Opinion
16-P-710
03-28-2017
PERRONE LEATHER APPAREL, INC. v. Michael VAN DER SLEESEN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This commercial dispute relates to a contract to manufacture leather flight jackets and leather flight helmets. Applying the well-founded reasoning of the Appellate Division of the District Court Department, we affirm.
"In reviewing the decision of the Appellate Division, we can enter such order as that court ought to have entered." Worldwide Commodities, Inc . v. J. Amicone Co ., 36 Mass. App. Ct. 304, 308 (1994). After judgment by a District Court, an "appellant is barred from pursuing in the Appeals Court a claim of error that it failed to raise at the Appellate Division."Gossels v. Fleet Natl. Bank , 453 Mass. 366, 371 (2009), quoting from Perlin & Connors, Civil Procedure in the Massachusetts District Court § 12.26, at 160 (3d ed. Supp. 2007).
Background . We recite the relevant and undisputed facts set forth in the Appellate Division's decision and order. The parties entered into an agreement for the defendant, Vanson Leathers, Inc. (Vanson), to fabricate leather flight jackets and helmets for the plaintiff, Perrone Leather Apparel, Inc. (Perrone), using materials, including leather, supplied by Perrone.
Perrone delivered the leather to Vanson's plant in Fall River, and Vanson shipped the leather to El Salvador, where the jackets were to be manufactured at a plant affiliated with Vanson. After the leather had been shipped to El Salvador the parties discovered that it was too heavy to be suitable for its intended use. Still, Vanson produced thirty-four jackets for Perrone, using the initial number of zippers Perrone had provided for the project. Vanson delivered those jackets to Perrone together with the patterns for the jackets.
The zippers included the Perrone logo.
The overweight jackets were unsatisfactory to Perrone, and Vanson ceased production. The parties were unable to resolve their ensuing competing claims. The excess leather remained in El Salvador and Vanson did not pay Perrone for retaining that material. Perrone, in turn, did not pay Vanson for the thirty-four finished jackets.
Perrone sued Vanson, and its principal, Michael van der Sleesen (van der Sleesen), in District Court, claiming $8,800 in damages calculated as the asserted value of the leather retained by Vanson minus the contracted-for price for the thirty-four fabricated jackets. Vanson and van der Sleesen counterclaimed separately, for damages on various theories including breach of contract, abuse of process, and a violation of G. L. c. 93A, § 11.
Perrone's verified complaint included the following three counts: (i) breach of contract against van der Sleesen and Vanson (count I); (ii) quantum meruit/unjust enrichment against Vanson only (count II); and conversion against van der Sleesen and Vanson (count III).
In sum, the parties amassed a total of nine claims and counterclaims in the District Court that were resolved in various stages by rulings on motions for a directed verdict, by the trial judge's decision on the charge of violation of c. 93A, and by jury verdicts. The Appellate Division affirmed the outcome in the District Court in all respects.
Although Vanson's notice of appeal to the Appellate Division did not specifically seek a review of the judgment for Perrone on its conversion claim, the Appellate Division reached that issue. See Dist./ Mun.Cts.R.A.D.A. 3(c) & 8C; Gossels , 453 Mass. at 371.
Discussion . Four of the multiple claims and counterclaims litigated in the District Court are before us on appeal. Those are: (1) whether the trial judge erred in entering a directed verdict dismissing van der Sleesen's abuse of process counterclaim, (2) whether the trial judge erred in entering judgment for Perrone on van der Sleesen's c. 93A counterclaim, (3) whether the trial judge erred in instructing the jury on certain affirmative defenses to Vanson's breach of contract counterclaim, and (4) whether the trial judge erred in denying Vanson's motion for directed verdict on Perrone's conversion claim.
1. Abuse of process . The required elements of abuse of process are: "(1) 'process' was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage." Gutierrez v. Massachusetts Bay Transp. Authy ., 437 Mass. 396, 407 (2002), quoting from Datacomm Interface, Inc . v. Computerworld, Inc ., 396 Mass. 760, 775-776 (1986).
