Opinion
14-P-204
06-24-2015
RAYMOND JANISCH v. ELAINE MAVROS, personal representative.
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 plaintiff appeals from a judgment for the defendant entered after a Superior Court judge allowed the defendant's motion for a directed verdict at the close of the plaintiff's case.
The plaintiff, Janisch, retained the defendant, Mavros, to represent him in an action filed by a former employee who had been injured on the job. Janisch did not have workers' compensation insurance for the employee, and, thus, faced strict liability in the action. However, Janisch had a release, signed by the employee, releasing him from all liability for the injury in exchange for twenty-five hundred dollars (release). At the time Janisch hired Mavros, the employee had commenced suit against him, and Janisch had defaulted in the action. Janisch claimed that he instructed Mavros to file a summary judgment motion to dispose of the action quickly on the basis of the release.
Eli G. Mavros died while this action was pending in the trial court. His personal representative has been substituted as a party. We will continue to refer to the defendant as Mavros.
In the defendant's motion to remove default, Mavros stated as grounds that:
"[T]he [d]efendant says that he did not serve or file an [a]nswer or other responsive pleading to the [c]omplaint filed by the [p]laintiff, due to the fact that the [d]efendant believed that the matter between he and the [p]laintiff had been resolved when the plaintiff of his own free will and without coercion, for consideration paid, released the defendant, in writing, from all claims arising out of the allegations set forth in the [p]laintiff's [c]omplaint. A copy of the release is attached to [d]efendant's [a]nswer filed herewith."In the accompanying answer to the employee plaintiff's complaint, Janisch asserted as a sixth affirmative defense, "The [p]laintiff released the [d]efendant from all claims of injury and damages arising out of the event alleged in the plaintiff's complaint and is not entitled to recover from this [d]efendant. A copy of said [r]elease is attached hereto."
Mavros successfully obtained the employee's counsel's assent to the removal of the default, but in a stipulation promised "that if the [r]emoval of the [d]efault is allowed, the defendant will not use the agreement in an argument for res judicata in any future proceeding." In addition, counsel for the employee questioned the validity of the release, claiming that the employee had not signed it or that it had been signed under false pretenses. Mavros never sought any discovery in the matter and he never raised the issue of the release.
Mavros filed a motion to dismiss based on the ground that Janisch could not be sued because the workers' compensation statute barred such lawsuits against employers, notwithstanding that Janisch had admitted that he had no workers' compensation insurance at the time of the alleged injury.
Eventually, Janisch discharged Mavros and hired new counsel, who filed a summary judgment motion raising the issue of the release. That motion was denied on the ground that whether the employee signed the release and the employee's state of mind at the time he signed the release were disputed facts. A jury returned a verdict for the employee, but the trial judge allowed Janisch's motion for judgment notwithstanding the verdict, on the ground that the release was valid on its face and the employee failed to meet his burden of demonstrating fraud. We affirmed that decision on appeal. Forbes v. Janisch, 73 Mass. App. Ct. 1128 (2009).
Janisch then commenced this action against Mavros alleging breach of contract and unjust enrichment. At the core of these claims was the allegation that Mavros had "verbally assured Janisch that he would use the signed release to obtain a quick resolution of the [employee's suit] and Janisch's involvement." The case proceeded to a jury trial, during which Janisch focused on Mavros's failure to file a motion for summary judgment based on the written release and his failure to take discovery. At the close of Janisch's case, the judge allowed Mavros's motion for a directed verdict. The judge noted that Janisch had acknowledged during his testimony that there was "a little bit" of evidence that the employee either did not sign the release or signed it under false pretenses. He concluded that Janisch's admission on this point "clearly and conclusively establishes that as a matter of law, Mavros would have been unable to prevail, even if he had filed a summary judgment motion in the 2002 matter and used the plaintiff's release as grounds for such motion." As a result, he ruled, "the plaintiff here cannot point to any breach having been committed by Mavros that would have resulted in a different outcome." With respect to damages, the judge ruled that:
"Janisch at trial suggests that he was economically harmed by Mavros's representation. It is to be noted that whether Mavros or another attorney represented Janisch, the case would have been tried based upon the denial of the summary judgment motion. Janisch's other claims of damages as testified to at trial and without any documentation or corroboration are so vague and remote as to preclude any recovery by him upon a failure of proof of damages, even if liability could be established in this case. And, as has been set out supra, there has been no evidence presented from which a jury could determine liability for breach of contract or unjust enrichment as claimed by the plaintiff in his complaint."
