Opinion
11-P-855
03-16-2012
DEVENISH & ASSOCIATES, INC. v. THERMO FISHER SCIENTIFIC, INC.
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
The plaintiff, Devenish & Associates, Inc. (Devenish), appeals from the allowance of a motion for summary judgment by a judge of the Superior Court dismissing its complaint against Thermo Fisher Scientific, Inc. (Thermo). We review the grant of a motion for summary judgment de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). We determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
Devenish, a former distributor representing Thermo in a specified geographic territory, claimed commissions pursuant to a sales representative agreement. The complaint alleged breach of contract, fraud, and violation of G. L. c. 93A, § 11. Devenish complains that the motion judge abused his discretion in striking responses it made to Thermo's statement of undisputed facts, and seeks a de novo ruling on appeal denying Thermo's motion for summary judgment.
Devenish's amended complaint contained an additional five counts under Alabama law. It has abandoned those counts in the face of an unambiguous Massachusetts choice of law provision in the agreement.
Allowance of motion to strike. The record before us includes Devenish's responses to Thermo's proposed statement of undisputed facts submitted pursuant to rule 9A(b)(5) of the Rules of the Superior Court in support of its motion for summary judgment. The responses are in many cases prolix, argumentative and marginally relevant to the fact proposed. Thermo asserted, and we agree, that the responses do not address the proposed facts and do not support the existence of material issues in dispute. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 46 n.18 (2005), quoting from Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399 (2002) ('[Rule 9A] 'is an 'anti-ferreting' rule designed to assist a trial judge in the all too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge,' who must then determine whether the record contains any material facts in dispute '). The judge did not abuse his discretion in determining that Devenish's responses were deficient under Rule 9A(b)(5)(ii).
Contract. The agreement provided for cancellation by either party for any reason with sixty days notice. It also provided that Thermo would 'have no liability for commissions with respect to orders received by [Thermo] after the effective termination period of this Agreement.'
It is undisputed that Devenish received notice of termination from Thermo on November 11, 2006. The sixty day period required for advance notice therefore expired no later than January 10, 2007. Devenish claims that as a result of its efforts on behalf of Thermo, three potential customers adopted specifications requiring the use of Thermo products, and that this occurred in the period June-September, 2006, before cancellation. However, as no orders were received from these customers until after January 10, 2007, the undisputed facts support the allowance of summary judgment in favor of Thermo on Devenish's contract claims.
Fraud. Devenish alleges that Thermo colluded 'directly or indirectly' with one of the customers referenced above to delay the submission of orders which otherwise would have been received by Thermo before the effective date of termination of the agreement. No evidence is proffered to support the claim which, on this record, is no more than speculation. A party opposing summary judgment 'cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.' LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
Devenish was apparently aware of the deficiencies in its pleadings. At the summary judgment hearing, Devenish's counsel began by telling the judge, in reference to the amended complaint, that 'some of the things in there may or may not be provable.' In its opposition to Thermo's motion for summary judgment, Devenish stated that it would 'amend [the amended] Complaint to conform to the evidence.'
General Laws c. 93A. The plaintiff's G. L. c. 93A claim rests entirely on the allegations comprising its fraud and contract claims. Accordingly, it too must fail. Macoviak v. Chase Home Mort. Corp., 40 Mass. App. Ct. 755, 760 (1996) (93A claim could not be maintained when solely based on underlying claim of fraud which was insufficient as a matter of law).
Procedural claims. In addition to the claims discussed above, Devenish asserts for the first time on appeal that Thermo's pleadings and affidavits suffered from procedural defects relating to authentication of documents and improper wording of certification by counsel. These arguments, which in any event appear unpersuasive, were not raised below and are waived. See R.W. Granger & Sons, Inc. v J & S Insulation, Inc., 435 Mass. 66, 73 (2001).
Judgment affirmed .
By the Court (Graham, Grainger & Hanlon, JJ.),