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15-P-171                                               Appeals Court

    CITY OF BEVERLY       vs.   BASS RIVER GOLF MANAGEMENT, INC.,
                                & another.1


                                No. 15-P-171.

           Essex.       November 14, 2016. - January 5, 2018.

             Present:   Sullivan, Maldonado, & Neyman, JJ.


Contract, Municipality, Performance and breach. Municipal
     Corporations, Contracts. Consumer Protection Act, Trade or
     commerce, Unfair or deceptive act. Bankruptcy, Stay of
     other proceedings. Practice, Civil, Directed verdict,
     Amendment, New trial, Instructions to jury. Judgment,
     Amendment.



     Civil action commenced in the Superior Court Department on
March 11, 2011.

     The case was tried before Robert A. Cornetta, J., and a
motion to alter or amend the judgment, or for a new trial, was
heard by him.


     Denis J. Sullivan for the defendants.
     Eitan Y. Goldberg, Assistant City Solicitor (Stephanie M.
Williams, City Solicitor, also present) for the plaintiff.




    1
        31 Tozer Road, L.L.C.
                                                                   2


    MALDONADO, J.   In this case, we consider the propriety of

actions taken by the city of Beverly (city), which owns the

Beverly Golf and Tennis Club (Golf Club), and by Bass River Golf

Management, Inc. (Bass River), which operated the facility for

almost two years pursuant to a management contract with the

city.   On March 11, 2011, the city commenced an action in the

Superior Court against Bass River and 31 Tozer Road, L.L.C.

(Tozer), the guarantor of Bass River's payment obligations to

the city, asserting claims for breach of contract against each

party and seeking damages.   Bass River filed counterclaims

against the city (subsequently amended) which alleged violations

of G. L. c. 93A, breach of contract, breach of an implied

covenant of good faith and fair dealing, breach of warranty, and

conversion.

    Following a trial, the jury, in response to special

questions, found that Bass River had breached its management

contract with the city, that Tozer had guaranteed Bass River's

payment obligations, and that the city was entitled to damages

of $631,969.63.   The jury also found that the city had violated

the covenant of good faith and fair dealing in its contractual

relationship with Bass River, and that the city had converted

Bass River's property.   The jury awarded Bass River damages of

$48,967.33.   Thereafter, the judge determined that Bass River

had not proved that the city violated G. L. c. 93A.
                                                                       3


    Bass River and Tozer filed a motion to amend the findings

of facts and rulings of law, to amend the judgment, or, in the

alternative, for a new trial.    The judge amended the judgment

against Tozer to $600,000, in conformity with the language of

the guaranty.   In all other respects, the motion was denied.     An

amended final judgment entered on October 3, 2014, adding

interest accrued on the damages awarded by the jury, limiting

the judgment against Tozer as guarantor, and dismissing the

parties' remaining claims and counterclaims.    Bass River and

Tozer appealed, contending that the judge erred in (1) denying

their motion for a directed verdict; (2) denying their motion to

amend the judgment or for a new trial; (3) refusing to give, or

improperly giving, particular jury instructions; and (4)

dismissing the counterclaim alleging violations of G. L. c. 93A.

    1.   Background.    The jury could have found the following

facts.   As of January 1, 2005, the city entered into a five-year

management contract with Johnson Golf Management, Inc. (Johnson

Golf), whereby Johnson Golf agreed to manage, control, and

operate the Golf Club, and to collect related fees from permit

holders, in exchange for paying the city $600,000 annually, plus

certain other fees.    At the sole option of the city, the

contract could be extended for an additional five-year term.

    The management contract provided that the city would keep

the Golf Club compliant with all Federal, State, and local laws,
                                                                      4


rules, and regulations.     Johnson Golf was solely responsible for

maintaining and repairing the buildings and the grounds,

including the golf course and the interior of the clubhouse,2 in

keeping with their existing condition.    The city was solely

responsible for maintaining, repairing, and rebuilding the

structural components of the buildings, including the walls,

floors, roofs, and exterior facades.    All work necessary to

protect lives, safety, and the structural integrity of the

buildings was to be performed first, after a review of two

reports prepared by Gale Associates, Inc. (Gale reports), an

engineering and design firm retained by the city to help it

develop a facility maintenance plan and budget.    Thereafter, the

city would determine the order of its maintenance, repair, and

rebuilding projects.

