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Leo v. Smith

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 4, 2012
11-P-1028 (Mass. Apr. 4, 2012)

Opinion

11-P-1028

04-04-2012

RICHARD LEO v. JOSEPH SMITH & another.


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

Defendants Joseph Smith and Kathleen Smith (collectively, Smiths) appeal from a judgment entered following a jury trial ordering them to pay the plaintiff, Richard Leo, $34,081.66 in damages for breach of contract and misrepresentation. The Smiths contend the Superior Court judge erred by denying their motion for a directed verdict at the close of all the evidence. We affirm.

Review of a motion for directed verdict 'require[s] us to construe the evidence in the light most favorable to the nonmoving party and disregard that favorable to the moving party.' O'Brien v. Pearson, 449 Mass. 377, 383 (2007). We evaluate whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant].' Ibid., quoting from Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992). Following these standards, we set forth the pertinent facts in a light most favorable to Leo.

The jury could have found that on April 5, 2008, Leo and Joseph executed a written agreement entitled 'offer to purchase real estate,' which provided that Leo would 'purchase' from Joseph a 'Right of Way 20' x 180" for a total price of $15,000. Leo's plan, as testified to by both parties, was to subdivide his property into two lots, using the strip from Joseph to access the second lot from the rear of his property. Leo gave Joseph a $6,000 deposit which, the jury could have found, was intended to be used to release a tax lien on Joseph's property in order to facilitate necessary town permits. In further reliance on their agreement, Leo engaged a contractor to clear the strip of trees and trash, with participation from Joseph, who indicated which trees he wanted removed or saved, and who sought additional clean-up from Leo. Leo, relying in part on advice from Joseph, expended approximately $29,000 toward developing the property, including surveying fees, legal fees, excavation, and personal labor.

We use the first names of the Smiths for the sake of clarity.

Joseph did not use the $6,000 deposit to pay off the tax lien, requiring Leo to postpone some permit hearings. Thereafter, Joseph refused to convey to Leo any interest in the property or to return the $6,000. Leo filed this action seeking damages for misrepresentation and breach of contract. The jury found that a contract existed between Joseph and Leo, and that Joseph breached it. The jury further found that Leo relied to his detriment on Joseph's misrepresentations. The jury awarded Leo $34,081.66 in damages.

The jury found for Leo on Kathleen's counterclaim of intentional and negligent infliction of emotional distress. The Smiths' appellate brief makes no argument regarding that claim and we, therefore, consider it waived.

Discussion. At trial, the Smiths moved for a directed verdict on the contract claim, arguing that there had been no 'meeting of the minds' to form a contract because Joseph intended to convey only an easement over his property and Leo intended to purchase the fee in the strip. As the judge pointed out at sidebar, this argument presupposes that the jury believed that the parties each had different intentions or understandings as to the legal interest to be conveyed. Faced with conflicting evidence from the parties and other witnesses, including testimony that a subdivision plan was created showing the 'right of way' as part of Leo's property, the jury were not required to believe Joseph's testimony. In addition, that an aspect of an agreement is the subject of dispute by the parties as to its meaning does not render the agreement unenforceable unless construction of the terms becomes futile. Hurtubise v. McPherson, 80 Mass. App. Ct. 186, 190 (2011). That is not the case here.

The Smiths essentially argue that use of the term 'right of way' compels a legal conclusion that the parties intended to convey only an easement, and that Leo's testimony concerning conveyance of a fee interest illustrates that there was no meeting of the minds. They contend that the judge erred in admitting parol evidence tending to show that the parties agreed to convey a fee in the strip. In the absence of an objection we need not decide whether the admission of this testimony was error. See Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 379 n.2 (2004). We note that counsel for the Smiths not only raised no objection at trial, but repeatedly sought to draw out such evidence.

The Smiths advance a new theory on appeal, arguing that the judge should have decided as a matter of law that the written offer to purchase executed by the parties was not an enforceable contract. Their motion for a directed verdict, however, did not ask the judge to make that determination. In addition, the case was not tried on the theory that the writing constituted the entire contract and was unenforceable. The Smiths sought and received a jury instruction that a 'contract may be based upon oral or written promises.' Furthermore, they requested an instruction that an '[a]greement can be shown by written or spoken words or by some act or omission to act which is intended to communicate agreement, and which indicates to the other party or parties that it is intended to communicate agreement.' The Smiths asserted no objection to the jury instructions and, accordingly, cannot now claim error. See Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974). Neither the judge nor the jury were asked to determine whether the offer to purchase, alone, constituted an enforceable contract. The Smiths cannot change their theory of the case on appeal.

Judgment affirmed.

By the Court (Cypher, Green & Trainor, JJ.),


Summaries of

Leo v. Smith

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 4, 2012
11-P-1028 (Mass. Apr. 4, 2012)
Case details for

Leo v. Smith

Case Details

Full title:RICHARD LEO v. JOSEPH SMITH & another.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 4, 2012

Citations

11-P-1028 (Mass. Apr. 4, 2012)