Opinion
19-P-598
10-22-2020
Anthony VEGNANI v. MASS MEDICAL SERVICES, INC., & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Michael DeLeo appeals from a judgment, and from orders denying his motions for a new trial and to vacate or amend the judgment, following a jury verdict awarding damages to plaintiff Anthony Vegnani. We affirm.
Prior to trial, Vegnani successfully moved for partial summary judgment, establishing DeLeo's obligation to pay Vegnani severance under an employment agreement, and that ruling was incorporated in the judgment. Judgment entered against defendant Mass Medical Services, Inc., alongside DeLeo, but the company's appeal was dismissed for want of prosecution.
DeLeo assigns error to the trial judge's grant of partial summary judgment, arguing that the severance portions of the parties' agreement were ambiguous and thus presented an issue of material fact for the jury. Paragraph five of the agreement afforded severance equal to the prior year's compensation "[i]f either party voluntarily terminates their working relationship with the company." Paragraph six was similar, but entitled the terminated party to double that amount "[i]f either party involuntarily (but agreed to by both parties) terminates their working arrangement with the company."
As DeLeo conceded in his brief opposing summary judgment, "[it] might make sense" that the agreement provided "two separate provisions for two different types of termination." We agree with the motion judge, who was also the trial judge, that these provisions unambiguously covered the universe of termination scenarios, both voluntary and involuntary.
Conversely, the interpretation DeLeo advances -- that the "involuntary" terminations covered by paragraph six were only a small subset of voluntary departures precipitated by circumstances beyond Vegnani's control, such as divorce or disability -- is unreasonable. "[A]n ambiguity is not created simply because a controversy exists between the parties, each favoring an interpretation contrary to the other." Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995), citing Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472, 475 (1987). We discern no error in the allowance of Vegnani's motion for partial summary judgment.
Contrary to DeLeo's contention on appeal, Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. 599 (2003), does not suggest a different result. The summary judgment record in the present case, in contrast to Prozinski, included no evidence supporting DeLeo's claim that Vegnani breached the contract, and in any event DeLeo made no argument based on that theory in his written opposition to Vegnani's motion.
The balance of DeLeo's arguments were not properly raised below and thus are waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). In any event, they appear to be without merit: (1) the agreement contemplated the duties of and benefits to DeLeo himself (in addition to Mass Medical Services, Inc.) and thus plainly bound him individually; and (2) the agreement, which contained no time limit on its face, was in effect at the time of Vegnani's termination.
DeLeo's argument that Vegnani did not personally serve him is waived, both because he did not raise the issue in the lower court and because he litigated the merits of the case to its conclusion. See Raposo v. Evans, 71 Mass. App. Ct. 379, 383 (2008).
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Finally, as we find no error in the judge's allowance of Vegnani's motion for partial summary judgment, it follows that it could not have tainted the subsequent trial. DeLeo's posttrial motions on that ground were properly denied.
The judgment and the orders denying the motions for a new trial and to vacate or amend the judgment are affirmed.
So ordered.
Affirmed.