Flym v. Ethan Blout and Nordic Motors, Inc., 2003 Mass. App. Div. 178 (Mass. App. Div. 10/15/2003)

• Decision Date: 15 October 2003
• Parties: John Flym <I>vs.</I> Ethan Blout and Nordic Motors, Inc.
• Court: Massachusetts Appellate Division

Page 178

2003 Mass. App. Div. 178

John Flymvs.

Ethan Blout and Nordic Motors, Inc.

Massachusetts Appellate Division

Boston Municipal Court.

October 15, 2003.

Present: Bernstein, P.J., Flaherty & Coyne, JJ.

Contract, Breach.

Tort, Fraud.

Consumer Protection, G.L.c. 93A.

Practice, Civil, Requests for rulings, Lack of.

Opinion dismissing defendants' appeal. Action heard by Summerville, J.

Thomas K. Birch for the plaintiff.

Gretchen Van Ness for the defendants.

Coyne, J.

Plaintiff-Appellee John Flym ("Flym") brought this action against Defendants-Appellants Ethan Blout ("Blout") and Nordic Motors, Inc. ("Nordic Motors," and, together with Blout, the "Defendants") for breach of contract, fraud and violation of G.L.c. 93A. The Defendants answered Flym's complaint and filed counterclaims against Flym. After a trial on the matter, the trial judge found for Flym on the breach of contract claim and awarded damages in the amount of $7,000.00. The trial judge found for the Defendants on the fraud claim and the claim under G.L.c. 93A, and he found for Flym on the counterclaim. The Defendants have appealed.

For the reasons stated herein, we affirm the decision of the trial judge and dismiss the Defendants' appeal.

The circumstances giving rise to this action are as follows. Blout owned and managed Nordic Motors¹ and was in the business of restoring, repairing and selling used automobiles. Flym was a regular customer at Nordic Motors for several years. Flym owned a 1973 Saab 96, which Nordic Motors maintained for him.

At some point in 1997, Flym and Blout agreed that Flym would purchase a 1989 Saab 900S from Blout, and Blout would make all necessary repairs to the automobile prior to the purchase. Blout and Flym also agreed that Blout would take possession of Flym's 1973 Saab 96 and assist Flym in selling it. In May of 1997, Flym delivered the $3,200.00 purchase price for the 1989 Saab 900S to Blout and took possession of it. Flym also delivered his 1973 Saab 96 to Blout.

By September of 1997, Blout had not sold Flym's 1973 Saab 96. The relationship between the parties began to deteriorate at that point. Blout indicated that he was no longer interested in selling Flym's 1973 Saab 96. On November 10, 1997, Flym sent a G.L.c. 93A demand letter to Blout, alleging that Blout's actions constituted unfair and deceptive business practices. Flym filed the complaint in this court on January 2, 1998.

Discussion

The Defendants' argument that Flym and Blout did not have an enforceable contract is essentially an argument that there was insufficient evidence before the trial judge from which he could conclude that such contract existed. In order to preserve issues related to the sufficiency of the evidence for appellate review, the Defendants were obligated to file requests for rulings on the sufficiency of the evidence in the form prescribed by Mass. R. Civ. P., Rule 64A(b). Morris v. Centola, 2001 Mass. App. Div. 39, 40.

The Defendants filed a document with the caption "Defendants' Proposed Findings of Fact and Conclusions of Law." In denying the Defendants' proposed findings and conclusions, the trial judge stated that "[t]he defendant's proposed findings of fact and conclusions of law were presented to the Court in the form of a brief which did not distinguish between the findings of fact and rulings of law as required by Mass. R. Civ. P., Rule 64A(a) and Mass. R. Civ. P., Rule 64A(c). The Court denies the requested findings and conclusions on the above mentioned basis." Because the Defendants have not raised issues related to the sufficiency of the evidence by proper requests, those issues have not been preserved for appellate review. Morris v. Centola, supra. For this reason, we do not reach any issues concerning sufficiency of the evidence on the existence of an enforceable contract between Flym and Blout.²

Similarly, the Defendants' argument that they were excused from performance of the agreement because of Flym's breach is addressed to the sufficiency of the evidence before the trial judge. The Defendants did...