Opinion
10-P-1694
09-20-2011
TANA M. PERRY v. MICHELLE M. CARTOCCI.
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
Tana M. Perry brought an action against Michelle M. Cartocci, alleging interference with contractual relations and violation of G. L. c. 93A, after Cartocci purchased the Massage Institute of Cape Cod, a school which Perry had previously contracted to purchase. A Superior Court judge granted Cartocci's motion for summary judgement on both claims, finding that Perry had failed to allege sufficient facts to show that Cartocci had used improper means or maintained an improper motive in acquiring the school. We affirm.
Interference with contractual relations. 'The standard of review of a grant of summary judgment is 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). To establish a claim of intentional interference with contractual relations, a party must prove: (1) the existence of 'a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant's interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812-817 (1990).' G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991).
We agree with the Superior Court judge's finding that Perry has alleged facts sufficient to establish that a contract existed at the time of the alleged interference between Perry and a third party, Albert Potts, owner of the school. However, notwithstanding the existence of the contract, Perry has failed to show that Cartocci, through improper means or with an improper motive, knowingly induced Potts to breach the contract. See G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. at 273 (1991). Cartocci's motivation legitimately to advance her own economic interest was not improper. See Hunneman Real Estate Corp. v. Norwood Realty, Inc., 54 Mass. App. Ct. 416, 428- 429 (2002); Pembroke Country Club, Inc. v. Regency Sav. Bank, 62 Mass. App. Ct. 34, 39 (2004). Further, Perry has failed to allege, and the record contains no evidence, that Cartocci intended to harm Perry.
As the Superior Court judge noted, and contrary to Perry's contentions, Cartocci's actions in the present case are not analogous to the improper means exerted in Melo-Tone Vending, Inc. v. Sherry, Inc., 39 Mass. App. Ct. 315, 317- 318 (1995) (Melo-Tone). The defendant in Melo-Tone induced the third party to breach a contract that had been performed for three years, by unlawfully removing the plaintiff's vending machines from the third party's premises, and agreeing to pay the legal costs of the resulting breach of contract action. Ibid. Perry argues that this case falls within the scope of the Melo-Tone holding because Cartocci's advanced payment to Potts, of $3,000 of the $15,000 purchasing price, was intended to cover Potts's legal fees in any subsequent suit brought by Perry. This argument was not raised in the trial court, and is therefore waived on appeal. See Green v. Brookline, 53 Mass. App. Ct. 120, 128 (2001). See also Boston Hous. Authy. v. Bruno, 58 Mass. App. Ct. 486, 490- 491 (2003). Even were we to consider the argument, it is founded on mere speculation, as the record contains no support for it.
Specifically, the record shows that Cartocci merely accepted an offer from Potts to purchase the school, after the relationship between Potts and Perry had diminished. Simply paying the purchase price of the school was not improper. See Pembroke Country Club, Inc. v. Regency Sav, Bank, 62 Mass. App. Ct. at 39. There has been no showing that Cartocci took any type of action to encourage Potts to breach the contract or that she obstructed Potts's ability to honor the contract, other than being available and willing as an alternative purchaser. Further, Perry has failed to show that Cartocci exerted any type of pressure or coercion over Potts. See Restatement (Second) of Torts § 767 comment c (1979).
Violation of G. L. c. 93A. Because Perry's G. L. c. 93A claim is wholly derivative of her intentional interference with contractual relations claim, her G. L. c. 93A claim also fails. See Natick Auto Sales, Inc. v. Department of Procurement and Gen. Servs., 47 Mass. App. Ct. 625, 634 (1999). 'On this record, the evidence being insufficient to establish improper motive or improper means on the part of the defendant, it is likewise insufficient to establish an unfair method of competition or an unfair or deceptive act or practice.' Pembroke Country Club, Inc. v. Regency Sav. Bank, 62 Mass. App. Ct. at 41.
Cross appeal and request for attorney's fees. Cartocci has filed a cross appeal and seeks appellate attorney's fees and costs, on the ground that Perry's appeal is frivolous. Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). Cartocci contends that Perry had no reasonable expectation of reversal because there was no contract in place at the time of the alleged interference, and there has been no showing of any improper action or motive. See Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984). She argues that the contract was breached before the alleged interference, because Potts evicted the plaintiff and told her that 'all deals were off.' However, the express terms of the contract were that Potts was liable to transfer ownership to the plaintiff at the time of his retirement. Since Massachusetts does not recognize the doctrine of anticipatory breach, the contract was not breached until Potts retired and failed to transfer ownership to Perry, which occurred when the school was sold to Cartocci. See Cavanaugh v. Cavanaugh, 33 Mass. App. Ct. 240, 243 (1992).
Although we find them unpersuasive, we do not think that Perry's claims on appeal are frivolous. Certainly, Perry's arguments do not lack merit to the extent that there has been a waste of judicial resources or undue costs imposed on the appellee. See Avery v. Steele, 414 Mass. 450, 456 (1993).
Judgment affirmed.
By the Panel (Rapoza, C.J., Cypher Hanlon, JJ.),