Opinion
15-P-236
03-01-2016
MICHAEL F. WORTIS v. DEPARTMENT OF CONSERVATION AND RECREATION.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
For a number of years, the plaintiff, Michael F. Wortis, provided golf services, under a license agreement in the form of a permit, at the Leo J. Martin Memorial Golf Course, an eighteen-hole public golf course located in Weston. The golf course is owned by the Commonwealth and is in the care, custody, and control of the defendant, the Department of Conservation and Recreation (DCR). When Wortis's license was terminated in 2012, he attempted to sell certain equipment used at the golf course to DCR. After the sale fell through, Wortis brought this action alleging breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment. DCR counterclaimed for damages related to the cost of removing the equipment from the property. Acting on cross motions for summary judgment, a judge of the Superior Court entered summary judgment in favor of the defendant on all claims and counterclaims. This appeal ensued.
Background. We summarize the undisputed facts taken from the judge's memorandum of decision, supplemented by the parties' joint statement of undisputed material facts.
Wortis, through his company, MFW, Inc., began providing golf services at the golf course in or about 1984. Those golf services included the operation of a pro shop and office, driving range, and golf cart provisions. The driving range, which required the installation of thirty-one poles ranging from fifty to eighty feet in height on which nets were hung to protect patrons of the golf course from errant balls, was built in 1997. While most of Wortis's equipment was removed at the end of each season, as required by the permit, the poles, which were buried deep in the ground, remained in place from the time they were erected until they were removed by DCR in 2013.
The driving range at issue was created sometime before 1997; however, the first reference to the driving range is in the renewed license agreement from 1997.
As noted, DCR terminated Wortis's license in 2012. At that time, Wortis, through his attorneys, acknowledged his responsibility to remove all of his equipment, including the poles and nets, by November 22, 2012. This deadline was extended a number of times by agreement until July 12, 2013. Meanwhile, in December, 2012, DCR issued a request for proposals (an RFP) for golf professional services and an RFP for new equipment for the upcoming 2013 golf season. The deadline for the latter RFP was extended to May 17, 2013, and, on or about May 15, 2013, Wortis submitted a proposal to sell the poles, along with the nets and other equipment, to DCR for $185,939.50. In June, 2013, DCR's Boston region director, Nicholas Gove, responded to Wortis's bid in an electronic mail message (e-mail) and offered to purchase the poles for only $54,457. Wortis declined to sell just the poles at that price and, in a letter dated June 25, 2013, rejected DCR's offer. In a second letter, dated June 27, 2013, Wortis indicated that the proposed purchase price was too low and that, at the very least, the proposed price did not account for the "labor opportunity cost" -- the cost that the DCR would avoid in not having to pay for the installation of new poles. In the letter from June 27, Wortis also claimed that DCR would be unjustly enriched if it paid less than $125,000 for the golf poles. At one point, Gove informed Wortis's attorneys that any agreement for the sale of equipment needed to be completed by June 28, 2013, the close of the Commonwealth's fiscal year. No agreement had been reached by that date, and, as a result, DCR told Wortis to remove the poles, nets, and other equipment that Wortis had installed by July 12, 2013. Wortis did not take action, causing DCR to have the poles removed by Northern Tree Company on or about August 30, 2013.
The record indicates that no new poles have been erected and the driving range has been eliminated. Wortis's poles have remained in storage since the commencement of this action.
In rejecting Wortis's claims and denying his motion for summary judgment, the judge concluded that no binding contract was ever formed. The judge viewed Gove's offer to purchase the poles for $54,457 as a counteroffer that was rejected by Wortis. The judge also ruled that, even if an agreement had been reached, Gove did not have authority to enter into a binding contract on behalf of DCR. The judge also concluded that DCR was not unjustly enriched. Finally, the judge ruled that Wortis's failure to remove the poles and nets justified an award of damages to DCR for the cost of removal. A hearing on damages was held, after which the judge assessed total damages in the amount of $26,190.
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." Nelson v. Salem State College, 446 Mass. 525, 530 (2006), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
1. Breach of contract claim. Wortis claims that a binding contract for the purchase and sale of the poles was formed between the parties when DCR sent a letter to Wortis offering to buy the poles for $54,457 (in response to his proposal to sell the poles and other equipment for $185,939.50). We disagree.
"It is elementary law that an offer must be accepted in the terms in which it is made in order to become a binding contract, and that a conditional acceptance or one that varies from the offer in any substantial respect is in effect a rejection and is the equivalent of a new proposition" (emphasis added). Moss v. Old Colony Trust Co., 246 Mass. 139, 148 (1923). Here, in response to the bid submitted by Wortis, DCR offered to pay only $54,457 for the poles, a price substantially less than the amount Wortis wanted. Moreover, Wortis never accepted DCR's counteroffer. The record unequivocally establishes that Wortis rejected the offer of $54,457 and then demanded $125,000. In sum, the parties were not in agreement such that a binding contract could be formed regarding the sale of the golf poles. See I & R Mechanical, Inc. v. Hazelton Mfg. Co., 62 Mass. App. Ct. 452, 455 (2004) ("The parties must give their mutual assent by having a 'meeting of the minds' on the same proposition on the same terms at the same time").
