Opinion
21-P-790
05-06-2022
SUNBELT RENTALS, INC. v. ANTHONY CONTRACTING, INC.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant (Anthony) appeals from a summary judgment in favor of the plaintiff (Sunbelt) on Sunbelt's contract claim. At its core, the issue on appeal is whether there was a triable issue of fact with respect to whether Anthony had declined the Rental Protection Plan (RPP) when it leased a Manlift from Sunbelt. We conclude that, taking the summary judgment record in the light most favorable to Anthony, summary judgment should not have entered on the contract claim. We accordingly vacate that portion of the judgment and remand for further proceedings on the contract claim alone.
Anthony argues for the first time on appeal that there is also an issue as to whether South Carolina law applies. We need not consider this argument for two reasons: first, it is waived for not having been raised below, see Gutierrez v. Massachusetts Bay Transp. Auth., 442 Mass. 1041, 1042 (2004); second, Anthony has not argued -- let alone shown -- any difference between South Carolina law and Massachusetts law. See Kaufman v. Richmond, 442 Mass. 1010, 1012 (2004) ("It is a fundamental choice of law principle that only actual conflicts between the laws of different jurisdictions must be resolved").
Summary judgment was entered in favor of Anthony on Sunbelt's claims for negligence, unjust enrichment, and for account stated. Sunbelt has not cross-appealed, and those claims are not before us; the judgment on those claims is accordingly final.
Taken in the light most favorable to Anthony, the materials in the summary judgment record, together with the reasonable inferences to be drawn from them, established the following. Anthony is a painting contractor. In 2004, Anthony applied for credit with Sunbelt, which is in the business of leasing equipment. If a customer does not provide Sunbelt a credit card to guaranty payment, an approved credit application is required for a customer such as Anthony to have an account with Sunbelt. It appears (although the record is not explicit) that Sunbelt approved Anthony's credit application. In any event, it is undisputed that Anthony established an account with Sunbelt.
The back of the credit application contained various terms and conditions, one of which was:
"If you choose NOT to purchase a Loss and Damage Waiver from [Sunbelt], you must provide [Sunbelt] with Proof of Insurance in the form of an All Risk Floater naming [Sunbelt] as the loss payee on any and all equipment rented. Failure to purchase a Loss and Damage Waiver may result in your being held responsible for the full and complete cost of any and all losses and damage to the equipment rented. The terms and conditions of the Loss and Damage Waiver are set forth in the Rental Contract which must be signed at the time of rental."
The credit application nowhere uses the words "Rental Protection Plan," and the record provides no explanation as to whether the RPP is the same as the Loss and Damage Waiver to which the credit application refers. In any event, nothing on the credit application permits an inference (at least at this stage) that Anthony rejected or opted out of the Loss and Damage Waiver or the RPP as a general proposition when it opened an account with Sunbelt in 2004.
According to Sunbelt's designated Rule 30 (b) (6) deponent, Sunbelt requires its salespeople to offer the RPP to its customers. In order to decline the RPP for a particular equipment rental, a customer would have to verbally decline the RPP, and check a box on the rental agreement declining the RPP. If a customer is a credit customer (such as it appears Anthony was), Sunbelt would deliver the rental equipment without advance payment. The customer would then be mailed an invoice, which the customer would then be required to pay on basic terms of thirty days net.
See Mass. R. Civ. P. 30 (b) (6), 365 Mass. 780 (1974).
On July 7, 2017, Anthony leased a "[sixty-foot] STR Manlift w[ith] jib" from Sunbelt for four weeks. The total charge for the four-week rental, including various fees, was $3,025.32. The terms of the rental were contained in a document called "Rental Out," which consisted of a two-page, preprinted form prepared by Sunbelt (Agreement). At the bottom of the second page of the Agreement, at the end of a list of various terms and directly above the customer's signature line, was a freestanding sentence followed by a line for the customer's initials:
"Customer declining Rental Protection Plan (see reverse side for details) (Customer initials)[.]"Sunbelt's designated Rule 30 (b) (6) witness testified at deposition that she would expect this statement to be initialed if a customer were declining the RPP. In this case, the statement was not initialed by Anthony.
On the back of the Agreement were printed additional terms and conditions. Pertinent here were the following two provisions. First, during the rental period the customer was to assume all risk associated with the possession, control, or use of the equipment, regardless of whether the customer was at fault. The customer would be responsible for damages to the equipment, which could be measured by the equipment manufacturer's suggested list price (MSLP) or the full cost of repair. Second, the customer's exposure would be limited by the RPP if (1) the customer paid fifteen percent of the gross rental charges as the fee for the RPP (plus applicable taxes), (2) the customer complied with the terms of the Agreement, (3) the customer's account was current at the time of the loss, theft, damage, or destruction of the equipment, and (4) no enumerated exclusion applied. Only the first requirement of the second provision is at issue in this case.
While the Manlift was in Anthony's possession at a job site, it was destroyed by a fire through no fault of Anthony. As a result, Sunbelt sought to recover the MSLP from Anthony, an amount well in excess of $100,000. Anthony demurred, and paid only the amount identified in the Agreement for the rental of the Manlift. Sunbelt then brought the underlying suit alleging, among other things, that Anthony had breached the Agreement by failing to pay the MSLP for the Manlift together with certain additional costs and fees.
