Coady v. Wellfleet Marine Corporation, No. 02-P-1273 (MA 10/12/2004)

• Decision Date: 12 October 2004
• Docket Number: No. 02-P-1273.,02-P-1273.
• Citation: 62 Mass. App. Ct. 237
• Parties: KEVIN T. COADY vs. WELLFLEET MARINE CORPORATION & others. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

KEVIN T. COADYvs.

WELLFLEET MARINE CORPORATION & others.¹

No. 02-P-1273.

Court of Appeals of Massachusetts.

Worcester.

February 3, 2004.

October 12, 2004.

Practice, Civil, Instructions to jury, Damages, Attorney's fees, Interest. Rules of Civil Procedure. Contract, Performance and breach, Damages, Misrepresentation. Damages, Attorney's fees, Future damages, Interest. Evidence, Credibility of witness. Witness, Credibility. Frauds, Statute of.

Civil action commenced in the Superior Court Department on June 30, 1995.

The case was tried before Francis R. Fecteau, J., and postverdict motions were heard by him.

Evan T. Lawson for the plaintiff.

James H. Quirk, Jr., for the defendants.

Present: Greenberg, Grasso, & Kafker, JJ.

GREENBERG, J.

Following a Superior Court jury verdict, an amended judgment in the amount of $27,059 was entered in favor of the plaintiff, Kevin Coady. That sum reflected the trial judge's reduction of the verdict for breach of contract and misrepresentation related to the defendants' (Wellfleet Marine Corporation, Alfred Pickard, and Donna Pickard) withholding of access to a boat slip at the town of Wellfleet (town) docks. The amended judgment also included statutory prejudgment interest.² On the defendants' counterclaim for work, labor, and materials supplied to the plaintiff during the 1994 boating season, the jury awarded the defendants $3,872. Both parties have appealed.

There was evidence at trial that would have permitted the jury to find the following facts that we briefly summarize, supplemented by other facts pertinent to the various issues raised in the appeals.

Alfred Pickard and Donna Pickard run Wellfleet Marine Corporation. Beginning in 1983, they provided the plaintiff with a mooring for his boat in Wellfleet harbor, as well as dry-dock and repairs during the winter months. In 1985, the plaintiff told the defendants that he wanted to buy a boat that would be too large for a mooring and would require a boat slip with water, electricity, and easy access. The defendant, Alfred Pickard, leased just such a boat slip from the town. Neither of the individual defendants told the plaintiff that there was a waiting list for boat slips in the town and that it took a minimum of ten years to acquire a slip. According to the plaintiff, the defendants told him that they would provide him with a slip for as long as he wanted if he would have them repair and store his boat. The defendants deny that they told the plaintiff that he could have the slip indefinitely.

From 1985 to 1994, the plaintiff kept his boat in the boat slip that Alfred Pickard leased from the town. During that time, the defendants billed the plaintiff for use of the slip, repairs, parts, supplies, and winter storage. In the winter of 1994 to 1995, Donna Pickard asked the plaintiff, who owned an automobile dealership, if he could obtain a specially configured van for her to purchase. She told him that he could apply the money he owed for the 1994 slip rental to the price of the van. The plaintiff told her that the van would cost about $23,000, and she told him to order it.

The parties had a falling out in the spring of 1995. The plaintiff told Donna Pickard that the van was available. She told him that she would pay only $10,000 for the van and that he should pay the rest. When the plaintiff refused, the defendants told him that he could not bring his boat back to the slip in town. In order to keep his boat in the town harbor, the plaintiff was forced to rent a transient slip from the town for $343 per week. He had to renew the slip each week, and there was no guarantee that a transient slip would continue to be available.

