Capital v. Summit Constr. Inc. & Another.

• Decision Date: 14 December 2010
• Docket Number: 09-P-1978
• Parties: WHIRLWIND CAPITAL, LLC v. SUMMIT CONSTRUCTION, INC. & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

WHIRLWIND CAPITAL, LLC

v.SUMMIT CONSTRUCTION, INC. & another. ¹

09-P-1978

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: December 14, 2010.

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This action arose from an alleged agreement between two private developers to share the cost of upgrading a city-owned water pumping station in Leominster called Jytek (Jytek). After a three-day, jury-waived trial in July, 2009, a judge found and ruled in favor of Whirlwind Capital, LLC (Whirlwind) on its breach of contract and quantum meruit claims (limiting Whirlwind to one recovery), and in favor of James Xarras on the G. L.

c. 93A claims. ² We affirm.

The judge's findings of fact must stand unless they are clearly erroneous. ³ See Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). Here, the judge found that at an October, 2003, meeting (one of many between the principals and city officials), Whirlwind agreed to contribute $115,000 toward the estimated total upgrade cost of $350,000; the city agreed to pay $50,000 for the design work; and Xarras agreed to contribute $185,000 once he obtained planning board approval, believed to be imminent. ⁴ Attempts by John Bulman, Whirlwind's general counsel, to reduce that agreement to writing failed. Xarras, the judge found, either did not receive these proposed written agreements or received them and chose to ignore them.

The judge further found that at a March, 2004, meeting, Xarras promised to write his check for his proportional share ($185,000) on the day after he received planning board approval. ⁵ The planning board approval, the judge found, was the only condition placed upon Xarras's obligation to pay.

The planning board issued its approval on May 24, 2004. ⁶ From late 2004 to July, 2005, contractors hired by Whirlwind performed the necessary upgrades. Whirlwind paid $324,397.85 for the work. When Whirlwind demanded payment of $185,000 on October 11, 2006, Xarras refused to pay. The judge found that the Jytek upgrade conferred a substantial benefit upon Xarras, allowing him to sell his land at an enhanced value as a permitted property.

An enforceable contract may be shown to have arisen by proof of an agreement between the parties on the material terms of the contract and of their present intention to be bound by that agreement. See Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000). The existence of an oral contract was a question of fact for the judge. See Turner v. Community Homeowner's Assn., 62 Mass. App. Ct. 319, 324-325 (2004).

Based upon the subsidiary findings and the evidence before him, the judge was warranted in finding that at the March 31, 2004, meeting, the parties' negotiations had progressed beyond an agreement to agree and that they had mutually assented to a binding agreement. See McCarthy v. Tobin, 429 Mass. 84, 86-87 (1999). On that date, the nature and extent of Xarras's obligations (the amount of payment due, the sole condition placed upon his duty to pay, and the date of performance) were clear, fixed, and enforceable. To the extent that Xarras maintained that the parties had not reached any agreement on numerous issues, the judge could properly have found that none of these missing terms was material or essential. ⁷ See Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. at 878 ('It is not required that all terms of the agreement be precisely specified, and the presence of undefined or unspecified terms will not necessarily preclude the formation of a binding contract').

Xarras also maintained that Whirlwind should be left without a contractual remedy because the contract was invalid under G. L. c. 30B, § 17(a) (requiring any contract with a government body in the amount of $5,000 or greater to be in writing). The judge concluded that the statute was inapplicable. Devoid of any citation to supporting legal authority, Xarras's conclusory claim of error did not meet proper appellate argument standards and is thus deemed waived. See Milton v. Commissioner of Correction, 67 Mass. App. Ct. 253, 257 n.5 (2006). In any event, the statutory right to relief provided in G. L. c. 30B, § 17(b), is limited to government bodies and not to private developers like Xarras seeking to avoid oral agreements with other private developers.

On the view we take of the contract claim, there is no need to consider the propriety of Xarras's liability under quantum meruit. Were we to reach this issue, we would conclude that the judge's factual findings regarding the reasonable expectation of Whirlwind to get paid by Xarras, and the substantial benefit to Xarras at Whirlwind's...