     Over time, the relationship between Johnson Golf and the

city deteriorated.   On April 3, 2008, Johnson Golf agreed to

assign its rights, interests, and obligations under the

management contract to Bass River for $620,750, plus $50,500 for

certain equipment, tools, and fixtures.    Manuel Barros was the

sole owner of Bass River.    Prior to entering into the

assignment, he toured the Golf Club and was familiar with the


     2
       Because the clubhouse was on the State register of
historic places, all interior maintenance had to be done in
accordance with the rules and regulations of the Massachusetts
Historical Commission.
                                                                   5


condition of its clubhouse, including the fact that the second

floor, where a large function room was located, was not

accessible to persons with disabilities.

    To induce the city to execute the assignment with Bass

River, Tozer provided a written guaranty to the city.    It

unconditionally guaranteed full and punctual payment "of all

sums which may be presently due and owing and of all sums which

shall in the future become due and owing to the City from Bass

River."   Among other matters, Tozer also agreed that its

liability was "the lesser of $600,000.00 or such sums as may,

from time to time, be due to the City by Bass River under the

Management Contract."   The guaranty was signed by Barros, as

manager of Tozer.

    Once Bass River started operating the Golf Club, it made

numerous improvements to the facility in an effort to increase

the number of permit holders.    In September, 2008, the city's

mayor sought, and the city council approved, a $1.5 million bond

to pay for capital improvements to the golf course, the

clubhouse, and a maintenance building that needed environmental

remediation.   Architectural and engineering work was initiated,

and repairs were undertaken.    During the time that Bass River

was managing the Golf Club, the city spent approximately

$130,000 on various repairs and improvements.
                                                                       6


     By late 2009, Bass River had fallen significantly behind in

its payments to the city under the management contract, by then

owing the city over $600,000.   The mayor decided not to extend

the contract with Bass River for an additional five-year term,

choosing instead to hire a new manager for the Golf Club.3      When

Bass River failed to pay its arrearage, the present action

ensued.

     2.   Suggestion of bankruptcy.   On November 10, 2016, Tozer

filed a voluntary petition for bankruptcy under Chapter 11 of

the United States Bankruptcy Code.    Tozer then filed a

suggestion of bankruptcy with this court, requesting that the

present appeal be stayed.4   We ordered the parties to submit

supplemental briefs addressing the matter.    In their

supplemental briefs, both parties contend that this appeal

should be stayed as to Tozer, but not as to Bass River.    We

agree.

     The filing of a voluntary bankruptcy petition operates as

an automatic stay of "the commencement or continuation . . . of

a judicial, administrative, or other action or proceeding

against the debtor that was or could have been commenced before

     3
       During the tenure of the new manager, lifts were installed
in the clubhouse to facilitate access to the second floor by
persons with disabilities.
     4
       By agreement dated November 10, 2016, the city sold,
assigned, and transferred all of its claims and interests
against Tozer to Bass River Tennis Corporation for $375,000.
                                                                    7


the commencement of the [bankruptcy] case."5   11 U.S.C.

§ 362(a)(1) (2012).   Section 362 "should be read to stay all

appeals in proceedings that were originally brought against the

debtor, regardless of whether the debtor is the appellant or

appellee."   Association of St. Croix Condominium Owners v. St.

Croix Hotel Corp., 682 F.2d 446, 449 (3d Cir. 1982).    The

purpose of the automatic stay is "to relieve a debtor of

collection proceedings which would nullify the Bankruptcy Code's

objective of orderly liquidations or reorganizations which treat

creditors equally."   Marine Midland Bank v. Herriott, 10 Mass.

App. Ct. 743, 746 (1980).   It is well settled that "proceedings

in violation of the stay are void."   Amonte v. Amonte, 17 Mass.

App. Ct. 621, 624 (1984).

     The automatic stay provisions of the Bankruptcy Code only

apply to a "proceeding against the [petitioning] debtor," not

against others.   11 U.S.C. § 362(a)(1).   See In re Two Appeals

Arising Out of the San Juan Dupont Plaza Hotel Fire Litigation,

994 F.2d 956, 969 (1st Cir. 1993).    "Thus the stay provisions

have been held not to apply to proceedings against a codefendant

of the debtor, . . . against individual partners of the debtor,

. . . or against the guarantors of its debts."    Allegheny Intl.


     5
       We have concurrent jurisdiction with the Bankruptcy Court
to determine the applicability of the automatic stay provisions
of the Bankruptcy Code. See Lombardo v. Gerard, 32 Mass. App.
Ct. 589, 593-594 (1992).
                                                                     8


Credit Corp. v. Bio-Energy of Lincoln, Inc., 21 Mass. App. Ct.

