in

the light most favorable to the nonmoving party and disregard

that favorable to the moving party." O'Brien v. Pearson, 449

Mass. 377, 383 (2007). "Our duty in this regard is to evaluate

whether 'anywhere in the evidence, from whatever source derived,

any combination of circumstances could be found from which a

reasonable inference could be made in favor of the

[nonmovant].'" Id., quoting Turnpike Motors, Inc. v. Newbury

Group, Inc., 413 Mass. 119, 121 (1992).

4
On appeal, Hatch does not dispute that it breached the

contract by failing to fully pay Green Paradise for the services

it performed. Hatch also violated the provision in the contract

that required it to pay invoices within forty-five days and

prohibited it from withholding payment for longer than sixty

days "unless there is a dispute over [a] specific invoice." The

only question is whether Hatch's conduct also amounted to a

violation of G. L. c. 93A, § 11. In determining whether a

defendant engaged in unfair or deceptive conduct in violation of

c. 93A, § 11, we avoid "uninstructive phrases" such as "level of

rascality" and "rancid flavor of unfairness," and instead "focus

on the nature of challenged conduct and on the purpose and

effect of that conduct" (quotations omitted). Massachusetts

Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 43

(1995).

It is well established that "a breach of contract, even if

intentional, does not in itself amount to an unfair act or

practice under G. L. c. 93A, § 11." H1 Lincoln, Inc. v. South

Washington St., LLC, 489 Mass. 1, 20 n.13 (2022). See Pepsi-

Cola Metro. Bottling Co. v. Checkers, Inc., 754 F.2d 10, 18 (1st

Cir. 1985), citing Whitinsville Plaza, Inc. v. Kotseas, 378

Mass. 85, 100-101 (1979) ("mere breaches of contract, without

more, do not violate chapter 93A"). Rather, an "additional

factor" is needed to establish liability under c. 93A. H1

5
Lincoln, 489 Mass. at 17 n.12, quoting Atkinson v. Rosenthal, 33

Mass. App. Ct. 219, 226 (1992).

A c. 93A claim may arise from a breach of contract if the

breach is "in disregard of known contractual arrangements" and

intended "to secure benefits for the breaching party."

Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 474

(1991) (quotation omitted). For example, a party may violate

c. 93A if it uses "breaches of contract, or threatened breaches,

as leverage to extract additional benefits not covered by the

contract." H1 Lincoln, 489 Mass. at 15. In H1 Lincoln, a

landlord violated c. 93A by intentionally breaking the terms of

the lease in an attempt to force the lessee to sell a different

property to the landlord for one dollar. Id. at 7-8, 17. In

other cases, liability under c. 93A was found where the

defendant withheld performance without justification in an

attempt to renegotiate the terms of the parties' relationship.

See Anthony's Pier Four, 411 Mass. at 461-462, 474-476

(withholding of architectural approval in order to extort

renegotiation of financial terms of joint development project

found to violate c. 93A); Pepsi-Cola, 754 F.2d at 17-19

(customer withheld payment to distributor as leverage in

bargaining to receive more product in future).

In this case, there is no evidence that Hatch withheld

payment to force Green Paradise "to do what otherwise it could

6
not be legally required to do." Pepsi-Cola, 754 F.2d at 18.

Hatch did not attempt to extort Green Paradise into providing

additional benefits not covered by the parties' contract. Nor

did Hatch attempt to renegotiate the terms of their contractual

relationship. Green Paradise argues that Hatch's refusal to pay

was an attempt to pressure it into accepting "cents on the

dollar for its work." The record is devoid of evidence,

however, that Hatch had sought to impose "new and adverse

contract terms," such as a lower rate of payment for Green

Paradise's work. See H1 Lincoln, 489 Mass. at 16, citing Full

Spectrum Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d

666, 674 (1st Cir. 2017). See also Community Bldrs., Inc. v.

Indian Motorcycle Assocs., Inc., 44 Mass. App. Ct. 537, 557-559

(1998). To the contrary, despite repeated inquiries from Green

Paradise, Hatch did not provide any explanation regarding its

refusal to pay the remaining invoices.5 An intent "to extract

additional benefits not covered by the contract" cannot be

reasonably inferred where the defendant did nothing more than

breach a contract and refuse to say why. H1 Lincoln, supra at

15.

5Because Hatch did not offer evidence that it notified
Green Paradise about its purported overbilling or any other
issue involving its performance, we reject Hatch's argument that
it should not have been held liable under c. 93A, § 11, due to
"a legitimate dispute over the value of [Green Paradise's]
services."

7
Nor can c. 93A liability be inferred from the fact that

Hatch paid Green Paradise for its services at the start of the

winter season. Green Paradise argues that the jury could have

reasonably inferred that "those initial payments constituted a

ploy to induce Green to continue to plow that winter," and

Amaral testified that he stopped pursuing work from other

potential customers after entering into the contract with Hatch.

To establish a c. 93A claim, however, a party's extortionate

conduct must arise from its breach or threatened breach of a

contract, not from its initial compliance with the contract.

See H1 Lincoln, 489 Mass. at 15.

To be sure, the evidence at trial established that Hatch's

violation of its contractual obligations was knowing,

unjustified, and harmful to Green Paradise. As the judge

observed in denying Hatch's motion for judgment notwithstanding

the verdict, Hatch was "paid substantially more than the

plaintiff billed for those jobs, yet . . . retained the full

payment without paying the plaintiff for [its] work," and it

withheld payment without informing Green Paradise "of any

discrepancy or other reason why." Nevertheless, those actions,

however unseemly, do not rise "to the level of 'commercial

extortion' or a similar degree of culpable conduct" required for

a c. 93A violation (quotation omitted). Zabin v. Picciotto, 73

Mass. App. Ct. 141, 169 (2008).

8
Because, even when all reasonable inferences are drawn in

Green Paradise's favor, the evidence was insufficient to

establish a violation of c. 93A, § 11, the jury's verdict and

award of double damages on that claim must be reversed.

Furthermore, because the judge based her award of attorney's

fees and costs to Green Paradise on the jury's finding that

Hatch committed an unfair or deceptive act or practice in

violation of c. 93A, § 11, that award must also be reversed.

Conclusion. So much of the corrected judgment as awarded

double damages, attorney's fees, and costs under the plaintiffs'

c. 93A claim is reversed. The corrected judgment is modified to

dismiss the plaintiffs' c. 93A claim, and, as so modified, the

corrected judgment is affirmed.

So ordered.

By the Court (Meade,
Hershfang & Toone, JJ.6),

Clerk

Entered: October 10, 2024.

6 The panelists are listed in order of seniority.

9