Opinion
14-P-471
04-07-2015
PATRICIA L. AUGUST & others v. GEORGE KOROUSOS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, George Korousos, appeals from a judgment in favor of the plaintiffs awarding them the amount of $40,000 on their action for breach of contract and negligent misrepresentation, after a trial without jury in the Superior Court. The only issue on appeal is whether various financial documents reflecting the plaintiffs' claimed repair expenses were properly admitted in evidence as business records. We affirm.
Briefly, Korousos owned certain property that was used as a dormitory for the International Institute of Culinary Arts, which he also operated. He decided to sell the dormitory property, and the Augusts decided to purchase it. The parties executed a purchase and sales agreement that provided for a certain closing date. Because the Augusts wanted to operate the dormitory as a boarding house, the purchase was contingent on Korousos having a valid license for the facility, which was represented he had. After the initial agreement for the purchase by the Augusts and the sale by Korousos was executed, the Augusts discovered that the structure required extensive repairs and alterations. After discussion of these matters with Korousos, he agreed that the repairs and alterations were required, and the parties entered into a supplemental agreement that provided, among other items, to an extension of the closing date and that the Augusts would have immediate access to the property and permission to make the repairs and alterations. Korousos agreed that, in the event the deal did not close through no fault of the Augusts, Korousos would reimburse them for their repair expenses. Throughout their subsequent repair activity, the Augusts continued to be concerned whether the property was properly licensed for its intended use, and neither Korousos nor his broker produced the required boarding house license, which they had represented Korousos had. Eventually, the Augusts discovered that no such license existed and that to obtain the required license they would need to apply for a variance, as well as Korousos's cooperation.
Clause 5 of the modification agreement, dated August 2, 2004, states: "In the event that, for any reason other than buyer's default, the property transfer anticipated by the referred to purchase and sale agreement does not occur[,] and the property at 635 Rock Street, Fall River, Massachusetts is not conveyed to the buyer, then (1) seller shall immediately pay to buyer the full cost of any and all said modifications, repairs, replacements for all those items referred to in paragraph [one], sections a through q, hereinabove, notwithstanding the limit of seller's obligations referred to in paragraph numbered 2 hereinabove and (2) seller shall, at buyer's option, either immediately pay to buyer the full cost of any and all furniture and/or furnishings brought onto the subject property as referred to in paragraph numbered [three] hereinabove, or allow buyer the right to the immediate removal of said furniture and/or furnishings."
While the Augusts were willing to continue towards completing the repairs and getting the appropriate permits, Korousos, in the judge's words, "lost interest" at that point, as he sold the property to another purchaser rather than cooperate with the Augusts to obtain the license. The broker then showed up at the property, ordered the Augusts to vacate and informed them that the property had been sold to another buyer. Korousos refused to reimburse the Augusts for their repair costs. Suit by the Augusts then ensued, the $40,000 judgment was entered, and this appeal followed.
The plaintiffs' damages consisted of the payments they made for repairs to Korousos's property during the period they were permitted by him to be in possession and make repairs, before they were ordered off the property.
Korousos claims that the judge improperly admitted certain documents in evidence and contends that these documents constitute hearsay that was not made admissible through the business records exception. A trial court judge's evidentiary decisions are reviewed under an abuse of discretion standard. N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013). Under the provisions of G. L. c. 233, § 78, business records are admissible if they are made in good faith, in the regular course of business, before the action begins, and it was the regular course of such business to make the record at or about the time of the transactions or occurrences recorded. See McLaughlin v. CGU Ins. Co., 445 Mass. 815, 819 (2006). Section 78 should be interpreted liberally to permit the receipt of all relevant evidence. See Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982). The foundation of admissibility of the records need not be established by the testimony of the preparer, or even the transmitter. McLaughlin, supra.
Trial exhibits 10-17 and 19.
The testimony of Patricia L. August established that the challenged invoices, receipts, and cancelled checks were all created before litigation and in the ordinary course of the contractors' or suppliers' business at or near the time of the transactions, were made in good faith, and in the ordinary course of these various businesses, whether contractor, exterminator, plumber, mover, or other. She authenticated that these exhibits related to expenses the Augusts necessarily relied upon in making and paying for repairs to the property in question, pursuant to the permission obtained in the modification agreement, and within the express obligation of the defendant to reimburse. Furthermore, the Augusts testified as to not only the repair costs, but also that they submitted the bills to the defendant, pursuant to the modification agreement.
Korousos has not challenged the necessity of the repairs, that such repairs were made, the reasonableness of the amount of those repairs, or any of the judge's findings of fact.
Judgment affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 7, 2015.