Szalla v. Locke, 92-P-1373

• Citation: 37 Mass.App.Ct. 346,639 N.E.2d 1096
• Decision Date: 29 November 1994
• Docket Number: No. 92-P-1373,92-P-1373
• Parties: Eugene D. SZALLA v. Simeon LOCKE.
• Court: Appeals Court of Massachusetts

Page 1096

639 N.E.2d 1096

37 Mass.App.Ct. 346

Eugene D. SZALLA v. Simeon LOCKE.

No. 92-P-1373.

Appeals Court of Massachusetts Essex.

Argued Dec. 6, 1993.

Decided Sept. 28, 1994.

Further Appellate Review Granted Nov. 29, 1994.

Thomas G. Hoffman, Boston, for defendant.

Victoria A. Casey, Boston, for plaintiff.

Before BROWN, PERRETTA and JACOBS, JJ.

PERRETTA, Justice.

After a trial on claims arising out of the parties' attempt to start a retail nursery business together, the jury returned verdicts in favor of the plaintiff on those counts of his complaint seeking damages for deceit and breach of a partnership agreement and recovery in quantum meruit. ¹ The Superior Court judge made his own findings on the plaintiff's claim under G.L. c. 93A, § 11. He found that the defendant had been deceptive, concluded that his acts were comprehended by § 11, and awarded the plaintiff reasonable attorney's fees and costs. The issues before us on appeal are whether the trial judge erred in denying the defendant's motion for judgments notwithstanding the verdicts and whether the plaintiff's claim is a dispute between partners and outside the reach of § 11. ² Concluding that there is no basis for disturbing the jury verdicts and that the unfair act was within the purview of § 11, we affirm the judgments. ³

1. The evidence. There was evidence to show that for about four years after his 1965 purchase of the Highlands Nursery (Highlands) in Boxford, the defendant conducted a wholesale and retail nursery business with the assistance of his wife and a field hand. The business made a profit in only one year and the retail portion of the business was discontinued until 1986. At that time, the defendant's neighbor, Rick Heywood (Heywood), built a retail greenhouse on the property under an arrangement with the defendant who paid half the cost of construction. He and Heywood then operated a retail business in which they shared equally in the profits and losses. That business was abandoned in July, 1987.

One evening in September, 1987, the defendant and his wife made a social call upon another neighbor, the plaintiff. Impressed with the deck and landscaping that the plaintiff had designed and constructed, the defendant broached with the plaintiff the possibility of a partnership in the retail nursery business. The plaintiff agreed to think the matter over and get back to the defendant within two weeks. His enthusiasm for the project prompted him to return to the defendant within four or five days to tell him that he wished to join him in the nursery enterprise. He immediately began drawing designs for the greenhouse and an attached shed. When he again met with the defendant two weeks later, he brought his drawings with him. From October through January, 1988, the parties had numerous meetings and discussions concerning the development of the business.

Throughout this period, the plaintiff and the defendant negotiated the terms of their business arrangement. The retail enterprise was to be known as Boxford Gardens at Highlands Nursery (Boxford Gardens). Highlands was to pay, without reimbursement, all costs of renovation of the greenhouse and shed. The plaintiff was to supply, without pay, all the labor. Until Boxford Gardens generated income, Highlands would pay the cost of its inventory and operating expenses. Highlands was also to absorb all Boxford Gardens' losses until there was income and profits, which were to be shared equally. ⁴ Although both partners would make all major policy decisions, the plaintiff was to be in charge of the day-to-day operation of the business which, as of the 1988 Easter weekend, would be open seven days a week from April through December. The defendant was to give the plaintiff a right of first refusal to buy the business should he (the defendant) and his wife retire or die. Neither the terms of the business agreement nor of the right of first refusal were ever reduced to writing. In January of 1988, the plaintiff and the defendant viewed the terms of their association as set. They met with a certified public accountant and filled out an application for an employer identification number in which they indicated to the Internal Revenue Service that their business was a partnership.