155, 158 (1985).    See In re Furlong, 660 F.3d 81, 89-90 (1st

Cir. 2011) (automatic stay does not extend to assets of

corporation in which debtor has interest, even where interest is

100 percent of stock).

    The present appeal is a continuation of the judicial action

against Bass River and Tozer that was commenced by the city

prior to Tozer's initiation of bankruptcy proceedings.    The

parties assert, and we agree, that none of the exceptions to the

automatic stay provisions, set forth in 11 U.S.C. § 362(b)(1)-

(28) (2012), is applicable in this case.    We also agree with the

parties that, because the automatic stay provisions of the

Bankruptcy Code only apply to Tozer, Bass River's appeal should

proceed.    Tozer's appeal is hereby stayed, and we turn to the

merits of Bass River's arguments.

    3.     Motion for directed verdict.   Bass River contends that

the judge erred in denying its motion for a directed verdict at

the close of the city's evidence.    Bass River argues that the

city failed to show that it satisfied its obligation under the

management contract to ensure that the Golf Club was in

compliance with all Federal, State, and local laws, rules, and

regulations, particularly the regulations of the Architectural

Access Board (AAB), which are designed to make public buildings

accessible to and safe for persons with disabilities.    See 521
                                                                      9


Code Mass. Regs. § 2.1 (2006).      Given that the second floor of

the clubhouse was only accessible by stairs during Bass River's

tenure as manager of the Golf Club, Bass River claims that the

city was in material breach of the management contract which, in

turn, excused Bass River's performance under the contract.

Therefore, Bass River asserts, the judge should have granted its

motion for a directed verdict with respect to the city's breach

of contract claim.   We disagree.

    An appellate court reviews the denial of a motion for a

directed verdict under the same standard applied by the trial

judge.    See O'Brien v. Pearson, 449 Mass. 377, 383 (2007).     We

must "construe the evidence in the light most favorable to the

nonmoving party and disregard that favorable to the moving

party."   Ibid.   "Our duty in this regard is to evaluate whether

'anywhere in the evidence, from whatever source derived, any

combination of circumstances could be found from which a

reasonable inference could be made in favor of the

[nonmovant].'"    Ibid., quoting from Turnpike Motors, Inc. v.

Newbury Group, Inc., 413 Mass. 119, 121 (1992).     A motion for a

directed verdict made at the close of the plaintiff's case will

not survive if the defendant does not renew its motion at the

close of all of the evidence.    See Martin v. Hall, 369 Mass.

882, 884 (1976); King v. G & M Realty Corp., 373 Mass. 658, 659

n.3 (1977).
                                                                  10


     As a preliminary matter, the city argues that Bass River

has waived its right to seek appellate review of the denial of

its motion for a directed verdict because it did not renew such

motion at the close of all the evidence.   We agree.

Notwithstanding the fact that several relevant portions of the

transcript are largely inaudible, there is nothing to suggest

that Bass River renewed its motion for a directed verdict at the

conclusion of the presentation of its own evidence, or that it

attempted to reconstruct the transcript to reflect the fact that

this motion had been made.6   By failing to take such action, Bass

River waived its right to appeal from the denial of its motion.

See Dalrymple v. Winthrop, 50 Mass. App. Ct. 611, 619 (2000).

     Even if that were not the case, we are satisfied that the

city presented sufficient evidence from which the jury could

reasonably conclude that Bass River breached the management

contract.   See Singarella v. Boston, 342 Mass. 385, 387 (1961)

(articulating essential elements of breach of contract claim).

As pertinent here, the jury could have found that, by late 2009,

Bass River had not made all of its required payments under the

contract, owing the city over $600,000.    The jury also could

have found that Bass River's failure to pay was not excused by

an alleged material breach of the management contract by the


     6
       In its reply brief, Bass River does not address this
waiver issue.
                                                                  11


city, namely, its noncompliance with AAB regulations.     See

Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010)

(material breach of contract by one party excuses performance by

other party as matter of law, but whether material breach has

occurred is question of fact).

