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March 2, 2026 Get Citation Alerts Download PDF Add Note

FAMILY BEHAVIORAL HEALTH INC. v. 387 MAIN STREET REALTY TRUST & Another.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-0443

• Precedential Status: Non-Precedential

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.3K)

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Combined Opinion

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

24-P-443

FAMILY BEHAVIORAL HEALTH INC.

vs.

387 MAIN STREET REALTY TRUST & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendants,

387 Main Street Realty Trust (trust) and Raymond Bonneville,

were found liable to the plaintiff, Family Behavioral Health

Inc., for breach of contract, interference with advantageous

business relations, and unfair or deceptive trade practices in

violation of G. L. c. 93A. Judgment entered in favor of the

plaintiff. The defendants appeal. Because the issues raised in

the defendants' brief are thoroughly waived, and in any event

lack merit, we affirm.

Discussion. In their brief, the defendants essentially

attack the sufficiency of the evidence that they committed a

1 Raymond Bonneville.
breach of the lease agreement with the plaintiff, that they

intentionally interfered with the plaintiff's business

relationships, and that they engaged in unfair or deceptive

business practices. The defendants, however, did not move for a

directed verdict on any of these claims. Put simply, "[a]n

appellate court cannot review the sufficiency of the evidence in

the absence of an effective motion for a directed verdict."

Martin v. Hall, 369 Mass. 882, 884 (1976). See R.W. Granger &

Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 74 (2001)

(where defendant argued for first time in postjudgment motion

that evidence did not support finding c. 93A violation, "the

point was not raised before the trial judge prior to the entry

of judgment, and is therefore not properly before us"). The

defendants' claims regarding the sufficiency of the evidence

have therefore been waived.

The defendants also argue that the damages award was

excessive. They have doubly waived this claim. First, although

the defendants argue in their brief that the judge should have

struck the testimony of the plaintiff's damages witness as

unreliable expert testimony, the defendants did not object to

the witness's testimony at trial. "[I]ssues not raised below

cannot be argued for the first time on appeal." Boss v.

Leverett, 484 Mass. 553, 562-563 (2020). Second, the defendants

2
failed to challenge the damages award in a new trial motion.2

"Questions concerning inadequate or excessive damages are

initially within the discretion of the trial judge and should

ordinarily be raised by bringing a motion for a new trial."

Pridgen v. Boston Hous. Auth., 364 Mass. 696, 715 (1974). By

failing to bring such a motion, the defendants forfeited any

argument that the award of damages was excessive or against the

weight of the evidence. See Shafir v. Steele, 431 Mass. 365,

371 (2000).3

Try as they may, the defendants may not avail themselves of

the excuse that trial counsel's failure to preserve these issues

or otherwise challenge the plaintiff's proof was the result of

"inefficiency" and "inadequate representation." "Such a claim

is not a basis for a collateral attack on a civil judgment,

where a litigant's sole recourse for his attorney's negligence

2 The docket entries reflect that the defendants filed, and
later withdrew, a motion to remit. In any event, as the
defendants did not include a copy of that motion in the record
appendix, we need not consider it. See Parks v. Johnson, 46
Mass. App. Ct. 905, 906 (1998) (appellant has burden to provide
"an adequate record demonstrating that the issues had been
preserved").

3 The defendants' argument that "there is still an
independent basis for reversing the judgment," based on the
verdict being "excessive and against the weight of the
evidence," misses the mark. Every case the defendants cite for
this proposition involved appellate review of claims that had
first been raised before the trial judge in an appropriate
postverdict motion.

3
is an action for malpractice." Commonwealth v. Patton, 458

Mass. 119, 124 (2010).

Even if the defendants' arguments had been properly

preserved at trial -- and setting aside the fact that many of

their claims on appeal are unsupported by legal authority and

thus are further waived as not rising to the level of appellate

argument, see Kellogg v. Board of Registration in Med., 461

Mass. 1001, 1003 (2011); Andover v. Energy Facilities Siting

Bd., 435 Mass. 377, 394 (2001) -- they are meritless. Had the

defendants filed a motion for a directed verdict, we would

construe the evidence in the light most favorable to the

plaintiff and disregard evidence favorable to the defendants.

