2017 Mass.App.Div. 191, NC Marsteller, Inc. v. Newcomb

• Citation: 2017 Mass.App.Div. 191
• Opinion Judge: FINNERTY, J.
• Party Name: NC MARSTELLER, INC. and another [1] v. DANIEL R. NEWCOMB and another [2]
• Attorney: Wayne H. Scott for the plaintiffs. Louis A. Cassis for the defendants.
• Judge Panel: Present: Finnerty, Kirkman & Finigan, JJ.
• Case Date: December 18, 2017
• Court: Massachusetts Appellate Division

2017 Mass.App.Div. 191

NC MARSTELLER, INC. and another ¹

v.

DANIEL R. NEWCOMB and another ²

Massachusetts Appellate Division, District Court Department, Southern District

December 18, 2017

April 14, 2017

Wayne H. Scott for the plaintiffs.

Louis A. Cassis for the defendants.

Present: Finnerty, Kirkman & Finigan, JJ.

FINNERTY, J.

Following a bench trial in which the court found in favor of the defendants, Daniel R. Newcomb ("Newcomb") and The Atlantic Restaurant Group, Inc. ("Atlantic"), on claims by the plaintiffs, NC Marsteller, Inc. and NCM Clanoderry, LLC (hereinafter "Aalders," the principal of both entities), for breach of fiduciary duties, conversion, and unfair and deceptive acts in violation of G.L. c. 93A, Aalders appeals.

Aalders contacted Atlantic, of which Newcomb is the principal, in connection with Aalders's interest in purchasing a restaurant for which Atlantic was the seller's broker. After that successful transaction, when his business did not succeed, Aalders contacted Newcomb in order to have Atlantic broker Aalders's sale of the restaurant. The written "Exclusive Right to Sell" brokerage agreement they signed on December 2, 2008 is the crux of this litigation.

That contract between Aalders and Atlantic provided that Aalders would pay Atlantic a professional fee upon the sale or voluntary transfer of the property equal to the greater of 8% of the purchase price or $22,500.00. It also provided that Atlantic would be entitled to 25% of any deposits forfeited to Aalders by any prospective buyer. If any potential buyer introduced by Atlantic became involved in the business "in any manner, either as a manager, consultant, employee, partner, shareholder or in any other capacity," Aalders would pay Atlantic the minimum fee. By its terms, the agreement was still in effect when Aalders produced a buyer, Capital Consulting Group, Inc. ("CCG"). The purchase agreement between CCG and Aalders provided for a deposit of $125,000.00 to be held in escrow by Atlantic and a $50,000.00 nonrefundable deposit

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to be paid directly to Aalders. CCG was permitted under a management agreement with Aalders to begin operation of the restaurant before government approval of license transfers that were a prerequisite to the consummation of the sale. During the period pending consummation, which lasted a year, Aalders left the United States and used Newcomb as a conduit for communication between him and CCG. Ultimately, the license transfers were not approved, and the pending sale was terminated. Litigation between CCG and Aalders followed. Meanwhile, Atlantic arranged a sale by Aalders to the original seller (Aalders's predecessor). Atlantic received a $26,000.00 commission from the proceeds of that sale and $10,000.00 for the transfer of the restaurant operations by Aalders to CCG, which was paid out of funds received by...