(papers rustling)
-: SJC 13088, H1 Lincoln Inc. v South Washington Street, LLC.
-: Attorney Cordy, welcome.
-: Thank you, Your Honor.
Good morning to members of the court.
My name is Robert Cordy
and I represent the defendant appellants in this case,
with me is Annabel Rodriquez.
There're two parts to the case
that I would like to address separately.
The breach of contract claim part one,
and the delay claim part two,
both of which involve applications of 93A.
First for context purposes,
let me tell you a little bit about Alfredo Dos Anjos,
who was at the vortex of this storm.
Now in his late seventies,
he came to this country with his family
from Portugal at age 15.
He had had four years of schooling there
and began working at a grocery store at age 12.
His family was very poor.
When he arrived in the U.S. in 1959,
he took two months of schooling to try to learn English
and then went to work in factories in Rhode Island
in order to help support his family
as his father was unemployed.
1965, not yet a citizen,
he was drafted into the armed services
and was sent to Vietnam where he was badly wounded.
When he returned home,
he was awarded six medals for his service there.
He got his factory job back
and several years later was introduced
to the automobile industry by a friend.
He became a salesman and climbed the ladder in the industry
through hard work,
good instincts about people and honor in their dealings.
He eventually owned six different dealerships,
but in his late sixties,
he moved towards retirement
and began to dispose of them while retaining the properties.
Property is very important to him as you will see,
it is the asset he is passionate about preserving
for his children, his grandchildren, and future generations.
(microphone thuds)
Turning to part one,
This court in the Canal Electric Company case,
and in many other cases has been clear and consistent
in holding that liability limitation clauses,
allocating risks and contracts
between sophisticated commercial parties are not contrary
to public policy
and should be honored especially,
where the breach involved is purely a commercial one
and does not affect the public interest, indeed.
-: Counsel, what do we do with the exception
in Canal that says,
we're not talking about willful conduct here.
You know, in Canal, we're talking
about purely commercial garden variety breaches,
but said, you know, when it comes to willful,
we're not going to come forward on that one.
-: But first of all, as I recall,
Canal involves certified questions
and the court is usually very careful.
-: Right, the court specifically said,
willfulness is a different story.
-: Well, maybe a different story.
-: Yeah. -: It didn't really say
what that different story was
and how the distinction would be made,
which is really what this case is, I think.
-: Well, they did say
that the outcome well might have been different,
Justice Abrams wasn't neutral
in making that comment about the issue left open
about a willful dilatory in a slow reputation.
-: I don't think that would be uncommon in answering
a certified question,
not wanting to go too far and really sticking to the facts
of the case.
Certainly after Canal,
there's no question that statutory claims
like 93A are considered consequential damages
and would be included in a provision, limiting such damages.
So as you point out in the question,
most important question is when will
a liabilities limitation clause in a commercial contract,
not being forced to exclude a consequential damages,
including 93A and I have to say, as it is apparent,
it is critically,
it is a critically important question now
that almost every breach of contract claim
these days includes a 93A claim.
So what distinguishes when a limitations clause
and plot can apply
and when should it not apply is critically important.
And I don't think this court has,
first of all, specifically adopted the distinction.
And secondly, given it full definition.
What should the trial court really be looking for
to make the judgment about whether this case,
as they say, in standard register
and the exhibit course,
this exhibit source,
this case sounds in tort?
What does sound in tort mean?
-: Counsel, before you get to that,
can I ask you about this particular limitation
of liability clause?
Attorney Cordy: Sure.
-: Because it's not a limitation of liability clause
for all consequential damages,
it's consequential damages caused by landlord's failure
to perform its obligations under this lease.
So unlike exhibit source and standard register,
it's not a very expansive one.
It's very tailored
and tied to the landlord specific breach of contract.
(keyboard clanking)
-: Well, it is that,
it's certainly not as broad
as some others have been crafted.
I don't know what to say about that other than.
-: Well, I guess the reason I ask is because unlike,
you know, even if we reject
a tort versus contract analysis for 93A,
this particular clause seems tailored
just to the contract breaches and not 93A.
It doesn't say for example,
anything related to the lease hold
limitation of liability for consequential damages period,
it's specific to the breach of contract making it suggest
that something other than contract damages,
consequential damages for other than breach
of contract is not waived.
-: It might be interpreted that way.
It certainly hasn't been the case,
but it essentially,
the damages in this case, are contract damages,
that's what this case is all about.
