Opinion
Nos. 15–P–40 15–P–41.
10-21-2016
Wen Y. CHIANG v. David E. MAJOR (and a companion case).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
These appeals stem from separate, but related actions filed by the same plaintiff, Wen Y. Chiang, in the Superior Court. The plaintiff brought the first action in 2011 (2011 case), asserting claims for breach of contract, intentional interference with contract, and violation of G.L. c. 93A, against David E. Major. In 15–P–40, the plaintiff appeals from the dismissal, on summary judgment, of the 2011 case based on his lack of standing and from so much of the order entered on October 20, 2015, that denies his motion to file corrected transcripts. The plaintiff filed the second action in 2014 (2014 case), again asserting breach of contract, intentional interference with contract, and violation of G.L. c. 93A, against David E. Major, as well as against BHI and Kim Major. In 15–P–41, the plaintiff appeals from the dismissal of his complaint in the 2014 action pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974), and from so much of the order entered on October 20, 2015, that denies his motion to file corrected transcripts. We affirm.
We begin by noting that the plaintiff's papers in both appeals virtually defy appellate review. The briefs do not contain reasoned appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Cameron v. Carelli, 39 Mass.App.Ct. 81, 85–86 (1995). The record appendices lack certain required materials, including the orders and decisions from which the plaintiff is appealing. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). On the other hand, they contain extraneous materials that are not appropriately part of the record of the case. See Mass.R.A.P. 18(b), as amended, 425 Mass. 1602 (1997), and (d), as amended, 370 Mass. 919 (1967); Cameron v. Carelli, supra at 83–84. The fact that the plaintiff is proceeding pro se does not relieve him of his obligation to follow the appellate rules and to present his arguments in a comprehensible manner. See Maza v. Commonwealth, 423 Mass. 1006 (1996).
We note that the plaintiff is an experienced litigant, and that these are not his first appeals.
1. Appeal 15–P–40. The 2011 case concerned a contract between Thomas and Brothers Construction and Trading, Inc. (corporation) and David E. Major, the defendant. The plaintiff was not a party to the contract and the motion judge determined that he had no standing to pursue the corporation's claims, all of which were connected to the contract. We discern no error. As a general rule, a person who is not a party to a contract or an intended third-party beneficiary of a contract lacks standing to challenge or enforce that contract. Harvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 70–71 (1992). Here, there was no contention (let alone demonstration) that the plaintiff was an intended third-party beneficiary of the contract. And, moreover, he was not a party to the contract, although he signed it on behalf of the corporation. “As pointed out in Porshin v. Snider, 349 Mass. 653, 655, quoting from Restatement (Second) of Agency § 320 and comment a (1958), ‘Unless otherwise agreed, a person making or purporting to make a contract for a disclosed principal does not become a party to the contract.’ See Nishimatsu Constr. Co. v. Houston Natl. Bank., 515 F.2d 1200, 1205–1207 (5th Cir.1975), where contentions similar to the ones made here by the plaintiff as to the effect of a default were defeated because the signature of an officer on behalf of a corporation precluded his liability in his individual capacity.” Marshall v. Stratus Pharmaceuticals, Inc., 51 Mass.App.Ct. 667, 673 (2001). In sum, the motion judge did not err in concluding that the plaintiff lacked standing.
As to the plaintiff's appeal of so much of the order entered on October 20, 2015, that denies his motion to file corrected transcripts, his one-paragraph argument on the issue in his reply brief does not rise to the level of appellate argument supported by relevant legal authorities, and fails to show any error or abuse of discretion by the judge in declining to make further corrections to the transcripts prepared by the approved court transcriptionist.
2. Appeal 15–P–41. Although the plaintiff's brief takes issue with a variety of rulings made in the Superior Court proceedings, the only order properly before us on appeal is the dismissal order because that is the sole order identified in the plaintiff's notice of appeal. See Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999) (“The notice of appeal ... shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from”); Siles v. Travenol Labs., Inc., 13 Mass.App.Ct. 354, 354 n. 1 (1982) ; Robinson v. Boston, 71 Mass.App.Ct. 765, 771 (2008). We accordingly turn to the judge's allowance of the defendants' motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and (b)(9), as amended, 450 Mass. 1403 (2008).