     Construing the evidence in the light most favorable to the

city, the jury could have determined that the city did not

materially breach the management contract.7   The jury could have

found that, prior to entering into the assignment, Bass River

was aware of the accessibility issue regarding the second floor

of the clubhouse, and had been told by the city's finance

director that the city did not have the monetary resources to

undertake construction work to provide accessibility for persons

with disabilities, but that the city would and did provide a

mechanical device for transporting disabled persons to the

second floor until completion of all repairs mandated by the

management contract.   The jury also could have found that the

management contract did not specify a time frame for the

completion of improvements to the Golf Club, and that the

contract authorized the city to determine "the order of

     7
       In his final charge, the judge instructed the jury that
Bass River "may be excused from making payments to the City if
the City was in material breach of the [parties'] contract," and
that "[a] material breach of an agreement occurs when there is a
breach of an essential and inducing feature of the contract."
See Lease-It, Inc. v. Massachusetts Port Authy., 33 Mass. App.
Ct. 391, 396-397 (1992).
                                                                    12


maintenance, repair, and rebuilding of the structural components

of all buildings."

     In addition, the jury could have found that there was

insufficient evidence to support Bass River's claim that it

suffered financial harm as a consequence of the accessibility

issue.    Finally, the jury could have found that, during Bass

River's tenure as manager, it never filed any complaints with

the AAB alleging that the city, as owner of the Golf Club, had

failed to comply with the regulations governing accessibility

for persons with disabilities.    See 521 Code Mass. Regs. § 2.3.1

(2006).   Bass River filed a complaint only after the city

declined to renew its management contract for an additional

five-year term.   We conclude, therefore, that the judge did not

err in denying Bass River's motion for a directed verdict with

respect to the city's breach of contract claim.8

     4.   Motion to amend the judgment or for a new trial.    Bass

River argues that the judge erred in denying its motion to amend

the judgment, or, in the alternative, for a new trial.    In Bass

River's view, the jury's verdict in favor of the city on its

breach of contract claim was against the weight of the evidence,


     8
       In reaching this decision, we do not intend to minimize
the importance of compliance with AAB regulations but, rather,
confine ourselves to the sole issue whether Bass River can
escape liability on the basis of the city's noncompliance with
those regulations, where it was fully aware of the city's
noncompliance when it contracted with the city.
                                                                     13


and therefore, judgment should have entered for Bass River.

Alternatively, Bass River contends that the judge erred in

denying its motion for a new trial because the verdict for the

city suggested that the jury misunderstood the principle of

contract law that a material breach by one party excuses

performance by the other party.

    A trial judge should set aside a jury verdict in a civil

case only if the judge concludes that "the verdict is so

markedly against the weight of the evidence as to suggest that

the jurors allowed themselves to be misled, were swept away by

bias or prejudice, or for a combination of reasons, including

misunderstanding of applicable law, failed to come to a

reasonable conclusion."   W. Oliver Tripp Co. v. American Hoechst

Corp., 34 Mass. App. Ct. 744, 748 (1993).     This determination

rests in the sound discretion of the judge.    See ibid.   We give

considerable deference to the rulings of a motion judge who also

served as the trial judge in a case.   See Gath v. M/A-Com, Inc.,

440 Mass. 482, 492 (2003).

    Here, we conclude that the judge did not abuse his

discretion in denying Bass River's motion to amend the judgment

or for a new trial.   As previously discussed, the jury

reasonably could have found that the city did not materially

breach the management contract such that Bass River, in turn,

was excused from satisfying its payment obligations.    The judge
                                                                    14


properly determined that the jury's verdict was not against the

weight of the evidence and did not suggest a misapprehension of

contract law principles.

    5.   Jury instructions.    Bass River contends that the judge

erred in two respects with regard to his jury instructions,

thereby causing prejudice.    First, Bass River argues that, over

its objection, the judge refused to instruct the jury that Bass

River could recover out-of-pocket losses incurred as a

consequence of its reliance on the city's representations that

the clubhouse would be made accessible to persons with

disabilities.   Second, Bass River argues that, over its

objection, the judge improperly instructed the jury that if they

found that the city had conferred a benefit on Bass River under

the management contract, then the city was entitled to

reimbursement for such benefit, irrespective of any breach of

the contract by the city.    Given these purported instructional

errors, Bass River claims that it was entitled to a new trial on

its counterclaims against the city.    We disagree.

    "A judge should instruct the jury fairly, clearly,

adequately, and correctly concerning principles that ought to

guide and control their action."    Selmark Assocs., Inc. v.

Ehrlich, 467 Mass. 525, 547 (2014), quoting from Mahoney v.