This is contract damages.
It's a breach of contract, a termination of the contract,
which was found to be a breach by,
and we don't contest that at this point, by any means.
So it is a breach of contract case and the damages.
-: But isn't it more than breach of contract
'cause I'm focused on the extra land,
whatever that other parcel is,
is that- -: Cash land.
-: Excuse me?
-: Cash land. -: Cash land.
-: Cash land,
'cause that's not part of the contract.
It's sort of a getting something for nothing provision.
The idea that they sort of pressure the contract
to get for a dollar,
something they couldn't get for $900,000.
Isn't that different?
That takes us out of,
doesn't that take us into willful or tort
or some other world?
-: I don't think so, Your Honor,
I'll explain why, let me turn to the facts
and circumstances leading up to that,
'cause those are important.
On July 25th, 2017,
Balise submitted the new building demolition notice
and site plan.
Balise, is the Mr. Balise is the owner of stuff, plaintiff.
On July 25th, this new building demolition notice
and site plan containing elevations,
plans for two new buildings
and the joinder of the cash land into the site.
That cash land had been conveyed to Mr. Balise on June 30th,
just a few weeks before this was filed.
Now under Section 2A of the lease,
the Dos Anjos and his team had 15 days
to decide whether to
just reject the plan or to terminate the lease.
It's right there in section 2A of the lease.
15 days from the submission to withhold consent
or terminate the lease.
The relationship went sideways, for sure,
during this period of time,
Mr. Dos Anjos had all kinds of concerns.
Oh, he's an elderly gentleman,
he's trying to preserve his property.
He had all kinds of concerns
about what was going to happen here.
And so a termination letter went out August 9th,
drafted by his attorney, Attorney Manoogian.
After which Mr. Manoogian received calls
after calls after calls from Honda's lawyers,
how can we, what can we do to settle this?
What can we do to resolve this dispute and move forward?
Because the cash lands acquisition by Balise
and its proposed joinder with the Dos Anjos properties
into a single business development plan was at the core
of Dos Anjos upsetness of concerns,
Manoogian suggested that Anjos or to Anjos
that perhaps those concerns might be resolved
if the property was to be conveyed to him
at the end of the lease.
And Dos Anjos at this point responded that,
"Well, perhaps a current acquisition of the land
for a dollar with no increase in the rent
for the next 23 to 43 years of the lease,
which would then include
a much larger footprint might make a difference."
At this point, Dos Anjos they well have been fishing
for a deal as he testified in response
to these lawyers please,
can't we do anything to end this termination?
In any event,
Attorney Manoogian forwarded the proposal language
to Mr. Balise, Honda
with a caveat that Dos Anjos had not yet decided
whether he wanted to go forward at all.
Honda accepted their proposal,
but after a great deal of thought,
Dos Anjos decided he did not trust
or want to do business with Balise.
-: But the 93A fact finding has a different flavor
and tone and tend to it, in fact,
this, the sense that Dos Anjos
at his deposition,
he's just angry after all these years of trying
to get this land,
$800,000, he's looking for it now
that H1 Lincoln and Majestic,
they end up with the cash land
and it might separate him from another tenant.
And he's just,
if you get the flavor from the trial judge on the 93,
he's just angry.
And that there's a sense that this is vindictive.
Is that?
-: Well, he certainly was angry about a number of things.
One of which was that this cash land
all of a sudden appeared on the site plan is owned
by Mr. Balise, for sure.
And that it was going to be consolidated
in a single building development plan, for sure.
It's interesting to note that the complaint filed
in this case alleges
that the termination was because Mr. Dos Anjos wanted
to lease the property to a relative had nothing to do
with extortion or anything of that sort.
That's what they said.
In any event,
Dos Anjos is sticking with the termination walked away
from more than $16 million in rent.
And this offer of the cash land.
He walked away.
He wanted out, he didn't want more.
He wanted out.
That may be a breach of the lease.
Indeed, it was a breach of the lease.
And there might be damages that flow from that.
But that's the fact and I think,
I don't think that.
-: But counsel, that's not the fact, right?
Because that's not what the trial judge found.
The trial judge found different facts.
-: Which facts in particularly?
He found a lot of facts.
-: Well, the ones that it wasn't,
it was about being upset about not getting this deal
and trying to get this for nothing
and that he wasn't do this,
and that's what was the motivation
behind the actions of Dos Anjos.
