Diamond Universal Corp. v. Frowmica, LLC

Full title: DIAMOND UNIVERSAL CORPORATION v. FROWMICA, LLC, & another.

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jul 3, 2015

14-P-1089 (Mass. App. Ct. Jul. 3, 2015)

Opinion

14-P-1089

07-03-2015

DIAMOND UNIVERSAL CORPORATION v. FROWMICA, LLC, & another.

By the Court (Grainger, Rubin & Blake, JJ.), Clerk

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

This appeal by Diamond Universal Corporation (Diamond) challenges a Superior Court judgment for defendant Frowmica, LLC (Frowmica), after a jury trial on Diamond's action for repayment of a loan. The material facts are undisputed; at issue is the legal characterization properly applied to a transfer of funds from Diamond to Frowmica.

Diamond, the beneficiary of the Frowmica nominee trust, transferred $70,000 to Frowmica, which is owned by trustees of that trust. Frowmica, in turn, owns and operates Brookline Red Cab LLC. Diamond claims that the transaction was a loan with an established repayment schedule of six monthly installments of $14,000; Frowmica asserts that the payment was a capital contribution. The terms of the transaction were entirely undocumented.

On appeal, Diamond asserts error in the judge's refusal to provide an instruction or a special verdict slip allowing the jury to find that "money was provided under circumstances in which it should be repaid." We affirm the judgment.

The two-count complaint states as follows at the outset: "Plaintiff brings this action to recover a loan that it made to the defendants." Count I, entitled "Breach of Contract," incorporates the factual recitations of the complaint and states, "The defendants have breached their contractual obligation to pay the $84,000 and the plaintiff has been damaged thereby."

Diamond, however, relies on count II which reads, in its entirety:

"Count II -- Money Had and Received

"11. Plaintiff repeats and realleges the obligations contained in paragraphs 1-8.

"12. Defendants are obligated to repay the $84,000 to the plaintiff."

We agree with the judge that this language, alone, does not support an instruction or special verdict slip permitting the jury to find for the plaintiff on a theory other than a contract to loan monies. There are eight numbered paragraphs of factual allegations in the complaint. The first six of these identify the parties and recite the transfer of funds to the defendants. Paragraphs seven and eight state,

"7. The parties agreed that the loan was to be repaid within 6 months in six equal monthly installments of $14,000.

"8. The plaintiff has made repeated demands for the amount it is due but the defendants have failed and refused to pay and are in breach of their obligation to repay the foregoing loan."

These pleadings do not put the defendant or the court on notice that Diamond is alleging an alternative theory of relief, based on quantum meruit or moneys had and received. Pleadings, while not evidence, "bind the party making them." G. L. c. 231, § 87. See Silverman v. Steinberg, 324 Mass. 379, 381 n.1 (1949).

The case was tried on the assertion of an agreement between the parties, and the jury were asked by the parties only to determine the nature of that agreement. Diamond's own proposed question for the jury asked, "Did the plaintiff[] and defendants reach agreement on the terms under which the money would be provided?" The plaintiff cannot now claim that the judge's more focused instruction -- "Was there an agreement between [the parties] whereby Diamond made a loan . . . ?" -- was error. We review the jury instructions "as a whole and in the context of the evidence." Kiely v. Teradyne, Inc., 85 Mass. App. Ct. 431, 441 (2014). The trial judge has well-recognized, wide discretion in selecting the language of jury instructions. Ibid. There was no error.

Judgment affirmed.

Order denying motion for new trial affirmed.

By the Court (Grainger, Rubin & Blake, JJ.²),

2 The panelists are listed in order of seniority. --------

Clerk Entered: July 3, 2015.