Ameripride Linen & Apparel Services, Inc. v. Eat Well, Inc.

836 N.E.2d 1116, 65 Mass. App. Ct. 63, 2005 Mass. App. LEXIS 1036
CourtMassachusetts Appeals Court
DecidedNovember 4, 2005
DocketNo. 04-P-1300
StatusPublished
Cited by11 cases

This text of 836 N.E.2d 1116 (Ameripride Linen & Apparel Services, Inc. v. Eat Well, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ameripride Linen & Apparel Services, Inc. v. Eat Well, Inc., 836 N.E.2d 1116, 65 Mass. App. Ct. 63, 2005 Mass. App. LEXIS 1036 (Mass. Ct. App. 2005).

Opinion

Dreben, J.

After a trial in the Superior Court on the plaintiffs claims and the defendants’ counterclaims, a jury found for the plaintiff in quantum memit and for the defendants for breach of contract and violation of G. L. c. 93A, § 11. The jury also [64]*64found the plaintiff’s actions wilful or knowing and, pursuant to a special question asking what multiplier is appropriate, answered “2.” Accordingly, the defendants’ c. 93A damages were doubled.2 Attorney’s fees were awarded to the defendants. The plaintiff appeals on numerous grounds, including that there was no violation of c. 93A, but even if the defendants have proved such a violation, they have not shown that they suffered “a loss of money or property” as required by the statute.3 See Baldassari v. Public Fin. Trust, 369 Mass. 33, 44-45 (1975). The plaintiff points to the defendants’ concession that even after deducting the amounts overpaid by the defendants and overcharged by the plaintiff, the defendants owe the plaintiff money. We affirm.

1. Facts. The jury were warranted in finding the following facts. The plaintiff is engaged in the business of renting linens to restaurants and other institutions. In late 1995, its then sales representative, Douglas Ross,4 in an effort to obtain the account of the defendants, which operated restaurants and a bakery south of Boston, approached Gregory Acerra, an owner and manager of the defendants. The defendants were at that time renting table linens and chefs’ uniforms from another company, with which they were “generally satisfied.” A paramount concern of Acerra was that there be no minimum or flat fees. He was only willing to pay for linens actually used; if this arrangement was not possible, he was not interested. Both Ross and Acerra testified to this effect, Ross adding that his superior, Eugene Berthiaume, agreed, saying, “That’s fine. Get the account.”

[65]*65Three documents on a printed form contract used by the plaintiff for its rentals were signed by Acerra and admitted in evidence.5 Two were signed by Ross; the signature on behalf of the plaintiff on the third is not clear, and the document may have been signed by Berthiaume, the plaintiff’s sales manager. The reverse side of each form contained a number of provisions, including one which provided that the term of the contract was forty-eight months. It also included the following:

“8. INVENTORY CHARGE: It is agreed that, at the Company’s option, a minimum weekly stock availability charge may be made based upon the Customer’s total stock of each article. The Customer’s total stock shall be defined to be that shown on the Company’s records pertaining to the Customer as of the last day of the immediately preceding week. If charges based upon actual use exceed the minimum availability charge, actual charges only shall be payable.”

The front of the forms had a column headed “flat rate or minimum charge.”

When signed by Acerra, the columns were blank and had no figure as to a minimum charge. Berthiaume, or Ross, however, after the signed forms were received, inserted figures in this column (they appear on two of the three documents). The documents were placed in the plaintiff’s files and copies were never sent to the defendants. According to the plaintiff’s general manager, the minimum charge, although usually a standard flat rate of forty-five per cent for such items as uniforms, was a negotiable figure and the rate could be negotiated to “thirty or something like that.” Acerra checked the first invoices, which did not contain a minimum, but did not check later invoices.

Sometime in the spring of 1996, Acerra asked Ross if the plaintiff would be interested in providing linens for three restaurants that would be open only in the summer. Since they were seasonal, Acerra did not want to sign a contract and be bound for four years. A few days later, Ross called back and [66]*66said there was no need for a contract. The plaintiff provided linens for the three seasonal restaurants and submitted invoices for payment.

In July, 1996, Acerra was informed by his partner that there was a “big problem” with the linen bills. Acerra then discovered that the defendants were being charged minimum fees. He noticed, for example, that one of the invoices showed that the defendants were billed for 119 chef coats, but only thirty-six had been delivered; another showed they were charged for 116 chef coats, while only forty had been delivered; they were charged for ninety pairs of pants, but none had been delivered.6

Acerra immediately called Ross, who agreed that these charges should not have been made. He said he would get back to Acerra, but he never did.7 Acerra called Berthiaume, stating, “you guys have ripped me off.” The two men met twice to go over invoices, and Acerra said he would not make any payments until the matter was resolved. Because they had not finished going through the invoices, they scheduled a third meeting, but Berthiaume canceled. He never contacted Acerra as promised and left the matter unresolved.

In November, 1996, after not receiving payments for ninety days, Berthiaume called. Acerra agreed to pay for linens currently delivered, but not for the arrears. On February 21, 1997, the plaintiff’s general manager called Acerra and demanded that $5,000 be paid that day. Acerra refused and said he would not pay until the arrearage question was resolved. The next day, a Saturday, without advance notice, the plaintiff sent its trucks and removed all the linens from the defendants’ premises. The defendants had to scramble and borrow linens from other restaurants to be able to open that weekend. The defendants did not hear from the plaintiff until it filed this action in August, 1999.

Prior to trial, Acerra went through all the invoices. His calculations, introduced as an exhibit, showed that the [67]*67defendants had overpaid $13,518.71 through September, 1996, and had been overbilled $14,376.22. He acknowledged that after adjusting for the overpayments and the overbillings, the defendants owed the plaintiff $8,800. The jury adopted Acerra’s figures. In answers to special questions, the jury found that the plaintiff did not fully perform its obligations under the contracts. The plaintiff, however, was entitled to recover in quantum meruit the sum of $8,800, the amount Acerra conceded was owing. On the defendants’ counterclaim, the jury found that the plaintiff had breached its contracts with the defendants, and that its breach caused the defendants damages of $13,518.71 (the amount Acerra calculated to have been overpaid). The jury found that the plaintiff had committed unfair or deceptive acts, and that the resulting damages were $13,518.71; moreover, as indicated earlier, the jury found that the plaintiff’s actions were wilful and knowing. They determined that “2” was the appropriate multiplier. The judge entered an amended judgment on the plaintiff’s posttrial motion, increasing the award to the plaintiff by $13,518.71.8

2. Chapter 93A violation. Pointing to the jury’s determination that the damages under G. L. c. 93A (before doubling) overlapped the damages for breach of contract, the plaintiff argues that there was here merely a breach of contract and no violation of c. 93A.

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Cite This Page — Counsel Stack

Bluebook (online)
836 N.E.2d 1116, 65 Mass. App. Ct. 63, 2005 Mass. App. LEXIS 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ameripride-linen-apparel-services-inc-v-eat-well-inc-massappct-2005.