I have a small business and had a contract with a Massachusetts company to perform landscaping work outside our building. I paid them nearly a couple thousand dollars to perform some specific landscaping jobs and they have not done them all. The area looks like a dump and they won’t give me my money back so I can hire someone else.
You definitely have a claim against the landscaping company for breach of contract. You can also bring a claim against the landscaping company for M.G.L. c. 93A, but you will need to make out a prima facie case and prove the elements of a M.G.L. c. 93A case. As your business hired the landscaping company, your claim is a business to business dispute which would fall under M.G.L. c. 93A Sec. 11. As such, you are not required to send a M.G.L. c. 93A demand letter prior to filing suit (i.e. you are required under M.G.L. c. 93A Sec. 9: individual v. business), but it is often desirable to do so. You must also show that the landscape company is in the trade or commerce in Massachusetts, that it committed an unfair and deceptive act or practice and that as a result of the act your business was caused damage. Unfair and deceptive conduct is not defined by M.G.L. c. 93A, but you will have to show more than a typical garden variety breach of contract. Typically, you will need to show that the practice engaged in by the landscape company is immoral, unethical, oppressive or unscrupulous. In most cases, the defendant, landscape company, will have a story to tell as to why they do not owe you the money back and then it is up to the court to determine whether the landscape company engaged in unfair and deceptive trade practices. If you prevail on your M.G.L. c. 93A count, you would be entitled to reasonable attorney fees and costs, but not necessarily triple damages. M.G.L. c. 93A Section 11 provides that if you prevail “recovery shall be in the amount of actual damages; or up to three, but not less than two, times such amount if the court finds that the use or employment of the method of competition or the act or practice was a willful or knowing violation of section two.” As such, you need to prove that the landscaper’s unfair or deceptive act was “willful and knowing.” Also, the landscaper can avoid multiple damages by tendering a reasonable offer of settlement with the answer to the complaint or prior thereto. The standard to prevail on a M.G.L. c. 93A count is difficult and your damages are only a couple thousand dollars. You will need to be careful that your attorney fees do not exceed the amount that you recover if you do not prevail on your M.G.L. c. 93A count. Also, you should make a determination as to whether the amount is collectable even if you do win. This may be a situation where you would file a small claims case in an attempt to control the cost of litigation.
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