The posture of this case is unusual. Although the judge allowed Mavros's motion for directed verdict, he assumed arguendo in his findings and rulings that Janisch had established a breach of the contract. The judge then addressed the question of actual damages resulting from the breach and found none. We do not discern error in the judge's ruling on damages. Cf. Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 321 (2003). "The fundamental premise of 'contract damages is that the aggrieved party should be put in as good a position as if the other party had fully performed.' . . . Accordingly, [the plaintiff's] contract damages should not exceed the value of the benefit of which he was deprived." Selmark Assocs. v. Ehrlich, 467 Mass. 525, 543 (2014), quoting from Quinn Bros. v. Wecker, 414 Mass. 815, 817 (1993). We agree with the judge's determination that, because a motion filed by Mavros for summary judgment was unlikely to be successful in light of the employee's challenges to the release, the case was likely to proceed to trial anyhow; as a result, Janisch cannot prove that he was damaged by the breach. Indeed, a summary judgment motion that was eventually filed by successor counsel was denied.
To the extent the judge's decision could be interpreted to conclude that there was no evidence of a breach, it would be error, as there was some evidence that Mavros promised to submit a summary judgment motion on the basis of the release and he failed to do so.
We further find unpersuasive and speculative Janisch's claim that, had Mavros conducted discovery concerning the employee's signing of the release and his state of mind at the time, the summary judgment motion would have succeeded. See White Spot Constr. Corp. v. Jet Spray Cooler, Inc., 344 Mass. 632, 635 (1962), quoting from John Herrington & Sons Ltd. v. William Firth Co., 210 Mass. 8, 21-22 (1911) (with respect to breach of contract damages, "the complaining party must establish his claim upon a solid foundation in fact, and cannot recover when any essential element is left to conjecture, surmise or hypothesis"); Phelan v. May Dept. Stores Co., 443 Mass. 52, 55 (2004), quoting from McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 706 n.3 (1990) (any inference that could be drawn in favor of the nonmoving party "must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture"); Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 833 (2015).
In this case, although we conclude that the judge did not err in determining that the plaintiff had failed to establish actual damages, it was error to allow a motion for directed verdict where the judge had determined, or at least assumed for the purposes of his analysis, that the plaintiff had proved a breach of contract. See Nathan v. Tremont Storage Warehouse, Inc., 328 Mass. 168, 171 (1951). "The breach, being established, carries with it at least nominal damages." Ibid. See Holt v. County Bdcst. Corp., 343 Mass. 363, 366 (1961), citing King Features Syndicate, Inc. v. Cape Cod Bdcst. Co., 317 Mass. 652, 655 (1945) ("[t]here was evidence of breach of the contract which entitled the plaintiff at least to nominal damages"); MacDonald v. Stack, 345 Mass. 709, 711 (1963). Because there are only nominal damages here, it would serve no useful purpose to send the case back for a new trial. See Giannasca v. Everett Aluminum, Inc., 13 Mass. App. Ct. 208, 212-213 (1982). Accordingly, we vacate the judgment below and award nominal damages in the amount of one dollar to the plaintiff. See Centennial Elec. Co. v. Morse, 227 Mass. 486, 491 (1917) (error in allowing directed verdict for breach of contract, but as no damages were proved, the error did not affect "substantial rights of the parties"; accordingly, "judgment is to be entered . . . for nominal damages only, in the sum of [one dollar]"); Lord's & Lady's Enterprises, Inc. v. John Paul Mitchell Sys., 46 Mass. App. Ct. 262, 270 (1999) (modification of the judgment to award nominal damages in the amount of one dollar only).
The judgment is vacated, and a new judgment is to enter for nominal damages in the amount of one dollar.
By the Court (Katzmann, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 24, 2015.