See O'Brien v. Pearson, 449 Mass. 377, 383 (2007). "A jury

verdict will be upheld so long as 'anywhere in the evidence,

from whatever source derived, any combination of circumstances

could be found from which a reasonable inference could be drawn

in favor of the plaintiff.'" Brewster Wallcovering Co. v. Blue

Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 595 (2007),

quoting Tufankjian v. Rockland Trust Co., 57 Mass. App. Ct. 173,

178 n.9 (2003). The evidence, so viewed, amply supported the

judgment.

The plaintiff provides medical services to "highly

sensitive" clients, predominantly children, with autism spectrum

4
disorder and other developmental disabilities. The plaintiff

entered into an agreement with the trust to lease a medical

office located in Oxford. Bonneville signed the lease as the

sole beneficiary of the trust as the landlord of the leased

premises. The lease set forth the plaintiff's right to quiet

enjoyment of the premises and required the plaintiff to permit

the landlord, "at reasonable times and upon reasonable prior

notice," to enter the building to make repairs as the plaintiff

deemed necessary. The parties had discussed -- and Bonneville

was aware -- that due to the nature of the plaintiff's business,

he was not permitted to enter the building during business hours

or interact with the plaintiff's clients while on site.

In May 2021, Bonneville entered the leased premises during

business hours to use the bathroom. As he left the building, he

approached one of the plaintiff's clients, an eight year old

girl. He took out his phone, tried to take a photograph of the

girl, and said she was "very pretty." On that or another

occasion, Bonneville also asked one of the plaintiff's employees

what the girl's name was. When the plaintiff raised concerns

about his entering the building to use the bathroom, Bonneville

responded, "Next time I'll just go outside."

The following July, Bonneville was found sleeping in a shed

on the property, in view of the parking lot and the playground,

5
visible to employees, clients, and their families entering or

exiting the building. That same day, an employee saw him

urinating on the side of the building near a door that the

plaintiff's staff and clients used to get to the playground.

Bonneville's disruptive behavior escalated from there. One

employee complained that he made her feel "super uncomfortable,"

and she had to be reassigned to another office location.

Another employee observed him walking around the building and

looking through the windows at the plaintiff's clients. In

response, the plaintiff mounted security cameras on the outside

of the building, which captured Bonneville entering the building

unaccompanied at night, then covering and taking down some of

the cameras. Bonneville also installed his own camera on the

property.

Before these incidents, the plaintiff had planned to expand

its operations to a second location in Auburn. By the time the

Auburn office was ready to accept clients, however, because of

Bonneville's disruptive conduct, the plaintiff was compelled to

wind down operations there and transform its second location

into its primary location.

The plaintiff presented evidence that the business suffered

damages totaling $692,084.47. This amount included $574,084.47

6
in lost profits, $9,000 in overpaid rent, $1,000 from a lost

security deposit, and $108,000 in rent paid.

The defendants argue that Bonneville's interference with

the plaintiff's use of the property was minor, benign, and

unintentional, but the evidence permitted the jury to find that

his conduct was inappropriate and shocking, and that he

willingly refused to desist even when alerted to the safety and

confidentiality concerns associated with the plaintiff's

business. The evidence also permitted the jury to find that the

defendants knowingly and willfully acted in disregard for their

contractual obligations to the plaintiff, warranting multiple

damages under G. L. c. 93A. See Anthony's Pier Four, Inc. v.

HBC Assocs., 411 Mass. 451, 474-475 (1991). And, finally, the

evidence admitted at trial, without objection, substantiated the

jury's calculation of damages.

Conclusion. We affirm the judgment in all respects. In

addition, the plaintiff seeks attorney's fees on the basis that

the defendants' appeal is frivolous, and we allow that request.

See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019).

The plaintiff may file with the clerk of this court materials

detailing and supporting the requested award within fourteen

days of the date of this decision, in accord with the procedure

7
outlined in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The

defendants shall have fourteen days thereafter to respond.

Judgment affirmed.

By the Court (Meade,
Massing & Brennan, JJ.4),

Clerk

Entered: March 2, 2026.

4 The panelists are listed in order of seniority.

8