Newton v. Moffie

• Decision Date: 23 April 1982
• Citation: 434 N.E.2d 656,13 Mass.App.Ct. 462
• Parties: Caryl W. NEWTON et al., 1 trustees, v. Saul E. MOFFIE et al. 2
• Court: Appeals Court of Massachusetts

Page 656

434 N.E.2d 656

13 Mass.App.Ct. 462

Caryl W. NEWTON et al., ¹ trustees, v. Saul E. MOFFIE et al. ²

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 10, 1982.

Decided April 23, 1982.

Edward P. Leibensperger, Boston, for plaintiffs.

Arthur M. Gilman & Kenneth G. Gilman, Boston, for defendants, submitted a brief.

Before HALE, C. J., and ROSE and GREANEY, JJ.

GREANEY, Justice.

The plaintiffs in this action are trustees of a trust established by the will of one Arnold Goodman. By their original complaint in a single count, they sought to recover damages for the trust on the ground that the defendants, Goodman's former business partners, had intentionally diverted partnership assets in violation of their fiduciary duties. On the day of trial, the parties filed a written stipulation waiving trial by jury. Mass.R.Civ.P. 38(d), 365 Mass. 801 (1974). After the waiver was filed, but before the trial commenced, the plaintiffs moved to amend their complaint to include a second count alleging that the defendants' conduct constituted unfair or deceptive acts or practices in violation of G.L. c. 93A, § 11, as amended through St.1979, c. 72, § 2. The defendants objected to the amendment. The judge decided that since a party is entitled to amend the pleadings to conform to the evidence, see Mass.R.Civ.P. 15(b), 365 Mass. 761 (1974), he would defer ruling on the motion until the conclusion of the trial, stating that "(i)f by any chance the evidence is such that it supports the (c.) 93A amendment to the complaint, I will take it at that time." The defendants did not file a new demand for a jury trial on the c. 93A claim, and the trial proceeded before the judge.

Following the trial, the judge filed findings of fact and conclusions of law, ruling that Moffie's conduct violated his fiduciary duty to Goodman. He also allowed the motion to amend and ruled that this conduct violated G.L. c. 93A, § 11. Based on these violations, the judge awarded the plaintiffs double damages, as permitted by § 11, in the amount of $14,120. On appeal, the defendants argue that the judgment on the c. 93A claim must be reversed because § 11 was not intended to apply to transactions within, i.e., among the members of, a single level entity like the partnership in this case. We agree, and reverse the judgment as to that count. ³

From the judge's findings and the undisputed evidence, the facts may be summarized as follows. The plaintiffs' decedent Goodman and the defendants Moffie and Goldman were partners or joint venturers ⁴ as to the transactions in issue. At the time the partnership was formed, Moffie was authorized to conduct its business on behalf of the other partners, and it was he who handled all the transactions described below.

In 1965, the partners purchased an interest in an apartment building located in Brookline. Shortly thereafter, the partners sold that interest to one Edward J. McCormack, Jr., for $75,000, and McCormack executed a promissory note to the partners in that amount. In 1970, after several years of litigation on the note, McCormack made a cash payment and executed a new note in the amount of $27,000, which represented the balance of his indebtedness to the partners. ⁵ McCormack subsequently made payments on the new note of $5,000 in 1971 and $12,000 in 1974. Both payments were properly distributed to the partners in equal shares.

Approximately one month prior to the 1974 payment, Moffie and McCormack entered into a separate agreement. The first paragraph of that agreement referred to the $27,000 note held by the partners. The second paragraph referred to another promissory note in the amount of $60,000, executed by McCormack and payable to Congress Capital Corporation (CCC), which was owned by Moffie individually. The third paragraph referred to a transaction by which CCC became the owner of an option to purchase certain land located in Brighton. The agreement went on to provide, in essence, that Moffie would discharge both of McCormack's notes, and would cause CCC to assign to McCormack the option to purchase the land, in return for a payment totalling $181,500. Moffie had complete control over the proceeds of this agreement, including their allocation to the various matters covered therein.

Moffie did not inform Goodman of his agreement with McCormack. Rather, as found by the judge, Moffie "represented to the plaintiffs that he had settled the ... ($27,000) note," that he had "received only $12,000 from McCormack who was then in financial difficulties," and that he "considered it good and sound business practice ... under those circumstances" to effect that settlement. Moffie then paid Goodman $4,000 as his share of the proceeds. The judge found that the full amount owed on the partners' note was $33,180 including accrued interest, that McCormack paid Moffie this amount to discharge the note, and that Goodman's proper share of this payment was $11,060. The judge also found that Moffie chose to "allocate less than the full amount received on the ... note ... so that he and/or CCC would realize a greater return on the (two) remaining matters" covered by the agreement, to his personal benefit and at the expense of the other partners.