Here, no evidence presented at trial supported the notion that Perrone was aware of any legal or evidentiary impediments to bringing a claim against van der Sleesen personally. Even if van der Sleesen is correct that Perrone had no viable legal basis for naming him in the suit individually, he has not shown that Perrone harbored some collateral illegitimate or ulterior purpose, "which was not the legitimate purpose of the particular process employed." Millennium Equity Holdings, LLC v. Mahlowitz , 456 Mass. 627, 636 (2010) (quotation omitted). Accordingly, there was no error in the entry of directed verdict for Perrone on the abuse of process claim.
2. G. L. c. 93A . Similarly, we agree with the Appellate Division that van der Sleesen made no showing at trial of unfair or deceptive practices, and we note that van der Sleesen sued as a commercial party engaged in trade or commerce pursuant to G. L. c. 93A, § 11 (and not as a consumer, pursuant to G. L. c. 93A, § 9 ). See Duclersaint v. Federal Natl. Mort. Assn ., 427 Mass. 809, 814 (1998) ("[A] good faith dispute as to whether money is owed, or performance of some kind is due, is not the stuff of which a c. 93A claim is made"); Giuffrida v. High Country Investor, Inc ., 73 Mass. App. Ct. 225, 239 (2008), quoting from Chapter 93A Rights & Remedies § 2.5, at 2-67 (Mass. Cont. Legal Educ. 2d ed. 2007) ("[B]usinesses seeking relief under Section 11 are held to a stricter standard than consumers in terms of what constitutes unfair or deceptive conduct").
Van der Sleesen's claim that he was personally engaged in trade or commerce for purposes of c. 93A seems to be at odds with his claim that there was no basis for Perrone's naming him in the suit. No party has, however, challenged the trial judge's finding that van der Sleesen was engaged in trade or commerce, and so we need not revisit that issue.
3. Vanson's breach of contract claim . We agree as well with the Appellate Division's determination that the jury deducted the amount Perrone owed Vanson for the completed jackets from the amount it awarded Perrone for the retained leather on Perrone's conversion count. Because the jury's award accounted for Vanson's purported entitlement to be paid for its work on the completed jackets, Vanson made no plausible showing that the jury would have reached a different result had they ruled in Vanson's favor on its counterclaim for breach of contract. Accordingly, purported errors in the jury instructions relating to Vanson's contract counterclaim do not give rise to a basis for reversal. See Global Investors Agent Corp . v. National Fire Ins. Co ., 76 Mass. App. Ct. 812, 825 (2010).
Perrone conceded from the start that Vanson was owed $3,510 for the manufacture of the thirty-four jackets and that it sought only $8,800.03 in damages.
Vanson argues in its reply brief that it established a contract with Perrone to complete 1,000 jackets—not just thirty-four. We do not address arguments set forth for the first time in a reply brief. Factual references do not constitute argument. Briefs submitted to this court 'shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statues and parts of the record relied on.' Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Campbell Hardware, Inc . v. R.W. Granger & Sons, Inc ., 401 Mass. 278, 280-281 (1987).
4. Conversion . Vanson argues that its directed verdict motion should have been allowed because Perrone failed to show that it made a demand for return of the leather, and failed to show that Vanson had the leather within its control. We disagree.
We see no basis for reversing the Appellate Division's conclusion that the written correspondence between the parties established a demand for return of the leather. An invoice dated April 22, 2012, from Perrone to Vanson seeking payment of $8,800.83 for the remaining leather was admitted in evidence. As in Abington Natl. Bank v. Ashwood Homes, Inc ., 19 Mass. App. Ct. 503 (1985), the jury could have inferred from the totality of the correspondence between the parties "that the requisite demand and refusal had been made." Id . at 507.
Notwithstanding evidence that the plant in El Salvador was owned by an entity incorporated separately from Vanson, we also agree with the Appellate Division that the jury could have properly concluded from the evidence before it that the leather was sufficiently within Vanson's control to sustain the conversion claim against Vanson.
The plaintiff's request for appellate attorney's fees is denied.
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Decision and order of Appellate Division affirmed .