-: Well, first of all, he terminated the lease
and in response to the lawyer's saying, how can we fix this?
This was proposed, it was accepted.
He didn't want it.
-: But before that though,
there were other things that were brought up
that the trial judge said,
like the issue about the number of buildings
that your client threw that up is one of the reasons
why that he was terminating.
And that even though his lawyer had told him,
this was in the contract from the beginning,
you initialed all the papers.
All of these things went into the kind of the totality
of the factual findings of the trial judge on the 93A issue.
So I guess that's what I'm getting at is that
the judge found something different
than what you're presenting.
-: I think the facts will speak for themselves.
I understand what you're saying.
Let me just say,
cause we're running very close and out of time, two things.
First of all, if this court is to make
a distinction saying tort, contract,
I think it ought to focus on the core of the claims
and the conduct that predominant.
If the core of the claims and the conduct are tortious,
then perhaps that distinction is appropriate.
If not, I mean,
in standard register, we're talking about fraud
in the procurement of the contract.
In the other case,
the exhibit source case where we're also talking
about essentially outside of the contract,
in an effort to steal the property of the other party.
-: I wanna go back
to what Justice Wendlandt was talking about though,
as it relates to the limited
liability contract. -: Uh-huh.
-: Because Canal Electric Company has obviously,
despite Justice Abrams comments at the end,
you passed the case,
but in Canal Electric,
the limited liability has reference
of recovery, whether based on contract
or negligence of any kind
to a strict liability or tort or otherwise.
So obviously, the question gets raised here
with at least with this limited liability.
If we were to adopt Justice Abrams standard,
where did these facts fall into that standard
that we've left open,
the dilatoriness,
the willful dilatoriness of reputation?
Take these facts,
put aside the contract or tort dichotomy.
Attorney Cordy: Uh-huh.
-: And accept what Justice Hayden didn't reach,
but left open that might come out differently if it will,
where a willful dilatoriness or reputation.
What's the answer to that on these facts?
-: Well, surely this was a willful breach,
it was a terminated at willful breach.
It was a termination of the contract.
He knew he was terminating the contract,
beyond that,
is it a 93A?
Isn't a 93A?
If it is a 93A, then the question is,
is all of this primarily tort-based or contract-based?
(paper rustling)
I can't say much about how one interprets the contract
and the clause that Justice Wendlandt pointed out.
But I would like to say one more thing on part two,
just for a minute, if I might.
And that is the delay
in the permitting process.
A couple of things, first of all,
whether the Dos Anjos LLCs
or the Dos Anjos Realty Trust were the title holders
of those properties was a complete non-issue
in the breach of contract case,
first case, complete non-issue.
Secondly, consistent with Dos Anjos desire
in life to preserve assets for his family,
he had hired an estate planning lawyer, Edmund Sweiman.
The lawyer then had set up the LLCs to own, operate
and develop the real estate assets
that were in the real estate trust.
And they did just that,
it was set up in 2008
and they owned, operated and develop the property, Cicerone.
No one understood that the Realty Trust had in fact remained
in place and that what the LLCs owned
were the beneficial interest,
even the judge essentially recognized on page 20
of his findings in the reopened 93A case,
that the true ownership only became fully apparent
to Dos Anjos and his lawyers in June, 2019
after their receipt of the May 31st letter
from Mr. Egans firm,
identifying this ownership disparity
and the need for clarification.
At which point Mintz Levin was contacted,
a beneficiary schedule was provided to the Dos Anjos team.
And the structural reason for the disparity became apparent.
Obviously, subsequent efforts in June of 2019, in July,
to create an option that would preserve the property
in the Realty Trust failed,
and the stipulated to add all the Realty Trust
as defendants on August 15th.
There was no, (chuckles)
as the court also found, Mr. Balise knew from 2016 to 2017,
that indeed the Realty Trust owned this property,
they were the title holders of the property.
In fact, in November of 2017,
just before they filed suit,
he filled out a TIF application in which he averred,
that he was buying the properties from the Realty Trust.
He viewed this as a cleanup matter for the lawyers
to take care of later on,
it was never raised by the lawyers until May 31, 2019,
and then they tried to take care of it.
There's no 93A violation here.
Thank you very much.
-: Thank you.
Okay, Attorney Egan.
(paper rustling)
-: May I please the court,
my name is Jack Egan and with my partner, Michael McDonough,
we represent the plaintiff, H1 Lincoln,
which does business as Majestic Honda.
