Opinion
11-P-861
03-05-2012
FAIR TRADE FISH COMPANY, INC., & another [FN1] v. ERIK E. MORAD, administrator, [FN2] & another. [FN3]
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 plaintiffs, Fair Trade Fish Company, Inc. (Fair Trade), and its principal, Lars Vinjerud, II, brought this action seeking to recover money lent to Emile E. Morad, Sr. (Emile). The defendant, Erik E. Morad, Emile's son and the administrator of his estate (administrator), appeals from a summary judgment entered in favor of Fair Trade. We affirm.
The motion judge dismissed, without prejudice, Fair Trade's claims against the defendant Patricia Morad, who was never served. The judge also dismissed all of Vinjerud's claims.
The following facts were not disputed. On or about August 26, 2004, Vinjerud, a very close, long-term personal friend and client of Emile, made a loan to him of $35,000. The loan agreement was not reduced to writing. Drawn on Fair Trade's corporate account, a check in that amount was signed by Vinjerud and made payable to Patricia Morad (Patricia), Emile's second wife. At the time, Emile, an attorney facing substantial judgments against him, was embroiled in personal bankruptcy proceedings. Patricia subsequently applied the funds toward the purchase of the marital home in Westport. On October 26, 2008, Emile passed away. The loan remains unsatisfied.
Patricia purchased the house at auction in her own name, financing it through a mortgage and a number of loans arranged by Emile through his personal contacts. Married in June, 1999, the couple jointly filed for divorce in 2007.
During the divorce proceedings, which were still pending at the time of Emile's death, Patricia, through an arrangement made with Emile, sold the marital home to Emile's daughter, Karen Davis.
Summary judgment shall be rendered forthwith where there are no genuine issues of material fact and the record entitles the moving party to judgment as matter of law. See Brown v. F.L. Roberts & Co., 452 Mass. 674, 678 (2008).
Here, the judge properly construed the complaint as a common count for money lent, an action permitted by our modern procedural rules. See Smith & Zobel, Rules Practice § 8.3 (2d ed. 2006). To establish a prima facie case, Fair Trade was required to show that it lent money to Emile at his request, and that Emile either expressly promised to repay the money or, in the alternative, that Emile received a benefit from the loan. See Bishop, Prima Facie Case § 3.4 (5th ed. 2005); Nelson v. Pedersen, 361 Mass. 392, 394 (1972). The absence of a promissory note was not a bar to recovery under this count. See National Shawmut Bank of Boston v. Citizens Natl. Bank of Boston, 287 Mass. 329, 332 (1934).
The administrator mischaracterized the claim as one for money had and received, a different common law count. See Rubin v. Murray, 79 Mass. App. Ct. 64, 81 n.17 (2011). See also Massachusetts Court Rules, Appendix of Forms to Mass.R.Civ.P., Form 8 (LexisNexis 2011-2012).
The administrator's argument that Emile received no benefit from the loan proceeds is unpersuasive. Although Emile did not acquire a legal interest in the marital home in connection with Patricia's purchase, he received the benefit of continued residence in the home with his wife, due, in part, to Fair Trade's funds. The administrator's factual assertion regarding Emile's lack of equitable interest in the home was contradicted by Emile's 2007 financial statement.
In this case, Fair Trade supported its motion as provided in the rule, offering the affidavits of Vinjerud and Patricia regarding the loan as well as a copy of the canceled check.
The judge concluded that G. L. c. 233, § 65, the dead man's statute, was inapplicable where Emile's statements were offered for their independent legal significance and thus admissible under the operative words doctrine. See Commonwealth v. Purdy, 459 Mass. 442, 452-453 (2011); Shimer v. Foley, Hoag & Eliot LLP, 59 Mass. App. Ct. 302, 305-311 & n.13 (2003). To the extent that the administrator claims error, there is no need, for present purposes, to resolve the applicability of the statute in this context. Even assuming that Emile's request for a loan and promises to repay, as attested to by Vinjerud in his affidavit, were inadmissible hearsay, the circumstances surrounding the loan were established by Patricia's affidavit, independent of any alleged statements by Emile. Thus, there was no abuse of discretion in failing to hold an evidentiary hearing on the issue of whether Emile made the statements in good faith.
Where, as here, Fair Trade made the requisite showing under Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002), the administrator was required by Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974), to set forth specific facts showing a genuine issue for trial. In this case, the judge properly disregarded the portions of the administrator's affidavit that were not made on his personal knowledge and those that were based on inadmissible facts. See Madsen v. Erwin, 395 Mass. 715, 719 (1985). The administrator's averments that he understood that his sister, Karen Davis (who ended up with the marital home), was responsible for the loan obligation, and that he believed that his father, Emile, was not the borrower, and that Vinjerud was aware of this fact, fell into this category. See Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 696 (1993) ('An affidavit must set forth specific facts showing that there is a genuine issue for trial; bare assertions and conclusions regarding a [party's] understandings, beliefs, and assumptions are not enough to withstand a well-pleaded motion for summary judgment').
Moreover, as the judge noted, the administrator's defense that the loan was made solely to Patricia (and that Emile was a guarantor rather than the primary obligor) was based on speculation. See Whirty v. Lynch, 27 Mass. App. Ct. 498, 499-500 (1989) (assertions based on hearsay or supposition inadequate to place facts into legitimate dispute). We also agree with the judge that Emile's failure to list the debt on his financial statement did not raise a genuine issue of fact. See Brooks v. Peabody & Arnold, LLP, 71 Mass. App. Ct. 46, 50, 56 (2008).
In sum, the administrator failed to show any genuine issue of material fact for trial. Nothing in the administrator's additional statement of undisputed facts altered our conclusion. Summary judgment was properly entered in favor of Fair Trade.
To the extent that the administrator suggests error in the failure to grant a continuance under Mass.R.Civ.P. 56(f), 365 Mass. 825 (1974), we note that not only did the administrator fail to file a motion seeking a continuance under that rule supported by the requisite affidavit with the requisite contents, he actually sought, in passing, summary judgment in his favor. Thus, even assuming rule 56(f) was informally brought to the attention of the judge, there was no abuse of discretion in failing to continue the matter. See First Natl. Bank of Boston v. Slade, 379 Mass. 243, 244-245 (1979); Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 458-459 (1997).
Judgment affirmed.
By the Court (Berry, Kafker & Mills, JJ.),