In Diprio v. Ground Up Constr., Inc., the Massachusetts Appeals Court considered the appropriateness of an award of attorneys' fees to pro se litigants—homeowners who sued a contractor for violating a Massachusetts Home Improvement Contractor Statute (HICS)—and the proper measure of damages under 93A, Section 9. At trial, a jury found that (i) the plaintiff homeowners breached their home improvement contract and (ii) the contractor breached the HICS—each causing damages for the same amount and effectively “canceling out” the payment of damages. However, the trial court concluded that the contractor's violation of the HICS violated Chapter 93A, Section 9 and awarded attorneys' fees to the pro se homeowners.
The trial court's attorney fee award focused on fees incurred before the pro se homeowners' counsel withdrew from the case. However, as the award was based on a factual issue that had some record support, the Appeals Court did not vacate the award and factual finding that the fees were incurred “in connection with said action” as Section 9(4) requires.
As to damages, the Appeals Court disagreed with the homeowners' assertion that the trial judge erred in ascertaining the base damages on which to calculate multiple damages under Section 9. According to the homeowners, the trial judge should have multiplied their damages using the total amount of the judgment entered and not using the single damages figure the jury determined. As the Appeals Court explained, however, the judgment amount included prejudgment interest and attorneys' fees, which are not elements of damages under Section 9(4).
This case demonstrates that parties and counsel should consider each element of damages when seeking and defending against Chapter 93A claims to avoid improper multiplication of amounts that are not properly included in a multiple damages award. Specifically, when considering multiple damages, a court should calculate interest on the single damages award only (absent some claim that fees and costs should be damages), and then add the interest and fees to the single damages once they are multiplied. That way, interest and fees are not inappropriately inflated by a multiple damages finding.
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