The judge concluded that Moffie owed a fiduciary duty to the other partners in settling their note; that he violated that duty by commingling this matter with his personal affairs, and by failing to make a proper accounting to the partners; and that as a result of that violation, he owed Goodman an additional $7,060 as the remainder of Goodman's share of the proceeds. The judge also ruled that Moffie's conduct constituted a violation of G.L. c. 93A, § 11, and that the intentional nature of that conduct warranted an award of double damages.

The defendants do not dispute that the facts found by the judge are supported by the evidence. Nor do they question the conclusion, as a matter of basic partnership law, that the plaintiffs are entitled to $7,060 on count one to reimburse Goodman's trust for the loss it suffered by reason of Moffie's misconduct. See Latta v. Kilbourn, 150 U.S. 524, 541, 14 S.Ct. 201, 207-208, 37 L.Ed. 1169 (1893); Crane & Bromberg, Law of Partnership, supra. Instead they claim, correctly in our view, that the transaction was not within the scope of G.L. c. 93A, § 11.

Section 2(a) of G.L. c. 93A, inserted by St.1967, c. 813, § 1, proscribes unfair or deceptive acts or practices in the conduct of any "trade or commerce." Section 1(b), as amended through St.1972, c. 123, defines " 'trade' and 'commerce' " as including "the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this commonwealth." Section 11, as amended through St.1979, c. 72, § 2, affords recovery to "(a)ny person who engages in the conduct of any trade or commerce" who suffers a loss by reason of conduct proscribed by § 2 on the part of "another person who engages in any trade or commerce" (emphasis supplied).

Taken on its face, the language of § 11 emphasized above does not appear to apply to a transaction like the one in issue, which was confined strictly to persons within the partnership. Of the several transactions involved, Moffie's liability was not based on those which he conducted with parties outside the partnership, i.e., his handling of the purchase and subsequent sale of the apartment building in Brookline. Rather, his liability rested solely on his conduct in settling the McCormack note to the detriment of Goodman, another member of the partnership. As to that transaction, there was clearly no "sale, rent(al) or lease" of property, as between the partners, to bring it under the definition of "trade" or "commerce" set out in § 1(b). Even if we assume that the settlement did involve a "distribution" of property among the partners within the meaning of § 1(b), it still would be difficult to conclude that as to Goodman, a fellow member of the partnership, Moffie was "another person" engaged in trade or commerce, as required by § 11. It thus appears, as a matter of statutory construction, that § 11 was intended to apply only to dealings between legally separate "persons" ⁶ engaged in arms-length transactions, and not to dealings between members of a single legal entity like a partnership.

Moreover, we do not think that Moffie's settlement of the McCormack note constituted trade or commerce "directly or indirectly affecting the people of this commonwealth," within the meaning of § 1(b). This consideration is stressed in Federal cases construing the Federal Trade Commission Act, 15 U.S.C. 45(a)(1) (1976), by which we are to be guided in construing our own statute. ⁷ G.L. c. 93A, § 2(b). Those cases uniformly hold that where an allegedly deceptive act or practice arises out of a controversy which is essentially private in nature, and which has no actual or potential effect on the general public, it is beyond the purview of the Federal Trade Commission Act. See California Apparel Creators v. Wieder of California, Inc., 68 F.Supp. 499, 506 (S.D.N.Y.1946), modified, 162 F.2d 893 (2d Cir.), cert. denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947). See also Northam Warren Corp. v. Federal Trade Commn., 59 F.2d 196, 198 (2d Cir. 1932); Federal Trade Commn. v. Cinderella Career & Finishing Schs., Inc., 404 F.2d 1308, 1313 (D.C.Cir.1968); Spiegel, Inc. v. Federal Trade Commn., 494 F.2d 59 (7th Cir.), cert. denied, 419 U.S. 896, 95 S.Ct. 175, 42 L.Ed.2d 140 (1974). Although we recognize that the Federal Act, unlike our own statute, provides for no private right of action, and that the public interest language in § 1(b) apparently was not intended to be limiting, or to create a separate element of the...