12/30/2003

Posted By: Corwin & Corwin LLP

Court: MASSACHUSETTS APPEALS COURT
Citation: 60 Mass.App.Ct. 1110
Parties: Edward F. ZANIBONI,1 v. J.S. LUIZ, THIRD, INC., & another.2
Docket No.:  No. 02-P-1127
Decision Date: Dec. 30, 2003

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff subcontractor, Edward F. Zaniboni, commenced this action against a general contractor, J.S. Luiz 3rd, Inc. (Luiz), and a surety, United States Fidelity & Guaranty Company (USF & G), seeking recovery for labor and materials that Zaniboni had furnished on a public building contract. In a separate count, Zaniboni sought damages against Luiz alone for a violation of G.L. c. 93A. After a bench trial, a Superior Court judge made detailed written findings and ruled in favor of Zaniboni on all counts. See Record Appendix Tab 5. The judge awarded damages to Zaniboni in the sum of $13,384.02 (single recovery on contract and quantum meruit counts) as against Luiz.

The judge ruled that USF & G was liable, jointly and severally, for the full amount of the compensatory damage award, pursuant to its statutory bond and in accord with > G.L. c. 149, § 29. See Record Appendix at Tab 9. On the c. 93A claim, the judge ruled Luiz had committed an intentional breach of contract by withholding money from Zaniboni in an effort obtain an unfair economic advantage over him, which constituted an unfair and deceptive trade practice in violation of the statute. The judge awarded Zaniboni the $2,901, which had been withheld by Luiz, on a finding that Luiz's violation was wilful and knowing.3 See Record Appendix at Tab 5, p. 19; & Tab 9. The judge awarded attorney's fees and costs to Zaniboni, as is reflected in the final judgment (Tab 9).

On appeal, Luiz and USF & G argue the judge misconstrued the governing law, and erred in finding Zaniboni had established a prima facie case for payment under the terms of the subcontract. See Appellants' brief at 11. Luiz and USF & G also say the judge abused his discretion in awarding damages under c. 93A. Id. at 13. 4

The appellate argument of Luiz and USF & G, as to either aspect of the challenged judgment, is conclusory and not persuasive. > (FN5) The judge's findings, not being shown to be clearly erroneous, must be accepted, and, as such, support his legal rulings. See, e.g., > Aerostatic Engr. Corp. v. Szczawinski, 1 Mass.App.Ct. 141, 145, 294 N.E.2d 521 (1973); > Frank Fitzgerald, Inc. v. Pacella Bros., Inc., 2 Mass.App.Ct. 240, 242, 310 N.E.2d 379 (1974), on the contract and quantum meruit counts; and > Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 474, 583 N.E.2d 806 (1993); > Atkinson v. Rosenthal, 33 Mass.App.Ct. 219, 226, 598 N.E.2d 666 (1992), on the c. 93A claim.

The judgment is affirmed.

So ordered.

1. Doing business as Zander Corporation.
2. United States Fidelity & Guaranty Company.
3. The judge did not double the c. 93A award so as to avoid duplication of compensatory damages (which necessarily included the sum mentioned).
4. Much argument is devoted by Zaniboni to demonstrate the untimeliness of USF & G's appeal. See Appellee's brief at 17-22. Zaniboni does so needlessly, however, because, indulging USF & G on the question of timeliness, there is in the end no merit to the latter's appeal on any substantive ground.
5. As to the propriety of either the judge's ruling on Luiz's claim for a back charge, and the award of attorney's fees, the appellants' arguments are cursory and unsubstantiated, and thus, do not meet the standard required by > Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).