We note that the plaintiff incorrectly states in his notice of appeal that the dismissal order is dated October 7, 2014, and that the correct date of the order is October 2, 2014, and it entered on October 3, 2014.
Although not before us, the plaintiff seeks to appeal the order denying his emergency motion to recuse entered on September 25, 2014. In addition to not being identified in his notice of appeal, the plaintiff did not include the motion in the record. See Cameron v.. Carelli, supra at 84; Mass.R.A.P. 18(a). Moreover, the plaintiff's papers do not show any abuse of discretion by the judge in denying the motion. See Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). The mere fact that the judge made an unfavorable ruling does not provide a ground for disqualification. See Clark v.. Clark, 47 Mass.App.Ct. 737, 739 (1999).
“We review the allowance of a motion to dismiss de novo.” Galiastro v. Mortgage Electronic Registration Sys., Inc. 467 Mass. 160, 164 (2014). “An action is subject to a motion to dismiss under Mass.R.Civ.P. 12(b)(6) if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ “ Harvard Community Health Plan, Inc. v. Zack, 33 Mass.App.Ct. 649, 652 (1992), quoting from Feeney v. Boston, 13 Mass.App.Ct. 1004, 1005 (1982).
The plaintiff has shown no error in the judge's dismissal, pursuant to Mass.R.Civ.P. 12(b)(6), of all claims against BHI. Although the record revealed that David E. Major does business as BHI, it was undisputed that BHI is not a corporation and has no legal existence independent of David E. Major.
Similarly, we discern no error in the dismissal, also pursuant to Mass.R.Civ.P. 12(b)(6), of the claims against Kim Major. Neither the allegation that she “is account receivable and payable for BHI,” nor the allegation concerning her testimony in a Maine case, state a cause of action upon which relief can be granted.
Finally, we discern no error in the judge's conclusion that the factual bases for the 2014 case were virtually identical to those made in the 2011 case. The plaintiff's earlier complaints were attached to the defendants' motion to dismiss, and a simple comparison of the allegations reveals a commonality of issues and parties. See Zora Enterprises, Inc. v. Burnett, 61 Mass.App.Ct. 341, 346 (2004). Where, as here, a prior-filed action with identical issues and parties is pending, the later-filed action may be dismissed. See Mass.R.Civ.P. 12(b)(9) ; Harvard Community Health Plan, Inc. v. Zack, supra at 652 (“A dismissal under 12[b][9] may be appropriate if the parties and issues are identical to those in the prior pending action”). The fact that the plaintiff sought additional relief in the 2014 action does not lead to a different conclusion. The plaintiff could (and should) have sought such relief in the earlier action by moving to amend the complaint. See Guindon Ins. Agency, Inc. v. Commercial Union Ins. Co., 15 Mass.App.Ct. 931, 932 (1983).
The 2011 case was still pending when the plaintiff filed the complaint in the 2014 case on May 9, 2014. The motion for summary judgment was not allowed in the 2011 case until August 25, 2014, and judgment entered on August 28, 2014.
As discussed above, the plaintiff has failed to show any error or abuse of discretion by the judge as to the order entered on October 20, 2015.
3. Conclusion. For the reasons set out above, as to the 2011 case and the 2014 case, we affirm the judgments and so much of the orders entered on October 20, 2015, denying the plaintiff's motion to file corrected transcripts. In addition, as to 15–P–40, David E. Major's request for appellate attorney's fees and double costs is allowed; as to 15–P–41, David E. Major and Kim Major's request for appellate attorney's fees and double costs is allowed. Within fourteen days of the date of the rescript, David E. Major and Kim Major shall submit a statement of appellate attorney's fees and costs as to their respective appeals, with appropriate supporting materials, in accordance with the procedure specified in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), and within fourteen days thereafter, the plaintiff may submit an opposition to the amounts requested.