In 1997, the plaintiff brought a separate action against the town, its harbormaster, and the town's board of selectmen seeking a permanent injunction requiring the town to provide him with a slip for his boat. After learning that the town had a waiting list for residents seeking slips, the plaintiff put his name on the list in early 1998. Evidence at trial suggested that the plaintiff will not be eligible for a slip for ten to fifteen years after he was first put on the list. In 2001, the plaintiff reached a settlement with the town whereby he is guaranteed the use of a slip at the transient rate until his name comes up on the waiting list. The jury in this case determined that the defendants' breach of contract and misrepresentation caused the plaintiff to bring the case against the town to protect his rights, and the jury therefore included attorney's fees in his damages award.³

1. Jury instruction. During a precharge conference, the plaintiff submitted a request for jury instructions, including an instruction that "[w]hen one party to a contract breaches the agreement to be performed, he cannot then recover on the terms of the contract because he has not upheld his end of the bargain. His voluntary failure to complete the agreement prevents his recovery, except where there is an honest intention to go by the terms of the contract." When the judge delivered the jury instruction, he omitted this requested instruction. The plaintiff's counsel then repeated the request: "I would ask you to instruct the jury that if they find that there was a breach of contract by a defendant, Wellfleet Marine Corporation, that they should not consider Wellfleet Marine Corporation's counterclaim. Because I believe the law is that if you breach your contract, you can't recover on the contract, you can't recover a quantum meruit either." The judge again declined to give the instruction, noting that he was "not sure that's a correct statement of law," and that it "would result in a windfall for the plaintiff."

The defendants claim that the plaintiff neglected to preserve his right to appeal the exclusion of the instruction because he failed to file appropriate posttrial motions seeking a new trial on the basis of the failure to charge the jury as requested. The plaintiff properly preserved this issue for appeal by objecting to the judge's refusal to instruct as soon as the instructions were given. Rule 51(b) of the Massachusetts Rules of Civil Procedure, 365 Mass. 816 (1974), provides that "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The Supreme Judicial Court has held that "[i]f a party requests an instruction, the judge does not give it, the party objects after the charge was given and explains the significance of the request, and the judge acknowledges an understanding of the issue but nevertheless declines to give the instruction, the requirements of rule 51 are unquestionably satisfied." Flood v. Southland Corp., 416 Mass. 62, 66 (1993). The plaintiff followed these guidelines and thus preserved this issue for appeal.

Even so, we conclude that the judgment on the counterclaim should stand. Although the jury found that the defendants breached their contract with the plaintiff when they refused to let him return his boat to the slip for the 1995 boating season and thereafter, the evidence demonstrates that the defendants had upheld their agreement to provide the slip for the 1994 boating season and had performed various services and repairs for the plaintiff in 1994. Despite the defendants' eventual breach, the plaintiff remained obligated to pay for the services he received before the breach occurred.

Under Massachusetts case law, one party's breach of a contract does not bar recovery for the other party's breach if the different parts of the contract can be considered separable or divisible. The law in Massachusetts is consistent with the flexible rule of the Restatement (Second) of Contracts § 240 (1981), which states that "[i]f the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party's performance of his part of such a pair has the same effect on the other's duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised." See Potter & McArthur, Inc. v. Boston, 15 Mass. App. Ct. 454, 455-456 (1983).

Even where there is only one agreement covering all the terms of a contract, "it may be that the performance under the contract will be divided into different groups, each set embracing performances which are the agreed exchange for each other, the result being that the contract is entire but divisible." Bianchi Bros. v. Gendron, 292 Mass. 438, 445 (1935). In this case, performances under the contract were implicitly divided by boating season, and payment for the defendants' performance in 1994 was separate from payment for future seasons. Thus, the plaintiff owed the defendants for their 1994 performance regardless of the later breach. See id. at 446; Carrig v. Gilbert-Varker Corp., 314 Mass. 351, 357-358 (1943).

In Lease-It, Inc. v. Massachusetts Port Authy., 33 Mass. App. Ct. 391, 394 (1992), the defendant breached its contract with the plaintiff in November, 1983, by closing a street that provided the plaintiff with access to Logan International Airport. The plaintiff also breached the contract by not paying fees it owed the defendant for the period from December, 1983, to June, 1984. Ibid. Noting that "there was a period of time where [the defendant], alone, was in breach of the agreement," the court held that the plaintiff, "despite its eventual material breach, still may recover damages from [the defendant] for its breach; the measure of damages is limited, however, to the period between [the defendant's] breach and [the plaintiff's] . . . breach." Id. at 397. Thus, the defendants in this case may recover damages from the plaintiff for his failure to pay for the services they provided...