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|By Gillian Smith|
|Wednesday, September 25, 2013 11:46 AM|
The town of Duxbury has been ordered by Middlesex Superior Court to pay $325,000 in attorney’s fees and costs as a result of the lawsuit with Johnson Golf, Inc.
Middlesex Superior Court denied the Town of Duxbury’s post trial motions to alter and amend the judgment under Chapter 93A and opposition of paying Johnson Golf’s attorney’s fees.
After the jury verdict, the Town moved for judgment notwithstanding the verdict or to alter and amend the judgment on the 93A claim that the town acted unfairly. Additionally, the Town opposed Johnson Golf’s application for attorney’s fees and costs. The decision detailed the reasons why the defendant’s motions were denied and the plaintiff’s application for fees and costs were allowed in part and denied in part.
Judgment notwithstanding the verdict is a motion that may be made by a party who had previously moved for a directed verdict, or order to return a particular verdict, and been denied. The judge must, by taking into account all of the evidence that is most favorable to the plaintiff, determine whether the jury reasonably could return a verdict for the plaintiff.
The town made three arguments in support of amending the Chapter 93A decision. First, they argued the town did not engage in trade during the bid solicitation under Chapter Chapter 30B. Second, they said Chapter 93A could not apply because Johnson Golf must pursue a remedy under 30A. Third, they argued the town is entitled to sovereign immunity, as governmental entities are immune from suit under Chapter 93A.
In the decision, Judge Kenneth Desmond wrote that currently, “no appellate case in the Commonwealth has squarely addressed the issue of whether a municipality may in some circumstances be subject to liability under (General Laws) c. 93A.”
Additionally, Judge Desmond said the town’s ownership of the golf course does not relate in any way to governmental activity. He said the town stood to earn a profit from the course and is not linked to any of its municipal responsibilities.
He wrote, “…as this Court sits today, in the absence of definitive guidance from the appellate court, this Court will not conclude that municipalities acting in a business context are not amenable to suit under G.L. c. 93A.”
The town also contended there was a remedy available for Johnson Golf under 30A. However, the presiding judge decided the defense did not give sufficient support to that cause, citing cases that were not entirely relevant to the case at hand. Judge Desmond also said, “no appellate case in the Commonwealth has ruled on whether c 93A constitutes an implicit waiver of sovereign immunity, effectively negating the town’s final reason for entering a judgment not withstanding the verdict.
Under the town’s claim that the verdict under 93A cannot stand because of a lack of evidence to support a conclusion that the defendant’s role was unfair or deceptive. Judge Desmond wrote that the evidence “fully support” the jury’s verdict.
“Duxbury officials repeatedly lied to the Court, the Inspector General and others concerning the person or persons who drafted the RFPs and included language about “comparable business enterprise,” Desmond wrote. “Duxbury lied about qualifications of CALM Golf to justify an award to a company without any assets or the required experience to be considered for an award.”
The Court ordered the town’s motion for judgment notwithstanding the verdict be denied, the town’s motion to alter and amend the judgment on the General Laws Chapter 93A be denied, and Johnson Golf’s petition for attorney’s fees and costs be allowed in the amount of $325,000.