The court knows (coughs) from the record
that there was an eight-day trial for jury
and then four days of 93A.
-: Can I interrupt you?
Cause I want you to address the last part
of what your opposing counsel said about part two
in the delay.
Wasn't your client on at least inquiry notice
that there was a mess up somewhere along the line
on who the lessor was and who actually owned the land,
why is that a 93A violation?
I don't understand that conclusion.
-: Well, that's merely a piece of this course of conduct,
but my client wasn't some type of due diligence notice
that the record title,
as opposed to the ownership, was in the LLCs.
Clearly we wouldn't have entered into a contract
unless we were told that the LLCs were the owners
and it was a clean up matter, so.
Regardless of what would have happened,
how does it amount to a 93A violation?
Attorney Egan: Well, again, what I was trying-
-: Focusing on part two.
-: I understand.
The 93A violation is just not the misrepresentation
that caused us to be fraudulently induced
into signing the contract.
It also is-
-: I thought part two was post bench trial.
There was additional delay I thought is what
the judge concluded due to the failure of identifying
the correct entity on the permit applications.
-: I misunderstood what you were referring to
as part two. -: Yeah, that's why I thought
I'd clarify, yeah, so. -: I apologize.
You're talking about post the first 93A hearing.
-: Yeah. -: Ruling.
-: Yeah. -: In which the judge found
the title was in the LLC.
-: Right, and I'm jumping to the second 93A
bench trial -: Okay.
And what the judge found
in the second 93A is that the defendants persisted
in that incorrect position
and refused until we inquired,
I believe it was May 31st or something like that
with regard to second title search,
which indicated that
this property was still in the Realty Trust.
-: Right, so we're all clear on the facts.
How is that a 93A violation?
I don't,
you've known, it's your client has known
from the beginning essentially,
that this is the wrong entity.
And then suddenly post trial, in May, they finally say,
"Hey, this is the wrong entity."
Why is, I don't understand why that's a 93A violation.
-: I'm sure I'm not doing a good job of explaining.
That is not the 93A violation.
There's no the 93A violation.
There's multiple facts.
-: It's the huge centerpiece of it, February until May.
The damages are for delay.
Just as Justice Wendlandt is talking about,
and this doesn't come up as an issue until June
and your client knows all about that it's the Trust
and not the LLC. -: Well.
-: I think it's inextricably intertwined
with the delay damages.
-: Well, respectfully by that point in time,
we were 25 months into delay.
The only additional delay that comes from June of 2019,
I believe it is, goes to November 15th of 2019.
So we're already into most of the delay damages,
but more significantly,
what happened during the course of that,
we were reassured by false statements under oath,
by false statements to the jury
that indeed the ownership was in the LLCs.
-: But that's a question of law, right?
You just do a title search.
It's not, I mean, and you guys did a title search
and knew it wasn't, I mean,
and you can just do another title search,
can't you? (chuckles)
-: No, because of the difference
between record title and ownership.
And if you look at the affidavit.
Justice Kafker: Uh-huh.
-: That was filed by the defendants in this case, excuse me,
in opposition to our complaint
and request for a real estate attachment,
you'll see that Mr. Dos Anjos says,
"I have access to private records of the LLCs,"
and he swears
in opposition that the LLCs own the property.
That's pretty fair facts upon
which we were reasonably found to rely.
And remember the trial court,
none of the facts are challenged here.
And the trial court found we released reasonably relied
on these assurance.
Let me go further,
after the affidavit was filed in their answer,
they indicate that the LLCs own the property.
I believe that's a judicial admission.
-: [Justice Wendlandt] Did you allege
that they own the properties?
-: Pardon? -: In the complaint?
-: We pled that they own the property.
That's what we thought. -: Yeah, all right.
-: And they admitted ownership and then they turned around.
-: Can I switch?
Unless my colleagues are still focused on this point.
I find that as sort of a minor distraction,
but I do see your point about that,
and it fits within our case law
that there's been sort of an extortion of the contract
to get the cash land.
And that seemed, I can't remember,
there's a case that says you can't leverage the contract
to sort of pressure something else.
-: That's Anthony's Pier Four.
-: Right, so I'm-
-: You can't. -: That one bothers that,
but are the damages that you're getting related to that?
I mean, it's sort of a weird question,
but I understand you've got $799,000 worth of damage,
whatever for that land,
'cause you shouldn't have had to pay a dollar
for something that, you know,
was whatever, 800, $900,000.
