Opinion
13-P-1778
11-21-2014
TIMBERLINE ENTERPRISES, INC. v. JAMES PADRE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal from a judgment entered after a bench trial, the individual defendant, James Padre, argues that his motion for directed verdict was erroneously denied. At issue is whether the plaintiff's contract claim was barred by the statute of limitations.
The corporate defendant, Padre Construction, Inc., is not a party to this appeal.
The plaintiff, Timberline Enterprises, Inc. (Timberline), is a building materials supplier from whom the corporate defendant, Padre Construction, Inc. (Padre Construction), obtained a line of credit in November 2001. James Padre, who was Padre Construction's principal, "unconditionally guarantee[d] payment of any and all present or future obligations and indebtedness" incurred under the line of credit. Liability against the individual defendant is premised on his personal guaranty.
In 2005, Padre Construction placed a special order for windows through Timberline. Once the windows were delivered, Timberline sent an invoice dated March 3, 2005, in the amount of $50,324.77. Although the invoice did not explicitly state the date on which payment was due, the following statement appeared at the bottom of each page: "a finance charge computed at a periodic rate of 1 1/2% per month (18% annual percentage rate) is applied to past due accounts over 30 days." Padre Construction never paid this bill in full, and this suit was commenced on March 23, 2011.
The parties agree that the six-year limitations period of G. L. c. 260, § 2, applies to the plaintiff's claim. They part ways, however, on when the claim accrued. The defendant contends that the claim accrued on March 11, 2005, the date of the invoice, and that the claim is consequently time-barred. Timberline contends that the claim did not accrue until payment was due, thirty days later.
"The general rule in breach of contract cases is that a cause of action accrues when the contract is breached." Flannery v. Flannery, 429 Mass. 55, 58 (1999). Breach occurs if payment is not made when due. See Berezin v. Regency Sav. Bank, 234 F.3d 68, 73 (1st Cir. 2000). "The date of an alleged breach is a question of fact for the trier of fact." Karen Constr. Co. v. Lizotte, 396 Mass. 143, 149 (1985). Here, the judge, sitting as the trier of fact, found that the contract was not breached until April 10, 2005 -- the conclusion of the thirty-day period during which payment could be made without interest being added. In other words, the judge found that payment was not due for thirty days after the date of the invoice and, therefore, no breach occurred until the thirty days had passed.
A trial judge's findings after a bench trial must be accepted unless they are clearly erroneous. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996); Thurlow v. Shaw's Supermarkets, Inc., 49 Mass. App. Ct. 175, 177 (2000). Here, in light of the language on the invoice, a similar provision in the guaranty, and Michael Patil's testimony that thirty days was the time period for credit under the line of credit before interest would be assessed, the judge's finding was not clearly erroneous. As a result, there was no error in his conclusion that the statute of limitations had not run.
For the first time on appeal, Padre argues that the notation "1% 10 NET" on the invoice means that payment was due ten days from the date of the invoice. Even were we inclined to consider an argument not made below, e.g. Royal Indem. Co. v. Blakely, 372 Mass. 86, 87-88 (1977) (need not consider issues not raised at trial where other side might be prejudiced by failure to do so), the meaning of the notation is not so clear that it would make the judge's finding clearly erroneous.
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Judgment affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 21, 2014.