Gooch, 246 Mass. 567, 571 (1923).     "We review objections to jury

instructions to determine if there was any error, and, if so,
                                                                     15


whether the error affected the substantial rights of the

objecting party."    Hopkins v. Medeiros, 48 Mass. App. Ct. 600,

611 (2000).   "An error in jury instructions is not grounds for

setting aside a verdict unless the error was prejudicial -- that

is, unless the result might have differed absent the error."

Blackstone v. Cashman, 448 Mass. 255, 270 (2007).    A trial judge

has broad discretion in framing the language that is used in

jury instructions.   See Kiely v. Teradyne, Inc., 85 Mass. App.

Ct. 431, 441 (2014).     An appellate court must review the charge

as a whole "to determine whether it is a clear and accurate

statement of the law."     Wilson v. Boston Redev. Authy., 366

Mass. 588, 591 (1975).

     Contrary to Bass River's argument that the judge failed to

instruct the jury on damages for out-of-pocket losses, the judge

did, in fact, instruct on compensatory damages.9    This

instruction apprised the jury that where one party was found to

have engaged in wrongful conduct, the other party was entitled

to recover all the damages that it had suffered, thereby

restoring the status quo, as if the transaction had never

occurred.   Cf. VMark Software, Inc. v. EMC Corp., 37 Mass. App.

Ct. 610, 619 (1994).   We see no error.

     9
       The judge instructed the jury, in part, as follows: "The
purpose of the law in awarding damages is to compensate an
injured party for the loss incurred because of another's breach
of conduct. The object is to try to restore the party to the
position that it would have been in had the wrong not occurred."
                                                                    16


    With regard to the judge's instruction that the city was

entitled to reimbursement for benefits conferred on Bass River,

irrespective of any breach of the management contract by the

city, we must view this statement in the context of the

instruction as a whole.    The judge properly instructed the jury

that if they found that the city was in material breach of the

contract, then they could determine that Bass River was excused

from making payments to the city.   See Prozinski v. Northeast

Real Estate Servs., LLC, 59 Mass. App. Ct. 599, 610 (2003).     The

judge also properly instructed the jury that, absent a material

breach by the city, the jury could award the city damages for

payments owed by Bass River under the contract.   The judge's

subsequent instruction that, "[i]n either case" (emphasis

added), if the jury found that the city had conferred a benefit

on Bass River, then the city was entitled to reimbursement for

the value of such benefit conferred, was erroneous to the extent

that the jury determined that the city had materially breached

the management contract.   Here, however, the jury made no such

determination, finding instead that the city did not breach the

contract.   Accordingly, we conclude that, even if this one

statement by the judge was erroneous, Bass River was not

prejudiced.

    6.   Counterclaim under G. L. c. 93A.    Finally, Bass River

argues that the judge erred in dismissing its counterclaim
                                                                  17


pursuant to G. L. c. 93A, § 11.   In Bass River's view, the judge

incorrectly determined that the city was not engaged in "trade

or commerce" when dealing with Bass River and, further, that

even if the city was so engaged, the city's conduct was not

unfair or deceptive within the meaning of the statute.

    When reviewing the judge's decision, we accept his findings

of fact unless they are clearly erroneous, and we consider his

conclusions of law de novo.   See Anastos v. Sable, 443 Mass.

146, 149 (2004).   "A ruling that conduct violates G. L. c. 93A

is a legal, not a factual, determination."   R.W. Granger & Sons,

Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73 (2001).

    General Laws c. 93A is designed "to encourage more

equitable behavior in the marketplace . . . [and to impose]

liability on persons seeking to profit from unfair practices."

Poznik v. Massachusetts Med. Professional Ins. Assn., 417 Mass.

48, 53 (1994).   Whether a claim under c. 93A can be brought

against a municipality is an unresolved issue.   See Park Drive

Towing, Inc. v. Revere, 442 Mass. 80, 86 (2004) (Park Drive

Towing); M. O'Connor Contracting, Inc. v. Brockton, 61 Mass.

App. Ct. 278, 284 n.8 (2004).   Nonetheless, it is settled that

"a municipality is not liable under G. L. c. 93A when it is not

'acting in a business context,' that is, when it is not engaged

in 'trade or commerce.'"   Park Drive Towing, supra, quoting from

All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of
                                                                    18


Boston, 416 Mass. 269, 271 (1993).     "Whether a municipality is

acting in a business context depends on 'the nature of the

transaction, the character of the parties involved and [their]

activities . . . and whether the transaction [was] motivated by

business . . . reasons.'"     Park Drive Towing, supra, quoting

from Boston Hous. Authy. v. Howard, 427 Mass. 537, 538 (1998).