But how does that extortion figure into the way damage?
'Cause almost all of this money is consequential
delay damages, right?
-: Yes.
-: Uh-huh. -: A bulk of it,
the large bulk of it.
-: So if the tort, do you need to connect the tort?
Cause I see a tort here,
if we adopt the appeals court approach,
which is the tort damages are different
than contract damages if we go that route.
-: The trial judge specifically found
in the first 93A opinion
that the misrepresentation with regard
to ownership put us-
-: If he goes on and on about that,
but it seems to me that the real misbehavior relates
to cash land not getting an LLC versus a.
-: Well, I would respectfully disagree,
relying again on fact findings,
the trial judge finds it wasn't just the cash land.
It was the Honda exclusivity language
and it was the conversion of $150,000 deposit.
During that period of time.
-: Well, those are separate basis for finding 93A violations.
But you,
-: Well. -: We could decide, yes.
The trial judge made too much of the LLC issue,
but still find a 93A violation in your favor.
What I'm worried about though is this,
the pressuring to get that land,
which seems to drive everything and blowing up the deal.
-: Well, I would respectfully say not at all
because what Mr. Dos Anjos testified to is once
we gave him the land.
We agreed to the Honda exclusivity.
We agreed to give them the land for a buck.
Justice Kafker: All right.
-: He still said, and I quote, he was fishing for a deal.
Justice Kafker: I thought he was fishing for that deal
or is he fishing that? -: Oh no,
we gave him that deal.
-: Okay, so he's fishing for another deal?
Attorney Egan: He was fishing for another deal,
a better deal. -: Or is that just,
he's camouflaging what he really was,
which is once he got the land, he blew up the whole thing?
-: I'm not sure I understood the question,
-: I guess to me,
if, I find it difficult to find a willful breach of contract
to be a 93A violation in and of itself,
because you break contracts intentionally
as your brother just argued,
but I don't think you're allowed to use the contract
to extort something you're not entitled to.
So I see that,
but what I get lost in is the $5 million in damages,
which are all related to delay damages,
which you wouldn't other,
you wouldn't be allowed to collect that, right?
If there was just a willful,
if it was just a breach of contract,
you couldn't get delay damages, right?
Because of the-
-: Yes we could,
if there were no,
if there was no exclusionary language.
-: (chuckles) But there is. -: And.
-: Let's just deal
with this case. -: Okay, and throughout
the exclusionary language,
if you look at the restatement
and if you look at the holdings of this court
and also of the appeals court is void
as against public policy
because it attempts to insulate
someone for their intentional conduct.
-: No, I mean, the cost of breaching
a contract is breach of contract damages.
And if you have a limitation of liability clause,
that waives, as big boys often do, consequential damages.
You're allowed to do that.
-: Oh, certainly. -: That's not against
public policy. -: You're allowed to do that.
I didn't mean to suggest otherwise,
but you're not allowed to do that
if this is an attempt to shield you from intentional torts.
-: Well, I mean. -: That's the reinstatement,
which this court. -: What do you mean
by intentional tort?
If Mr. Dos Anjos had just said on in July,
I don't want to do this deal anymore.
I terminate the contract.
Attorney Egan: Uh-huh,
We wouldn't got in. -: You wouldn't be allowed
consequential damages?
-: No, but there was an alternative finding
for benefit of the bargaining damages.
And we had to elect,
and the alternative finding was $5.6 million.
We took the lower amount because-
-: [Justice Wendlandt] You wanted the auto road. (chuckles)
-: Because we wanted,
we had made commitments to our manufacturer,
we had made commitments to the town.
-: That's just a business decision,
I understand that but,
-: But- -: You're saying you can't-
you can intentionally breach a contract and not,
and also have a limitation of liability clause.
And that's not against public policy.
-: Respectfully, I disagree.
And I rely on Section 195 of the-
-: But that can't be true though.
-: 'Cause the- -: 'Cause then,
that's the whole purpose of limitation
of liability provision.
-: I can read from Section 195
of the restatement contracts. -: Okay, read away.
-: Which this court has cited, that section.
-: It's just a tort,
that's different as Justice Wendlandt said,
but you can have two big commercial entities can enter
into a contract and limit liability,
even if they intentionally break the contract, can't they?
isn't that what-
-: Sure you can,
but you cannot. -: You cannot,
but what about Canal Electric, isn't that what that is?
