Fontaine v. Cape Cod Times

• Decision Date: 23 December 2013
• Docket Number: No. 12–P–1085.,12–P–1085.
• Citation: 84 Mass.App.Ct. 1126,999 N.E.2d 503 (Table)
• Parties: Robert FONTAINE v. CAPE COD TIMES.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 1126
999 N.E.2d 503 (Table)

Robert FONTAINE
v.
CAPE COD TIMES.

No. 12–P–1085.

Appeals Court of Massachusetts.

December 23, 2013.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Robert Fontaine, appeals from a decision of a judge of the Superior Court granting summary judgment to Cape Cod Times (CCTimes). On the limited record the plaintiff has produced and on which he relies, he has not shown that the judge erred in granting summary judgment to CCTimes.¹

On October 31, 2002, the plaintiff and CCTimes entered into a purchase and sale agreement (agreement) whereby CCTimes purchased the plaintiff's business containing valuable Internet Web sites related to real estate on Cape Cod. In consideration for the sale, CCTimes agreed to (i) pay a lump sum of $60,000; (ii) pay a twenty percent share of the net revenue over $100,000 derived from CCTimes's and the plaintiff's real estate Internet sites (net Internet revenue share) for years 2002–2006; (iii) pay a five percent share of net Internet revenue in excess of $50,000 for the first six months of 2007; and (iv) employ the plaintiff pursuant to an employment contract from November 1, 2002, through June 30, 2007. The agreement, negotiated over a period of months with both sides represented by counsel, specifically defines the plaintiff's net Internet revenue share and how it is to be calculated. No specific prices or minimum prices for Internet advertising or other revenue-producing Internet services are included in the agreement. After the agreement was executed, CCTimes began to sell Internet advertising in a “bundle” with print advertising, charging a discounted price for the Internet advertising. This bundle offer was one of several ways to purchase Internet advertising and services. Because of the associated costs for print, ninety percent of the income from bundle sales was thereafter allocated to print and ten percent was allocated to Internet. A portion of the plaintiff's net Internet revenue share was derived from the ten percent attributed to Internet advertising.

Contending that CCTimes (i) misrepresented its current and anticipated “pre-deal” Internet revenue income in order to inflate the deductible to $100,000; (ii) was aware of but failed to share with the plaintiff its plan to bundle print and Internet advertising at a reduced rate, thereby diminishing the plaintiff's net Internet revenue share, and (iii) failed to provide adequate support staff causing the plaintiff to spend less time pursuing sales and associated commissions, the plaintiff commenced this action on September 2, 2008. The plaintiff sought rescission and other relief. A judge of the Superior Court granted CCTimes's motion for summary judgment and the plaintiff appeals.

Discussion. A. Fraud in the inducement/misrepresentation. The plaintiff contends that during most of the negotiations, CCTimes misrepresented that its pre-deal Internet income was expected to be in the vicinity of $100,000 for 2002. He contends he relied...