Summary
allowing question of employment status to go to the jury
Summary of this case from Patel v. 7-Eleven, Inc.Opinion
14-P-1945
01-21-2016
DENNIS CRAIG v. STERLING LION, LLC, & another.
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
Defendants Sterling Lion, LLC, and its principal, David Massad, doing business as Isoldmyhouse.com (ISMH), appeal from a judgment, entered on a jury verdict, that awarded the plaintiff Dennis Craig approximately $424,000 on his claim for unpaid wages under the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150. The primary defense advanced at trial was that Craig was an independent contractor or partner, rather than an employee of ISMH, and therefore was not entitled to unpaid wages. The jury disagreed. In response to special questions, the jury found that Craig was an employee and that he was entitled to receive $141,230 in unpaid wages. Pursuant to the Wage Act, the judge trebled the damages and awarded attorney's fees to Craig. The issues on appeal are narrow. The defendants argue that: (1) the trial court lacked subject matter jurisdiction over Craig's Wage Act claim, and (2) the trial judge erred by refusing to instruct the jury on joint venture. We affirm.
The defendants' notice of appeal limited itself to the judgment and thus the denials of their postjudgment motions are not before us. Moreover, because the defendants' arguments on appeal turn solely on Craig's Wage Act claim, we do not address other claims or counterclaims disposed of by the judgment.
Background. The jury could have found the following facts. Massad owns ISMH, a subsidiary of Sterling Lion, LLC. In 2007, Craig entered an agreement with Massad to serve as ISMH's president. Pursuant to their agreement, Craig was to receive twenty percent of ISMH's profits or $150,000 per year, whichever was greater. In September, 2011, Craig resigned from ISMH. In December of 2011 he brought suit against the defendants claiming, among other things, unpaid wages in violation of G. L. c. 149, § 148, pursuant to G. L. c. 149, § 150. The defendants alleged various counterclaims including breach of a joint venture agreement.
Discussion. 1. Subject matter jurisdiction. The defendants argue that Craig's failure to comply with the administrative filing requirement of G. L. c. 149, § 150, deprived the trial court of subject matter jurisdiction. "An employee claiming to be aggrieved by a violation of section[] . . . 148 . . . may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, . . . institute and prosecute in his own name and on his own behalf, . . . a civil action . . . for any lost wages and other benefits." G. L. c. 149, § 150, as amended by St. 2008, c. 80, § 5. The filing requirement "is intended simply to ensure that the Attorney General receives notice of the alleged violations, so that she may investigate and prosecute such violations at her discretion." Depianti v. Jan-Pro Franchising Intl., Inc., 465 Mass. 607, 612 (2013). Failure to comply with the filing requirement before initiating a suit does not deprive a court of jurisdiction, at least where the Attorney General is notified of the suit during its pendency. Id. at 614. Thus, the defense is waived unless raised at trial. See R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73 (2001).
Here, the defendants did not dispute Craig's compliance with the filing requirement at trial. In fact, despite their argument to the contrary on appeal, the record is clear that they stipulated at trial that Craig had obtained the right-to-sue letter from the Attorney General. During a sidebar conference, Craig's attorney began to discuss the mechanics of admitting the Attorney General complaint and right-to-sue letter in evidence. The trial judge inquired, "Well, there's -- I'm sure it must be stipulated that . . . you wrote the letter to the AG." In response, defendants' trial counsel answered, "Right, I'm not raising that defense." Based on that representation, the trial judge ruled the complaint and letter inadmissible and the trial proceeded without further mention of the issue.
Curiously, the defendants now claim that there was no stipulation and that Craig's failure to introduce the authorization letter deprived the court of jurisdiction. The argument is unavailing as a matter of fact and law. Defense counsel's response constituted a stipulation. It is axiomatic that parties may stipulate to undisputed facts, Weber v. Coast to Coast Med., Inc., 83 Mass. App. Ct. 478, 480 (2013), and such stipulations made on the record need not be entered in evidence as an exhibit. See Sierra Mtg., Inc. v. New England Wholesale Co., 14 Mass. App. Ct. 976, 978 (1982). The right-to-sue letter was properly obtained, the parties stipulated to that fact, and the judge acknowledged as much on the record. The defendants' jurisdictional argument fails.
2. Jury instruction. The defendants' secondary argument is that it was error not to instruct the jury on the concept of joint venture. "We review objections to jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party." Dos Santos v. Coleta, 465 Mass. 148, 153-154 (2013), quoting from Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 611 (2000). We discern no error with the jury instructions in this case.
The defendants requested a joint venture instruction which concluded that if the jury found the existence of a joint venture in a business enterprise between Craig and the defendants, then Craig was not an employee entitled to wages. The trial judge carefully considered the request at trial and again in denying the defendants' motion for a new trial, where he explained his ruling as follows:
"According to defendants, had the jury been instructed on joint venture, it could have found that Mr. Craig was a partner or joint venturer, not an employee. This theory was discussed, at length, during the trial. Ultimately, I chose not to give the instruction. The reason for that choice was that the evidence did not support the theory and, indeed, showed incontrovertibly that there was not a joint venture. Mr. Massad testified directly that Mr. Craig was not a partner or a joint venturer. The CFO of ISMH, Mr. Massad's son-in-law, testified that the words 'partner' or 'joint venture' were never used and that he did not treat Mr. Craig as a joint venturer. There was no evidence to the contrary with respect to any agreement of partnership or joint venture. Defendants' argument is based solely on alleged terms of the arrangement for compensation of Mr. Craig, whereby in lieu of salary he would receive [twenty percent] of the profits. Mr. Massad was clear, however, that he was the owner of ISMH, he made all of the decisions, and Mr. Craig had no responsibility to cover any losses of ISMH. There was no joint venture."
Having reviewed the record, we discern no error in the trial judge's thoughtful assessment of the evidence. It did not support a joint venture instruction.
3. Conclusion. The judgment is affirmed. Additionally, Craig has requested reasonable attorney's fees and costs. Having prevailed on appeal, he is entitled to recover the fees and costs of the appeal. See Yorke Mgmt. v. Castro, 406 Mass. 17, 19 (1989); Fernandes v. Attleboro Hous. Authy., 470 Mass. 117, 132 (2014). The plaintiff is directed to submit an application for fees and costs, with supporting documentation, within fourteen days of the date of this decision. Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendants will be afforded fourteen days to respond. Ibid.
So ordered.
By the Court (Vuono, Grainger & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 21, 2016.