Opinion
14-P-1515
06-29-2015
ASSOCIATED HOME CARE, INC. v. JOHN F.X. O'LEARY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Associated Home Care, Inc. (Associated) commenced this contract/collection action seeking to recover on oral and written promises allegedly made by the defendant, John O'Leary, to pay for home services rendered to his mother. The alleged agreement concerns O'Leary's promise to pay for the value of the services provided by Associated to his mother, which totaled nearly $62,000. Following a jury-waived trial, a Superior Court judge entered judgment against O'Leary. We affirm.
1. Background. Very briefly summarized, the dispute grows out of home services rendered by Associated to O'Leary's mother, who was elderly and in need of nursing care, starting in June, 2007, and continuing through and ending in February, 2008. Because O'Leary's mother's husband had recently died and funds from his estate were not immediately available due to probate proceedings, O'Leary's mother was unable to pay for a portion of the care she received. Accordingly, sometime in 2007, O'Leary allegedly promised, both orally and in writing, that he would take care of the bills personally. However, O'Leary did not pay the outstanding balance on his mother's account.
Associated filed a complaint against O'Leary, seeking to recover the cost of services rendered to his mother. Associated also filed a motion for real estate attachment. After O'Leary's motion to dismiss was denied, the case proceeded to trial. As noted, after a jury-waived trial, a Superior Court judge entered judgment against O'Leary.
After trial, the judge issued extensive written findings concerning the existence of an oral agreement between the parties. Specifically, the judge found as follows:
"The Court also finds that the defendant had one or more conversations with agents and employees of the plaintiff corporation and agreed and promised to personally pay for those services provided to the defendant's [m]other by the plaintiff. In addition, finding is made that the plaintiff relied upon these representations ultimately to its detriment and that the defendant is now liable to the plaintiff as a result of the same.Having found the existence of a verbal agreement, the judge then carefully considered the application of the Statute of Frauds:
"The Court finds that on one or more occasions the defendant agreed to execute documents to the favor of the plaintiff securing his obligations to the plaintiff by collateralizing the same upon the defendant's parents' real estate. The defendant caused the plaintiff to expend time and professional resources to draft and deliver those documents to the defendant and that ultimately the defendant then withdrew his agreement to execute those documents without just cause and to the detriment of the plaintiff."
"Based upon findings made by the Court, ruling is now entered that the defendant's course of conduct in this matter, coupled with his written acknowledgement dated November 2, 2007, and the reliance assumed by the plaintiff in good faith and fostered by the defendant's repeated assurances all taken together remove this matter from the [S]tatute of [F]rauds and fix fully liability upon the defendant for payment of those services provided by the plaintiff to his mother at the defendant's request."Judgment was thereafter entered against O'Leary in the sum of $61,756.81, with interest. This appeal followed.
2. Motion to dismiss under rule 12(b)(6). First, O'Leary claims that the judge erred in denying his motion to dismiss because Associated failed to plead a claim which entitled it to relief. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). According to O'Leary, the plaintiff's complaint should have been dismissed because the complaint itself did not include an allegation, or reference to, a writing signed by O'Leary agreeing to pay his mother's debt, and the only document purporting to be that document, a 2007 letter from Associated to O'Leary, did not include a promise by O'Leary to pay his mother's debt. Therefore, O'Leary argues, any agreement between the parties was unenforceable due to a lack of a writing that satisfies the Statute of Frauds. We disagree.
Taken as true, the complaint alleges that between June of 2007 and February of 2008, Associated provided health care services to O'Leary's mother. The complaint also alleges that, because of O'Leary's mother's inability to pay for the services rendered, O'Leary "agreed to assume the responsibility for the charges incurred by Ms. O'Leary." In addition, the complaint alleges that, as a result of "that agreement," Associated continued to provide services to O'Leary's mother.
