Amory v. Checroune, 2004 Mass. App. Div. 12 (Mass. App. Div. 1/22/2004)
| Decision Date | 22 January 2004 |
| Parties | David Amory, d/b/a David Amory Architects <I>v.</I> Alain Checroune, Paul Atlan and South Side Realty, LLC. |
| Court | Massachusetts Appellate Division |
Present: Welsh, Williams & Barrett, JJ.
Contract, For architectural services.
Agency, Individual liability; Doctrine of partnership by estoppel.
Practice, Civil, Dist./Mun. Cts. R. A. D. A., Rule 8A.
Opinion affirming judgment for plaintiff. Action heard in the Brookline Division by Gordon A. Martin, Jr., J.
Jacob Walters for the plaintiff.
Daniel Briansky for defendant Alain Checroune.
The defendant Alain Checroune ("Checroune") appeals pursuant to Dist./Mun. Cts. R. A. D. A., Rule 8C, the finding of the trial judge that Checroune is individually liable to the plaintiff, David Amory d/b/a David Amory Architects ("Amory"), for certain architectural fees. Specifically, Checroune asserts he cannot properly have been found liable because he was acting solely as an agent for a principal, the defendant corporation South Shore Realty, LLC ("South Shore").1 We affirm the judgment in favor of Amory.
In a proposal letter of 29 October 1997 Amory sent to Checroune, Paul Atlan ("Atlan"), and something called "South Shore Realty Investors" in care of Boston United Realty Corp., Amory agreed to perform architectural services for the renovation of the "old Patriot Ledger Building" in Quincy. Atlan apparently signed the
"acceptance" line of the letter. On 16 October 1997, Checroune and Atlan had created South Shore for the purpose of buying real estate, and indeed that day South Shore bought the building from Boston United Realty Corp., of which corporation Checroune was president and treasurer.
Pursuant to the accepted proposal, Amory performed his work, completing it in December 1997. Amory was not told he was working for anyone other than what he thought to be a partnership called "South Shore Realty Investors." He normally did not conduct a title search to confirm that a client was the record owner of property on which he worked, and he did not do so here. Atlan apparently made the only payment to Amory, of $2,500.00. The balance, nearly $13,000.00, was not paid. Amory filed suit in 1998 against Checroune and Atlan. Atlan was never served. In October 2002, Amory amended his complaint to add South Shore as a defendant. The trial judge found in Amory's favor, against both Checroune and South Shore. Checroune appealed the finding in general, but at the trial judge's rulings on his request for rulings with a mention that does not rise to the level of appellate argument and so effectively waives appellate consideration of those requests.2 Dist./Mun. Cts. R. A. D. A., Rule 16(a)(4); see, e.g., Ward v. James, 1999 Mass. App. Div. 208, 209.
Checroune's argument is based in agency law; Amory's, in partnership law. Checroune asserts he was acting solely as an agent for South Shore, the disclosed principal, or for some undisclosed principal, and cannot be found individually liable in either case. See, e.g., Williams v. Vanaria, 2000 Mass. App. Div. 162; Basbanes v. Philip R. Boncore, PC., 1993 Mass. App. Div. 208 and cases cited.3 Amory asserts, on the other hand, that his uncontroverted trial testimony established that Checroune and Atlan had held themselves out to him as partners doing business as "South Shore Realty Investors," and thus Checroune could be, and properly was, found personally liable as an ostensible partner.
Checroune's argument, in part, assumes a duty on Amory to ascertain the precise identity of the owner of the building. Had Amory checked at the Registry of Deeds — between 16 and 29 October 1997 — he would have learned, the argument runs, that South Shore owned the building and would thus have realized Checroune was acting on behalf of that corporate principal. This Court is provided nothing, though, suggesting either that Amory's failure to research deeds was somehow a failing on his part, or that he is charged with knowledge of the deed to South Shore simply because it was available in the Registry of Deeds for his inspection. Checroune suggests further that even if Amory were ignorant of the deed and had no duty to search for it he knew Checroune and Atlan "were acting
on behalf of another entity" because Amory himself used the name "South Shore Realty Investors" in the letter contract he drafted and on his invoices. It does not follow, however, that Amory's awareness of the name "South Shore Realty Investors" signifies he should have then gone on to deduce there was a corporate principal of that or a similar name for which Checroune was an agent. Amory believed the name was simply one under which Checroune and Atlan did business. There was, in short, no evidence tending to urge the trial judge to find that Amory knew or should have known that Checroune was acting as agent of any corporate entity, disclosed or undisclosed, and none suggesting Amory was unjustified in believing Checroune and Atlan were partners.4
Having so said, we go on to observe that the main substantive issue here was whether the doctrine of partnership-by-estoppel applied. See M.G.L.c. 108A, §16. Amory's position is essentially that the trial judge properly found Checroune individually liable because Checroune and the absent Atlan had held themselves out to Amory as partners and so could not later deny that relationship.5 Whether partnership-by-estoppel may be found is a question of fact. Atlas Tack Corp. v. DiMasi, 37 Mass. App. Ct. 66, 68 (1994), citing Mersick v. Bilafsky, 205 Mass. 488, 492 (1910). Although evidence on that issue was meager,6 Checroune does not here attack the sufficiency of the evidence regarding the existence of an apparent partnership that included Checroune. Specifically, Checroune does not attack the trial
judge's rulings on his requests for ruling touching on the sufficiency of the evidence.7 Checroune has therefore forfeited any appellate consideration of that issue, and this Court will not disturb the trial judge's finding in favor of Amory. See, e.g., Commonwealth Ins. Co. v. Vigorito, 2003 Mass. App. Div. 26, 28 and cases cited.
Checroune argues further, with some cogency, that when Amory finally learned that South Shore did exist and then added it as a defendant, he thereby assumed a duty to elect whether he would look to the agent (Checroune) or the principal (South Shore) for recovery, because he cannot recover judgment against both. Moniz Excavating Co. v. Tupick, 1991 Mass. App. Div. 124, citing, inter alia, Marsch v. Southern New Eng. R.R. Corp., 230 Mass. 483, 499 (1918). But the problem is that this issue was not raised at trial, and this Court is presented nothing indicating it was raised at any time below. We may not consider it now. E.g., Brown v. Koch Membrane Sys., Inc., 2001 Mass. App. Div. 210, 213, quoting Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 11 (1998), quoting in turn from Commonwealth v. Olson, 24 Mass. App. Ct. 539, 544 (1987) ( ); see also, e.g., Child v. Child, 58 Mass. App. Ct. 76, 84 (2003), citing, inter alia, M.H. Gordon & Son v. Alcoholic Bevs. Control Comm'n, 386 Mass. 64, 67 (1984). Accordingly, we affirm the judgment in favor of Amory.
So ordered.
1. Neither South Shore nor Paul Atlan is a party to...
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