Wortis claims that DCR should be equitably estopped from arguing that Gove lacked the authority to enter into a binding contract. Because we conclude that there was no contract, we need not address this issue. We note, however, that Wortis has not provided any authority to rebut the general rule that equitable estoppel does not apply to State officials. See McAndrew v. School Comm. of Cambridge, 20 Mass. App. Ct. 356, 361 (1985) ("[T]he rule against applying estoppel to the sovereign continues almost intact where a government official acts, or makes representations, contrary to a statute or regulation designed to prevent favoritism, secure honest bidding, or ensure some other legislative purpose").
Wortis's attempt to characterize his demand for $125,000 as simply a request for modification of the terms of an agreement also fails. We acknowledge that "a request for a modification accompanying an acceptance does not prevent the formation of a contract where it is clear that the offeree intended to accept whether or not the modification was accepted," Costello v. Pet Inc., 17 Mass. App. Ct. 382, 387 (1984), citing Nelson v. Hamlin, 258 Mass. 331, 340 (1927). However, here, Wortis expressly indicated that he did not intend to accept a price of $54,457 for the poles. In fact, in his letter to the DCR, Wortis wrote: "MFW, Inc. rejects your offer." Thus, Wortis's demand for a purchase price of $125,000 cannot be viewed as a request for modification. See Coldwell Banker/Hunneman v. Shostack, 62 Mass. App. Ct. 635, 639-641 (2004).
"MFW[, Inc.] insists upon receipt of its prior $125,000 demand."
2. Breach of covenant of good faith and fair dealing claims. Wortis claims that DCR violated the covenant of good faith and fair dealing because it did not agree to pay at least $54,457 for the poles. "[I]n every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract, which means that in every contract there exists an implied covenant of good faith and fair dealing." Druker v. Roland Wm. Jutras Assocs., Inc., 370 Mass. 383, 385 (1976), quoting from Uproar Co. v. National Bdcst. Co., 81 F.2d 373, 377 (1st Cir.), cert. denied, 298 U.S. 670 (1936).
Here, the parties operated under a contract, i.e., the license agreement. Wortis does not argue, however, that he was denied the benefit of the license agreement. Instead, Wortis relies on the agreement to purchase the poles, which was never a contract. See Levenson v. L.M.I. Realty Corp., 31 Mass. App. Ct. 127, 131 (1991) (where no mutual assent existed between parties, "there was no contract of which the implied covenant could be a part"). There being no contract with respect to the purchase of the golf poles from Wortis, DCR cannot be held liable under a covenant of good faith and fair dealing.
3. Unjust enrichment. Wortis claims that, even if there is no contract between the parties, DCR was unjustly enriched by electing not to pay Wortis a fair value for the poles. "A determination that a party would be unjustly enriched 'require[s], generally, . . . that [the] party [would] hold property under such circumstances that in equity and good conscience he ought not retain it.'" Sutton v. Valois, 66 Mass. App. Ct. 258, 265 (2006), quoting from Stevens v. Nagel, 64 Mass. App. Ct. 136, 141 (2005).
Wortis may not prevail on a claim for unjust enrichment when it is undisputed that Wortis installed the poles for his own benefit. "Compensation on a quasi contract theory is not mandated where the services were rendered simply to gain a business advantage or where the plaintiff did not contemplate a personal fee." Salamon v. Terra, 394 Mass. 857, 861-862 (1985). Here, the installation of the poles provided a business advantage to Wortis; from 1997 to 2012, he operated a driving range on the premises that he concedes required him to install the poles. DCR was entitled to judgment as a matter of law on this claim.
4. DCR's counterclaim. Wortis argues that he was under no obligation to remove the poles at the time his license agreement expired. Such an obligation, he now claims, does not arise from the license agreement. As an initial matter, the record does not demonstrate that Wortis advanced this contention before the Superior Court judge. He is therefore, barred from asserting it for the first time on appeal. Bruno v. Wrentham, 62 Mass. App. Ct. 527, 531-532 (2004). Even if the argument was properly raised, it is unavailing. The plain language of the license agreement imposes such an obligation. The agreement states that "[a]ll of the Operator's equipment and possessions must be removed from the Premises at the end of the Season."
Although, as DCR acknowledges, prior to the 2012 golf season, it was always understood that Wortis would not remove certain materials (e.g., the driving range nets and poles) because it was known that Wortis would be returning to provide golf services the following season, there is no question that Wortis would not be providing golf services after the close of the 2012 season. In fact, on multiple occasions after he was informed that his license would be terminated, Wortis recognized his obligation under the permit to remove all of his equipment, including the poles and nets used to operate the driving range. Furthermore, in a letter dated November 21, 2012, Wortis, through his attorney, asserted that the poles are not permanent fixtures, were valuable to Wortis, and could be removed without damage.
In a letter dated November 1, 2012, MFW acknowledged its obligation to remove its equipment from the golf course. Subsequent letters dated November 15 and November 19, 2012, also acknowledge that MFW was responsible for the removal of the equipment.
The letter stated: "The poles and nets, however, do remain the trade fixtures of MFW as they were paid for and installed by our client and are removable without damage to the DCR premises. They are not permanently affixed and are valuable to our client for further use within the industry. There are no legal impediments to their removal by MFW for future use."
Judgment affirmed.
By the Court (Kafker, C.J., Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 1, 2016.