Courts also consider whether a municipality's actions are

incidental to a primary governmental function, and whether the

municipality seeks to profit from its actions.    See Peabody

N.E., Inc. v. Marshfield, 426 Mass. 436, 439-440 (1998);

Lafayette Place Assocs. v. Boston Redev. Authy., 427 Mass. 509,

535-536 (1998), cert. denied, 525 U.S. 1177 (1999).

    We need not resolve the issue of whether the city was

acting in a business context for purposes of G. L. c. 93A by

owning the Golf Club, overseeing its management by Bass River,

and collecting annual fees.    Even if we were to decide that the

city was engaged in trade or commerce, we nonetheless conclude

that, in this case, the city's dealings with Bass River did not

constitute unfair or deceptive acts under the statute as a

matter of law.

    To prevail on its c. 93A claim, Bass River was required to

show that the city engaged in "[u]nfair methods of competition"

or "unfair or deceptive acts or practices."    G. L. c. 93A, § 2,

as amended by St. 1978, c. 459, § 2.    When considering whether
                                                                   19


an act or practice is unfair, we assess "(1) whether the

practice . . . is within at least the penumbra of some common-

law, statutory, or other established concept of unfairness; (2)

whether it is immoral, unethical, oppressive, or unscrupulous;

[and] (3) whether it causes substantial injury to consumers (or

competitors or other business[people])."   PMP Assocs., Inc. v.

Globe Newspaper Co., 366 Mass. 593, 596 (1975), quoting from 29

Fed. Reg. 8325, 8355 (1964).   Practices may be deemed deceptive

where they "could reasonably be found to have caused a person to

act differently from the way he otherwise would have acted."

Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 51 (1979).

Conduct is deceptive when it tends to mislead.   See Aspinall v.

Philip Morris Cos., 442 Mass. 381, 396 (2004).

    Appellate courts have consistently held that a mere breach

of contract, without more, does not amount to a violation of

G. L. c. 93A.   See Whitinsville Plaza, Inc. v. Kotseas, 378

Mass. 85, 100-101 (1979); Madan v. Royal Indem. Co., 26 Mass.

App. Ct. 756, 762 (1989).   However, "conduct 'in disregard of

known contractual arrangements' and intended to secure benefits

for the breaching party constitutes an unfair act or practice

for c. 93A purposes."   Anthony's Pier Four, Inc. v. HBC Assocs.,

411 Mass. 451, 474 (1991), quoting from Wang Labs., Inc. v.

Business Incentives, Inc., 398 Mass. 854, 857 (1986).   "Courts

must consider whether the nature, purpose, and effect of the
                                                                    20


challenged conduct is coercive or extortionate."     Diamond

Crystal Brands, Inc. v. Backleaf, LLC, 60 Mass. App. Ct. 502,

507 (2004).    See Zabin v. Picciotto, 73 Mass. App. Ct. 141, 169

(2008).

    Here, based on the evidence presented at trial, the judge

stated that Bass River was aware of the physical condition of

the clubhouse, including the fact that the second floor was not

accessible to persons with disabilities, when it entered into

the assignment of the management contract.     The judge further

stated that no legally authorized agent for the city had made

binding representations concerning a specific time frame for the

completion of renovations to the clubhouse, and the management

contract was silent on the matter.   In addition, the judge

stated that, although financial constraints precluded the city

from immediately performing all of the repairs and improvements

contemplated by the management contract and the Gale reports,

the city did undertake such projects as municipal finances

permitted.    On that basis, we cannot say that the city's

dealings with Bass River rose to the level of unscrupulous,

coercive, or "[i]ntentionally gainful misconduct" that is

characteristic of wrongdoing under G. L. c. 93A.     McGonagle v.

Home Depot U.S.A., Inc., 75 Mass. App. Ct. 593, 600 n.9 (2009).

Accordingly, we conclude that the judge did not err in

dismissing Bass River's c. 93A counterclaim.
                                                                 21


    7.   Conclusion.   The appeal filed by Tozer is hereby stayed

until such time as the automatic stay in the bankruptcy case

terminates in accordance with 11 U.S.C. § 362(c) (2012).   The

judgment entered on October 3, 2014, is otherwise affirmed.

                                    So ordered.
