Opinion
No. 11–P–1110.
2012-08-13
Maria RODRIGUEZ v. William BIEDUGNIS.
By the Court (MILLS, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a breach of contract action concerning a failed restaurant sale. After a jury-waived trial the judge delivered findings from the bench. The judge found that plaintiff Rodriguez paid defendant Biedugnis $100,000 for the restaurant, that Biedugnis breached various terms of the sale, and that Rodriguez therefore was entitled to the return of her purchase price (less about $12,000 in setoffs). Biedugnis appeals. We affirm.
We review the factual findings for clear error and the legal conclusions de novo. See Panagakos v. Collins, 80 Mass.App.Ct. 697, 701 (2011). The evidence supported the following view of the facts. Biedugnis owned and operated a restaurant called Bill's Grill. In 2008 he decided to sell; Rodriguez decided to buy. The parties agreed on a sales price of $100,000, with ten percent down and the balance to be paid on a certain day in cash. In return, Biedugnis represented that he would ensure that all necessary permits and licenses were transferred to Rodriguez; likewise with the lease. The parties understood that Rodriguez was purchasing a “turn-key” operation. Rodriguez made the down payment, paid the balance as specified, and attempted to take control of the operation. Shortly thereafter, she was informed by the health department that there were issues with her permits, that the existing licenses and permits could not be transferred directly to her, and that a multitude of relatively minor physical plant and hygiene matters had to be dealt with and remedied before appropriate permits and licenses could be issued. As it later turned out, Biedugnis had made no efforts to have the appropriate licenses and permits transferred to Rodriguez and, in fact, those licenses and permits could not have been transferred directly had he actually made the attempt. During this process, about one week after Rodriguez paid the cash balance, it also transpired that the lease for Bill's Grill had expired by its own terms and the landlord was unwilling to extend or renew it. Again, it appears that Biedugnis had never contacted the landlord to inquire either about an extension or about having the then-existing lease transferred to Rodriguez. Sometime in December, 2008, about ten months after the sale and after attempting to meet the health department's objections, Rodriguez found herself locked out of Bill's Grill (at the time, Rodriguez believed that the landlord had locked her out). Rodriguez then walked away and filed this action against Biedugnis for breach of contract.
Rodriguez also claimed misrepresentation but the judge found against her on those counts and she did not file a cross-appeal.
Biedugnis first argues that the evidence is insufficient to support the judge's findings that he breached the contract and that rescission was an appropriate remedy. Based on our review of the record, we simply disagree.
Biedugnis next argues that the damages award was excessive because Rodriguez failed to mitigate her damages. It seems that, a few days before being “locked out” of the restaurant and walking away, Rodriguez was “offered” $50,000 for the restaurant. Rodriguez correctly asserts that the record is devoid of any evidence tending to show that this offer was genuine or that the offeror was actually ready and willing to pay. It is also not entirely certain that the restaurant was, in fact, able to be sold, given the problems with the licenses and permits.
Biedugnis also claims that Rodriguez failed to mitigate her damages when she simply “walked away” from the restaurant after being locked out. His point appears to be that Rodriguez should have sued somebody for locking her out. Insofar as we can discern, when Rodriguez “walked away” she believed that the landlord had locked her out because neither she nor Biedugnis had a lease. During discovery, however, it turned out that it was one of Rodriguez's former employees named Lisboa. Biedugnis seems to assert that Rodriguez had the duty to mitigate her damages by suing Lisboa. We see nothing in the record tending to show that an attempt to sue Lisboa would have netted Rodriguez anything, let alone have worked to mitigate Rodriguez's damages.
Judgment affirmed.