Opinion
No. 11–P–1738.
2012-10-25
John P. TALLARICO & another v. Stephen J. MURPHY & others.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 10, 2011, the plaintiffs (the Tallaricos) filed a complaint in the Superior Court against defendants Stephen J. and Marjorie Murphy (the Murphys) seeking to void, on the grounds of fraud and misrepresentation, a promissory note and mortgage given by the Tallaricos to the Murphys in March of 2005. The Tallaricos allege in the complaint that the Murphys, in seeking to enforce payment against the Tallaricos but not against fellow borrower Michael Murphy (Michael), are engaging in “inequitable enforcement.” The Murphys filed a motion to dismiss, which was granted by the Superior Court. The court entered separate and final judgment on July 15, 2011, and the Tallaricos duly appealed. The appeal arises from events that occurred in March, 2005, when the Tallaricos formed a corporation with Michael Murphy. The coventurers needed capital, and agreed to borrow from Michael's parents, the Murphys. In return for a loan of $200,000, John Tallarico and Michael, as borrowers, executed a promissory note payable to the Murphys in that amount. The note was to be secured by separate mortgages on the respective homes of the Tallaricos and Michael. In October, 2007, Paul F. Tierney, Jr., on behalf of the Murphys, demanded payment on the note from the Tallaricos.
We review the motion to dismiss under the familiar standard. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635–636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (“What is required at the pleading stage are factual ‘allegations plausibly suggesting [not merely consistent with]’ an entitlement to relief”).
To support their misrepresentation claims on the note and mortgage the plaintiffs rely on their allegation that the defendants represented to them at the time of the loan agreement that the “note was to be enforced equitably.” Even assuming the allegation is true, the dismissal of the claims was proper. As provided in G.L. c. 106, § 3–116( a ), “except as otherwise provided in the instrument, two or more persons who have the same liability on an instrument as makers, drawers, acceptors, indorsers who indorse as joint payees or anomalous indorsers are jointly and severally liable in the capacity in which they sign.” The Murphys were within their legal rights to seek payment of the debt only from the Tallaricos, because the Tallaricos were jointly and severally liable with Michael. See Trinh v. Gentle Communications, LLC, 71 Mass.App.Ct. 368, 376 n. 9 (2008). That fact does not alter the right of the Tallaricos to seek contribution from their joint and several co-maker, Michael. See Awed v. Marsico, 27 Mass.App.Ct. 1140, 1142 (1989).
For the foregoing reasons, and substantially for the reasons stated in the appellee's brief at pages 5–7, the judgment is affirmed. To the extent that we have not addressed other specific claims made by the plaintiffs, they have not been overlooked. We have considered them and have found them to be without merit.
Judgment affirmed.
Sarah F. Tallarico.