Although there was an understanding between the parties that Boxford Gardens was to open for Easter business on April 1, 1988, that anticipated opening date never had been critical until the last week in March. On March 26, the defendant became insistent that the nursery open for business on the following Friday. At that time, the renovations were almost complete. However, some work remained to be done, and the plaintiff complained that he was tired and sore from all that he had been doing and that he could not concentrate on finishing the renovations if he also had to attend to customers. Viewing these complaints as less than manly, the defendant lost his temper and made certain derogatory remarks to the plaintiff. Those remarks caused the plaintiff to become considerably upset and to believe that the defendant was ending their business association. He asked if he could keep the keys to the greenhouse until the next day so that he might remove his tools and other belongings from the premises. The defendant, also believing his association with the plaintiff to be at an end, assented.

Boxford Gardens, after many hours of work by the defendant and his wife, opened on the defendant's schedule but did little business over the Easter weekend. Thereafter, however, Boxford Gardens became, and remained as of the time of trial, a viable retail garden center owned and operated by the defendant and his wife.

2. The jury verdicts. Arguing that a partner has the lawful right to dissolve at any time an at-will partnership of indefinite duration, see Johnson v. Kennedy, 350 Mass. 294, 298, 214 N.E.2d 276 (1966) and Doiron v. Castonguay, 401 Mass. 705, 707, 519 N.E.2d 260 (1988), the defendant claims that it was error to deny his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. See Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). The defendant cannot, however, assert this claim on appeal for the following reason.

At the close of the plaintiff's case, the defendant moved for a directed verdict on the specific ground that the evidence was insufficient to prove a wrongful termination of the partnership agreement. The trial judge denied the motion which was not renewed at the close of the defendant's case. ⁵ "Failure to renew the motion ... generally results in a waiver of the right to assert error in the denial of a directed verdict. Martin v. Hall, 369 Mass. 882, 884-885 (1976). It also results in a waiver of the right to appeal the denial of the [defendant's] subsequent motion for a judgment notwithstanding the verdict. See Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974); Sears v. Pauly, 261 F.2d 304, 306-307 (1st Cir.1958)." Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 9, 453 N.E.2d 430 (1983).

There is authority for the proposition that notwithstanding a failure to renew the motion for a directed verdict, a "new trial may be granted where 'a jury's verdict is wholly without legal support ... in order to prevent a manifest injustice [emphasis supplied]." Hatton v. Meade, 23 Mass.App.Ct. 356, 362, 502 N.E.2d 552 (1987), quoting from Sojack v. Hudson Waterways Corp., 590 F.2d 53, 54-55 (2d Cir.1978). We, however, see nothing in the record before us that requires the conclusion that the verdict is "inconsistent with substantial justice." Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. at 9, 453 N.E.2d 430.

In responding to the complaint, the defendant did more than deny the plaintiff's claim that he committed a breach of the partnershipagreement. He went on to assert a counterclaim in which he detailed the terms of the partnership agreement and alleged that the plaintiff himself committed specifically described acts in breach of that agreement. After his motion for a directed verdict was denied, the defendant then went forward to present evidence to the effect that the plaintiff was in breach of the partnership agreement when he refused to open Boxford Gardens for Easter business and, instead, renounced his association with the defendant and left the premises with his belongings. His testimony was important to the outcome on both the plaintiff's complaint and his counterclaim. See Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. at 9, 453 N.E.2d 430. The jury were instructed to apply the same principles of law in deciding both the plaintiff's claim and the defendant's counterclaim for breach of the partnership agreement. The defendant took no objection to the instructions that were given. ⁶

In short, the basis upon which the defendant currently argues that he was entitled to a judgment notwithstanding the verdict, namely, that he had a lawful right to dissolve the partnership, was not the defendant's theory of the case at trial. Rather, it was the defendant's trial strategy to claim that it was the plaintiff, and not he, who was in breach of the partnership agreement. "The theory of law on which by assent a case is tried cannot be disregarded when the case comes before an appellate court for review of the acts of the trial judge." Santa Maria v. Trotto, 297 Mass. 442, 447, 9 N.E.2d 540 (1937). Kagan v. Levenson, 334 Mass. 100, 106, 134 N.E.2d 415 (1956). Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 n. 25, 583 N.E.2d 806 (1991). In these circumstances, we conclude that the verdict is not inconsistent with substantial justice. ⁷

Because the jury also awarded the plaintiff damages on his claim in quantum meruit, the defendant argues that the damages awarded for breach of the partnership agreement are cumulative. ⁸ "Permitting awards under several counts where claims and injuries are factually distinguishable, but disallowing such recovery where they are...