Anthony moved for summary judgment, arguing that it was entitled to judgment on the contract claim because there was no dispute that it did not initial the Agreement where indicated to decline the RPP. Alternatively, Anthony argued that the terms of the Agreement were ambiguous and should be construed in its favor. Sunbelt opposed the motion and argued that Anthony did not need to initial the Agreement to decline the RPP because Anthony's account had been set up from the start to decline the RPP. In the alternative, Sunbelt argued that Anthony had never been charged for, nor paid, the RPP fee as part of the rental. A Superior Court judge entered summary judgment in favor of Sunbelt on the contract claim and, after additional submissions, a second judge awarded Sunbelt $247,893.38.This appeal followed.
"On a party's motion for summary judgment, judgment may pass for [the party's] opponent if the record warrants it, even in the absence of a [cross motion] for that relief." Charlesbank Apartments, Inc. v. Boston Rent Control Admin., 379 Mass. 635, 636 n.2 (1980). See Good v. Commissioner of Correction, 417 Mass. 329, 336 n.7 (1994) ("Where appropriate, summary judgment can be granted against the moving party"); Sister Thattil v. Dominican Sisters of Charity of the Presentation of the Blessed Virgin, Inc., 415 Mass. 381, 385 (1993). See also Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
This amount was the total of: (1) $116,930 as the MSLP for the lost Manlift; (2) $2,500 in costs for retrieving the lost Manlift; (3) prejudgment interest on the principal sum of $119,430 at the rate of 1.5 percent per month from October 23, 2017, to March 10, 2021, for a total of $72,693.20; (4) attorney's fees of $48,030.80, which is equal to twenty-five percent of the sum of (1), (2), and (3); (5) State and Federal taxes of $7,464.38; and (6) court costs amounting to $275.
Discussion.
"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), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "The allowance of a motion for summary judgment is reviewed de novo." Brown v. Kalicki, 90 Mass.App.Ct. 534, 535 n.5 (2016), quoting White v. Hartigan, 464 Mass. 400, 406 (2013). "[A] dispute about a material fact is 'genuine' when 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,' and a fact is 'material' when it 'might affect the outcome of the suit under the governing law.'" Dennis v. Kaskel, 7 9 Mass.App.Ct. 736, 740-741 (2011), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The central issue in this appeal is whether there is a triable issue of fact as to whether Anthony declined the RPP when it rented the Manlift. Read in the light most favorable to Anthony, we believe there is. To begin with, as we have already noted, Anthony did not initial the Agreement where indicated to decline the RPP. Sunbelt's representative testified that she would expect those initials to appear on the Agreement if a customer declined the RPP. Furthermore, although during the period from 2013 to 2017 it appears Anthony often declined the RPP, it did not do so every rental. Thus, there is no uniform practice on the part of Anthony with respect to declining the RPP. In this regard, we note also that Sunbelt's spreadsheet of prior rentals does not encompass the entire period Anthony had been a customer. In addition, Anthony's 2004 credit application (which was the basis for establishing an account with Sunbelt) does not reflect that Anthony declined the RPP as a general matter for its account or for any rental in particular. Moreover, there is no contemporaneous information showing how Anthony's account was set up, let alone that it was set up to decline the RPP for all rentals or that Anthony asked that the account be set up that way.
Not only does the document produced by Sunbelt omit the period 2004-2013, the summary judgment record does not explain how the spreadsheet was produced, or by whom, or how.
An affidavit submitted by Sunbelt explained that a "customer's account is dictated by how the customer wants its account to be set up, and based on this set up, invoices are generated to the customer when they rent equipment from [Sunbelt]." But the affidavit does not explicitly state that Anthony's account was set up in 2004 to decline the RPP, or that Anthony requested that it be set up that way. It is also unclear what basis the affiant would have for knowing what happened in 2004 when Anthony set up its account. It is true that the affidavit contains the phrase "[s]ince [Anthony] rejected the RPP when it set up its account with [Sunbelt] for the Manlift," but this is a conclusion, rather than an averment of admissible fact, and -- moreover -- is inconsistent with Sunbelt's evidence that Anthony's account was set up in 2004 --not at the time the Manlift was rented. In short, although the limited information contained in the summary judgment record with respect to whether Anthony declined the RPP when it set up its account was sufficient to defeat Anthony's motion for summary judgment on the contract claim, it was insufficient to establish that Sunbelt was entitled to judgment as a matter of law.
Sunbelt argues in the alternative that summary judgment was proper because Sunbelt did not charge Anthony the RPP fee, nor did Anthony pay it. It is true that the Agreement does not contain a line item reflecting the fee for the RPP; but it is also true that Sunbelt did not submit evidence that the RPP is customarily identified separately (rather than included in the rental fee). In any event, although the absence of a separate charge may reflect that Sunbelt believed Anthony to have declined the RPP (whether at the time of rental or at the time the account was set up), it is not dispositive of whether Anthony in fact declined the RPP. After all, it was Sunbelt --rather than Anthony -- that prepared the Agreement and the Agreement showed that Anthony had not initialed the provision declining the RPP. It is for the trier of fact to resolve the conflicting inferences to be drawn from, on the one hand, the fact that Anthony did not initial the Agreement to decline the RPP and, on the other hand, the fact that Sunbelt appears not to have charged Anthony the RPP fee amount.
For these reasons, although the judge properly denied Anthony's motion for summary judgment, she erred in allowing summary judgment in favor of Sunbelt. The record raised a disputed issue of material fact as to whether Anthony intended to, and in fact did, decline the RPP in connection with the rental of the Manlift. We accordingly vacate so much of the judgment as entered in favor of Sunbelt on its contract claim, as well as the award of damages on that claim, and the matter is remanded to the Superior Court for further proceedings consistent with this memorandum and order. The judgment is otherwise affirmed.
So ordered.
Meade, Wolohojian & Lemire, JJ.
The panelists are listed in order of seniority.