Opinion
11-P-445
12-07-2011
HARLEY KAPLAN v. ROBERT CONNELLA.
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
Harley Kaplan appeals the entry of summary judgment in favor of Robert Connella on the complaint's sole claim of breach of contract. Connella admits that he was obligated under a loan guaranty to Kaplan, but contends that a pledge to transfer his shares in a corporation, YSUSA, essentially served as an accord and satisfaction, which Kaplan denies. We reverse because there are disputed issues of material fact that preclude summary judgment on the limited record developed by the parties.
The grant of summary judgment is only appropriate when 'there is no genuine issue of material fact, and when, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.' Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000). A court may not make determinations of the credibility or the weight of conflicting evidence on summary judgment. See Noble v. Goodyear Tire & Rubber Co., 34 Mass. App. Ct. 397, 403 (1993).
The pledge to transfer is signed by Connella and not by Kaplan. By its own terms, the pledge contemplates that Connella will transfer all of his shares in YSUSA to Kaplan, and '[i]n consideration for said transfer the Guarantee . . . in favor of Harley L. Kaplan will be deemed satisfied.' In order for the pledge to satisfy Connella's obligations under the loan guaranty, Connella must demonstrate at least two additional facts: that Kaplan agreed that the transfer would satisfy Connella's debt and that Connella actually transferred the shares to Kaplan. See Kattar v. Demoulas, 433 Mass. 1, 8 n.6 (2000) (noting that accord and satisfaction requires agreement by parties and substituted performance in order to extinguish rights under prior contract).
We note that Connella's affidavit did not attest to the authenticity of the pledge to transfer. However, Kaplan did not object to its consideration by the motion judge. See Sullivan v. Worcester, 18 Mass. App. Ct. 360, 362 n.3 (1984), and cases cited.
To establish Kaplan's agreement and the transfer of shares, Connella relies on the pledge to transfer itself, an interrogatory response in a different case, and the statement in his affidavit that, after Kaplan inquired about acquiring Connella's shares in YSUSA, Connella received the pledge to transfer from Beta Industries, Inc. (Beta), a corporation of which Kaplan is an officer and director. We cannot determine, based on the evidence submitted by Connella, that Kaplan and Beta should be viewed as alter egos, see My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 620-621 (1968), or that Beta agreed to the terms of the pledge to transfer on behalf of Kaplan, see Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 742-746 (2000) (words or conduct of principal are required to establish agent's actual or apparent authority). Moreover, Kaplan by affidavit explicitly denies that anyone at Beta sent the pledge to transfer to Connella on his (Kaplan's) behalf, that he sent the document to Connella, or that he offered to acquire Connella's shares in YSUSA in 2003.
Connella argues that Kaplan's affidavit is conclusory and self-serving, and therefore fails to meet his burden of raising an issue of material fact. However, the cases he cites do not support his position. In Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 647-648 (2002), the nonmoving party submitted an affidavit that contradicted its own deposition testimony. In contrast, here, Kaplan's affidavit specifically contradicts the factual allegations made by Connella in material respects and is not inconsistent with any prior testimony by Kaplan. In Christian v. Edelin, 65 Mass. App. Ct. 776, 780 (2006), the plaintiff presented no evidence other than a conclusory assertion of the defendant's knowledge, with no factual foundation. Kaplan, however, attested to his own words and actions (or lack thereof), as to which he is competent to testify.
Connella also does not indicate in his affidavit that he transferred his shares in YSUSA to Kaplan; rather, he relies on the interrogatory response, which Kaplan signed as chair of the board of YSUSA, that stated in part, 'Harley Kaplan personally took back shares previously issued to Connella.' While this statement may well be evidence of a transfer of shares, an interrogatory answer (unlike a response to a request for admissions) generally is not binding on the answering party. See Tighe v. Skillings, 297 Mass. 504, 507 (1937); Federico v. Ford Motor Co., 67 Mass. App. Ct. 454, 461 n.8 (2006), citing Liacos, Brodin & Avery, Massachusetts Evidence § 2.3.1 at 10 (7th ed. 1999). Connella's contention that judicial estoppel precludes Kaplan from denying the transfer took place is unavailing. Judicial estoppel 'precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.' Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 640 (2005), quoting from Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184 (1998). Kaplan was not a party in the other case, and so would not be judicially estopped unless shown to be Beta's alter ego. Furthermore, judicial estoppel requires that 'the party [to be estopped] must have succeeded in convincing the court to accept its prior position.' Id. at 641. So far as appears from the record and the representations of the parties, the other case did not proceed to judgment due to the bankruptcy of YSUSA and, hence, the interrogatory answer did not induce any particular ruling in that court. Thus, on the state of the summary judgment record, Kaplan is able to contradict the statement in the interrogatory answer, which he has done by denying in his affidavit that the transfer contemplated in the pledge to transfer occurred and by supplying copies of YSUSA's stock ledgers, which do not appear to reflect such a transfer. Whether the transfer took place is a disputed issue of material fact that must be resolved at trial.
We note that depositions have not been taken of either Kaplan or Connella, so obvious inconsistencies in their affidavits have not been probed, thereby rendering summary judgment particularly unsuitable.
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Because contested issues of material fact cannot be resolved on the present record, we reverse the judgment and remand to the Superior Court for further proceedings.
So ordered.
By the Court (Kafker, Cohen & Katzmann, JJ.),