Opinion
14-P-415
06-23-2015
ALVARO R. AMARAL v. MANUEL LINDO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In his appeal, the plaintiff challenges the trial judge's dismissal of the count in his complaint brought pursuant to G. L. c. 93A, § 11. The defendant, on the other hand, appeals from the judgment entered in the plaintiff's favor on four other counts, claiming insufficiency of evidence and that the amount of damages awarded by the jury was excessive. We affirm.
Background. In 2007, the plaintiff and the defendant agreed to jointly purchase for about $450,000 a single parcel in Fall River that included three multi-family homes. They planned to subdivide the property and sell each of the houses individually, splitting any profits equally. The defendant, a licensed real estate broker, was to handle each purchase and sale and would take his standard commission. The parties did not memorialize the agreement in writing, although both acknowledge a partnership existed.
According to the agreement, each man was to contribute $230,000 toward the partnership. They differ sharply, however, as to the form those contributions were to take. The plaintiff contends that both parties were to contribute cash, while the defendant claims both parties agreed that his share would come from a mortgage taken on the property. In the end, the plaintiff contributed cash and the defendant's share came from a mortgage. The defendant handled the logistics and purchased the property in his name alone. When the first house sold for $258,000, the defendant used roughly $230,000 of the proceeds to pay off the mortgage.
The plaintiff contends he expected to receive half the proceeds from the first sale and did not know the defendant would hold the property in his name alone. The plaintiff also maintains he was unaware the defendant took a mortgage on the property as his contribution toward the partnership or that the defendant planned to pay off the mortgage in its entirety from the proceeds of the first sale. After months of unsuccessfully pressing the defendant for his share of the proceeds, the plaintiff filed suit in Superior Court. The complaint sought, as relevant to these cross appeals, recovery of money had and received (count I); recovery of money owed (count II); recovery of money lent (count III); recovery of converted property (count IV); and recovery under G. L. c. 93A, § 11 (count V).
Counts VI and VII, for an accounting of rents and imposition of a constructive trust, were disposed of by other judgments from which neither party has appealed.
Before opening statements, the trial judge ordered that count V be dismissed, ruling that G. L. c. 93A was inapplicable because the case involved a dispute over the terms of a partnership. The case then went to trial before a jury on counts I, II, III, and IV. The plaintiff and the defendant were the only witnesses to testify. At the close of the evidence, the defendant moved for a directed verdict, which the trial judge denied. The jury then returned a verdict in favor of the plaintiff on all four counts and awarded damages in the amount of $230,000. The trial judge denied various posttrial motions filed by the defendant and the plaintiff, and a judgment entered on the jury verdict. Both parties then filed notices of appeal.
Plaintiff's appeal from c. 93A ruling. The plaintiff challenges the trial judge's ruling on the G. L. c. 93A, § 11, claim. We review de novo an appeal from a ruling that G. L. c. 93A is not applicable to a particular type of conduct. See Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 171 (2013), quoting from Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011). While acknowledging that Massachusetts courts have consistently held that partnership disputes are outside the scope of c. 93A, § 11, the plaintiff claims the defendant's dual role as partner and real estate broker representing the partnership brings this case within the statute. The plaintiff's argument here is unpersuasive. Simply bringing one's skills to a partnership does not transform the arrangement into the type of arm's length, commercial transaction that is subject to c. 93A, § 11. We discern no basis upon which to exempt the partnership in issue here from the well-established rule that "disputes between parties in the same venture do not fall within the scope of G. L. c. 93A, § 11." Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 549 (2014), quoting from Szalla v. Locke, 421 Mass. 448, 451 (1995). The plaintiff separately argues c. 93A, § 11, is applicable because the partnership was in fact a sham. It has not been made to appear on the record before us that the arrangement was meant to be anything other than a profit making venture to the equal benefit of both parties. The trial judge correctly dismissed the plaintiff's c. 93A, § 11, claim.
Because the plaintiff did not file a notice of appeal from the judgment dismissing count V of the complaint, which did not enter until nearly one year after the trial, that judgment is not before us. Instead, the plaintiff's only notice of appeal pertains to the interlocutory order denying his posttrial (but prejudgment) request for findings of fact and conclusions of law on count V, which is also technically not before us because no interlocutory appeal was sought or authorized. Despite these procedural deficiencies, in our discretion we choose to opine on the c. 93A issue as it has been fully briefed and argued by the parties.
Defendant's appeal from denials of motions for directed verdict and judgment notwithstanding verdict. The defendant claims the plaintiff failed to present sufficient evidence regarding the partnership agreement to support the verdict. In reviewing the denial of motions for a directed verdict and judgment notwithstanding the verdict, we determine whether the evidence, construed against the moving party, supports the verdict. D'Annolfo v. Stoneham Hous. Authy., 375 Mass. 650, 657 (1978). When construed against the defendant, the plaintiff's testimony that the agreement called for both parties to contribute cash and share equally the profits from each subsequent sale is sufficient evidence of the terms of the partnership agreement. As there is ample evidence to support the verdict, the trial judge properly denied the defendant's motions.
Defendant's damages argument. The defendant also argues the $230,000 damages award was unreasonably large because at best the evidence supported an award of half that amount given the equal sharing of proceeds under the partnership agreement. We will not consider this contention, however, because there is no indication in the materials before us that the defendant raised it in the trial court. None of the trial or posttrial motions included in the record appendix contains this argument, and the defendant has failed to include his motion for remittitur in the appendix. We need not accept the plaintiff's representation that the remittitur motion argued an unrelated issue in order to conclude that in the circumstances we should deem the defendant's excessive damages argument on appeal to be waived. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995) ("An appellant's obligation to include those parts of the trial transcript and copies of motions 'which are essential for review of the issues raised on appeal . . . is a fundamental and long-standing rule of appellate civil practice'" [citation omitted]). See also Shafir v. Steele, 431 Mass. 365, 371 (2000) ("'[Q]uestions 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 . . . . [Where there is a failure to do so, we] are . . . not required to consider this issue on this appeal.' . . . The issue is waived" [citation omitted]). Compare Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007).
We note that the defendant did not dispute the plaintiff's characterization of his remittitur motion, either in a reply brief or at oral argument when his counsel was questioned on the subject of waiver.
Judgment dated September 29, 2011, affirmed.
By the Court (Rapoza, C.J., Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 23, 2015.