Filed contemporaneously with the complaint was a motion for attachment of O'Leary's real estate. Attached to the motion was an affidavit from Michael Trigilio, president of Associated. The affidavit indicated that on more than one occasion O'Leary agreed to "assume responsibility" for the services provided to his mother and that "agreement was reduced to writing on or about November 2, 2007." Additionally, attached to the affidavit, and submitted concurrently with the complaint, was a 2007 letter from Associated addressed to O'Leary. The letter was dated October 18, 2007, and signed by O'Leary on November 2, 2007.
From all that appears, the complaint and the motion for attachment, which included the affidavit from Trigilio and the 2007 letter from Associated addressed to O'Leary, were both filed on June 26, 2009. O'Leary referred to both documents in his memorandum in support of his motion to dismiss.
In relevant part, the 2007 letter from Associated to O'Leary provided as follows:
"We are aware that your father's estate is held up in Probate Court and you are unable to pay for services that are being done through our [c]ompany at this time for your mother, Margaret. As discussed with Mike Trigilio you are aware that we will be adding interest charges on a weekly basis to your mother's account until the account is paid in full. When your account is back in good standing, we will discontinue any new interest charges.
"The interest charge will be 10%. (As stated on the current rate sheet.) Going back to invoice date 7/18/07, the current balance as of today is $36,048.11."
"It is axiomatic that to create an enforceable contract, there must be agreement between the parties on the material terms of that contract, and the parties must have a present intention to be bound by that agreement." Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000). To bring an oral agreement to pay the debt of another outside the Statute of Frauds, there must be evidence of a memorandum or writing that contains the essential terms of the contract, the parties, and is signed by the party to be charged. See, e.g., Des Brisay v. Foss, 264 Mass. 102, 109 (1928); A.B.C. Auto Parts, Inc. v. Moran, 359 Mass. 327, 329 (1971).
To be borne in mind is that at the pleading stage, all that is required for a complaint to survive a motion to dismiss under Mass.R.Civ.P. 12(b)(6) are sufficient factual allegations "to raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true . . . ." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). Furthermore, "[i]n evaluating a rule 12(b)(6) motion, we take into consideration the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). See Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008).
Here, the judge could reasonably interpret the complaint and corresponding documents as containing "factual allegations plausibly suggesting" the existence of an enforceable agreement between the parties that had been reduced to writing. Iannacchino v. Ford Motor Co., supra at 635-636. In short, the complaint, taking all reasonable inferences in favor of Associated, and when viewed in light of the affidavit and 2007 letter, which were filed concurrently with the complaint, was sufficient to raise the right to relief beyond the speculative level. There was no error.
3. Statute of Frauds. Next, O'Leary claims, from what we can gather from less than clear argument, that there was insufficient evidence to support the existence of a verbal agreement between O'Leary and Associated and that, as a matter of law, the judge erred in finding that there was sufficient evidence to remove the alleged agreement from the Statute of Frauds. We find both arguments to be unpersuasive.
As noted, the judge rejected O'Leary's contention that the agreement was unenforceable due to the Statute of Frauds.
First, the judge's findings with respect to the existence of a verbal agreement are fully supported by the record. For example, at trial, Nancy Aldrich, the vice president of Associated, testified that she had "several" telephone conversations with O'Leary during which he "assured" Aldrich that he would be responsible for paying his mother's bill. Second, the judge was correct in ruling, as a matter of law, that the 2007 letter, and corresponding evidence of good faith reliance, were sufficient to remove this agreement from the Statute of Frauds. As noted above, a memorandum or writing, such as the 2007 letter signed by O'Leary, satisfies the Statute of Frauds if it contains the essential terms of the contract, the parties, and is signed by the party to be charged. See A.B.C. Auto Parts, Inc. v. Moran, supra. Moreover, "[s]uch an agreement 'may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.'" Hurtubise v. McPherson, 80 Mass. App. Ct. 186, 188-189 (2011), quoting from Hickey v. Green, 14 Mass. App. Ct. 671, 673 (1982). Based on the foregoing, we agree with the judge, who engaged in a thoughtful and well-reasoned analysis, that the 2007 letter and the evidence of good faith reliance were sufficient to bring the agreement outside the Statute of Frauds.
Judgment affirmed.
By the Court (Berry, Kafker & Cohen, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 29, 2015.