-: No, Canal Electric makes a very specific carve-out
with regard to conduct-
-: I'm gonna waive and ask you about the carve-out,
but that's the big picture of Canal Electric is.
-: Two- -: To inform people,
making a deal
like Justice Catherine Wendlandt had been saying,
then go ahead and make have a meeting of the minds.
-: Two things about Canal Electric.
One, there's evidence in the record in Canal Electric,
that the court refers to,
that the language, the exclusionary language is common
in the electric utility industry.
No such evidence in our case.
And the other thing in Canal Electric is the carve-out
which I'm happy to address,
but would simply point out that the judge in this case found
both willful dilatoriness,
and six separate breaches
in his second 93A opinion.
So Canal Electric really supports our position
because it starts from the fundamental point
that the Commonwealth,
as matter of public policy, is not gonna provide.
-: So let's just say, I, for one disagree with you,
assuming that I disagree with you,
what are the damages that flow from the unfair conduct
that forms the basis of the 93A?
-: Those damages that were testified to
and accepted by the court from our experts.
-: How does that different
from the breach of contract damages?
So there's damages, -: That's just-
-: that flow from the breach, right?
Attorney Egan: There are damages that flow
from the breach,
right and they- -: Okay.
And so I'm, my question is,
and I'm sorry to cut you off,
but we are running out of time.
What's the dollar figure tied
to each one of the six to eight misconduct
that you're talking about that the judge found.
-: Well. -: There's $150,000 deposit,
right, that's one,
'cause that was conversion.
What else is there?
-: I guess what I'm struggling with is at least
I hear in the question
that I have to deliver a silver bullet.
And what I'm saying is that this is a course of conduct
over four years.
So improper,
that the defendants
in this case have to invoke their fifth amendment rights.
I'm not trying to tarnish them,
but I point out to the court that when they did that.
-: So if I go through the record, can I do this calculation?
Or is it just gonna be this.
-: I don't think you can. -: Nostalgic totality
of the circumstances,
and they were bad.
And they did it for extortionate reasons
that they didn't get at the end of the day.
And I have to figure out what the numbers, right?
Is that what you're saying?
-: I don't think you can.
-: Yeah, okay.
-: Because- -: Can we at least
Can we at least differentiate
between one specific performance with what was elected?
What the delay damages is and be able to point to X, Y,
and Z for that? -: Yes, you can surely do that.
The trial judge finds,
they were like $172,000 a month based upon the expert.
So, and he finds in his first 93A hearing
that was 21 and a half months.
And then in the second opinion,
he extends that from January, I think,
to the following November.
So certainly there's a unit price
with regard to the delay damages.
(paper rustling)
There's also a waiver issue here at no time,
before the trial, the first trial,
the jury trial.
Was there a request for instruction
on the Canal Electric concept?
The exclusionary language concept?
Was it in their motion for directed verdict?
Was it raised at the charge conference?
Was it raised subsequent to the judges instructions?
There was no objection to the absence of an instruction
on the exclusionary language.
I also want to,
I understand I'm over,
want to simply underscore the exclusionary language,
even if it were to be allowed
in our view does not affect 93A
and is in conflict with the same paragraph
in which previously it says,
that we're entitled to all damages at law
and attorney's fees.
So in conclusion.
-: Can I ask you before you conclude,
is there, was the issue of the limitation of liability
at play at the 93A bench trial?
-: It was raised 41 days after the evidence closed.
I believe I've got the it's in our brief.
41 days after the evidence closed and a motion,
not sure if it was for directed verdict or subsequent.
-: [Justice Wendlandt] Okay.
-: But it had not been raised previously.
And of course it's germane to damages
in the jury trial issue.
-: Well, it's germane to contract damages.
And I thought you were specifically awarded 93A damages.
-: Not from the jury.
-: No, I know. (chuckles)
-: So.
-: You were awarded 93A damages by the judge
in the bench trial during which the issue
of limitation of liability was raised 41 days
after the closing of the evidence.
-: After we had been waived in the jury trial,
when the jury awarded us damages,
based upon the absence of the defendants raising
the exclusionary language.
So in effect, what they're asking is can they resurrect it
after a jury trial in their 93A case.
And our position is they should not be able to do that.
For those reasons,
we respectfully request that the trial judges judgments,
the trial courts judges be affirmed.
-: Thank you.
(paper rustling)