NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-964
APPROMED CORP.
vs.
THE DEHNER COMPANY, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, ApproMed Corp. (ApproMed), brought suit
against the defendant, The Dehner Company, Inc. (Dehner),
regarding a business dispute. Following a trial, ApproMed
appeals from a final judgment in favor of Dehner. ApproMed
argues that the trial judge erred in allowing a motion for a
directed verdict on two of ApproMed's claims: conversion and
breach of an oral contract.1 We affirm.
1ApproMed's claims for misrepresentation, breach of contract, and breach of the covenant of good faith and fair dealing were submitted to a jury, which found in favor of Dehner. The trial judge likewise found in favor of Dehner on an additional claim for violation of G. L. c. 93A. ApproMed raises no arguments with respect to those claims on appeal. Background. In reviewing the allowance of a motion for a
directed verdict, we recite the evidence in the light most
favorable to ApproMed.2 See Parsons v. Ameri, 97 Mass. App. Ct.
96, 105 (2020).
ApproMed is in the business of providing merchandise to
government agencies. Dehner is in the business of manufacturing
military-grade boots. ApproMed wanted to work with Dehner to
submit a bid to supply boots to the Massachusetts State Police.
To that end, the president of ApproMed, Oliver Udemba, contacted
the president of Dehner, Jeffrey Ketzler, to discuss entering
into a distributor agreement; such an agreement was a required
part of the bid to the State Police. On March 3, 2015, during a
telephone call between the two, Ketzler said that he would "back
[Udemba] up" and sent him an application to be a distributor of
Dehner's boots. Udemba returned the application to Ketzler.
Udemba also prepared an exclusive distributor agreement for
Ketzler to sign. However, Ketzler stated in an e-mail message
to Udemba that he could not sign an exclusive distributor
agreement. Udemba then removed the exclusivity provision, at
which point Ketzler, again through e-mail correspondence, raised
other concerns, including one related to what ApproMed's
2 We note that ApproMed has not included in the record appendix the copies of any trial exhibits, but only the trial transcript. Accordingly, our review is limited to the transcript.
2 discount on the boots would be, which cost $650 per pair.
Ultimately, Ketzler did return an unsigned distributor agreement
to Udemba, but it did not state what ApproMed's discount on the
boots would be.
ApproMed submitted a bid of $779.56 per boot pair to the
Massachusetts State Police, assuming that the cost to acquire
the boots from Dehner would be the undiscounted amount of $650
per pair. Dehner, unbeknownst to Udemba at the time, submitted
a bid of $650 per pair and won the contract.
Discussion. We review the grant of a motion for a directed
verdict to determine
"whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury could reasonably return a verdict in favor of the plaintiff, i.e., whether from the evidence it was possible to draw enough reasonable inferences to make out the elements of the plaintiff's case."
W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct.
744, 751 (1993).
We first address ApproMed's claim for conversion. "The
elements of conversion may be established by a showing that one
person exercised dominion over the personal property of another,
without right, and thereby deprived the rightful owner of its
use and enjoyment." Matter of Hilson, 448 Mass. 603, 611
(2007). ApproMed argues that Dehner converted ApproMed's
3 proprietary pricing information by using it to submit a lower
bid. We are not persuaded.
As a preliminary matter, there was no evidence that Dehner
knew the amount that ApproMed planned to bid. Udemba testified
that he did not tell Ketzler either the amount that ApproMed
would be bidding or how much ApproMed would be marking up the
boots.3 ApproMed argues only that financial data can be a trade
secret but does not (1) explain why its pricing information,
specifically, qualified as a trade secret, or (2) provide any
support for the proposition that, even if the pricing
information did qualify as a trade secret, it could have been
the subject of an action for conversion. See Restatement
(Second) of Torts § 242 (1965) (action for conversion lies with
respect to intangible property only if intangible property was
"merged in a document"). See also Blake v. Professional Coin
Grading Serv., 898 F. Supp. 2d 365, 386 (D. Mass. 2012) ("a
plaintiff is not entitled to recover for conversion of
intangible property"). Accordingly, the argument is waived.
See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.
1628 (2019); Toney v. Zarynoff's, Inc., 52 Mass. App. Ct. 554,
564 n.10 (2001). In any event, Dehner's act of offering the
State Police the price it is undisputed Dehner charged other
Udemba first testified that he did tell Ketzler but then 3
clarified that he misunderstood the question.
4 distributors is not a conversion of ApproMed's pricing. The
judge did not err by directing a verdict for Dehner.
We next address ApproMed's claim for breach of an oral
contract. To prevail on a claim for breach of contract, a
plaintiff must demonstrate that (1) there was an agreement
between the parties; (2) the agreement was supported by
consideration; (3) the plaintiff was ready, willing, and able to
perform his or her part of the contract; (4) the defendant
committed a breach of the contract; and (5) the plaintiff
suffered harm as a result. See Bulwer v. Mount Auburn Hosp.,
473 Mass. 672, 690 (2016). Concerning the first element, "[i]t
is axiomatic that to create an enforceable contract, there must
be agreement between the parties on the material terms of that
contract, and the parties must have a present intention to be
bound by that agreement" (citation omitted). Lambert v. Fleet
Nat'l Bank, 449 Mass. 119, 123 (2007). Further, "[w]hile it is
not necessary that every term of the agreement be specified with
precision, '[t]he parties must . . . have progressed beyond the
stage of "imperfect negotiation"'" (citation omitted). Id.
ApproMed argues that the trial judge erred in concluding
that any oral contract between the parties to "work together"
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NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-964
APPROMED CORP.
vs.
THE DEHNER COMPANY, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, ApproMed Corp. (ApproMed), brought suit
against the defendant, The Dehner Company, Inc. (Dehner),
regarding a business dispute. Following a trial, ApproMed
appeals from a final judgment in favor of Dehner. ApproMed
argues that the trial judge erred in allowing a motion for a
directed verdict on two of ApproMed's claims: conversion and
breach of an oral contract.1 We affirm.
1ApproMed's claims for misrepresentation, breach of contract, and breach of the covenant of good faith and fair dealing were submitted to a jury, which found in favor of Dehner. The trial judge likewise found in favor of Dehner on an additional claim for violation of G. L. c. 93A. ApproMed raises no arguments with respect to those claims on appeal. Background. In reviewing the allowance of a motion for a
directed verdict, we recite the evidence in the light most
favorable to ApproMed.2 See Parsons v. Ameri, 97 Mass. App. Ct.
96, 105 (2020).
ApproMed is in the business of providing merchandise to
government agencies. Dehner is in the business of manufacturing
military-grade boots. ApproMed wanted to work with Dehner to
submit a bid to supply boots to the Massachusetts State Police.
To that end, the president of ApproMed, Oliver Udemba, contacted
the president of Dehner, Jeffrey Ketzler, to discuss entering
into a distributor agreement; such an agreement was a required
part of the bid to the State Police. On March 3, 2015, during a
telephone call between the two, Ketzler said that he would "back
[Udemba] up" and sent him an application to be a distributor of
Dehner's boots. Udemba returned the application to Ketzler.
Udemba also prepared an exclusive distributor agreement for
Ketzler to sign. However, Ketzler stated in an e-mail message
to Udemba that he could not sign an exclusive distributor
agreement. Udemba then removed the exclusivity provision, at
which point Ketzler, again through e-mail correspondence, raised
other concerns, including one related to what ApproMed's
2 We note that ApproMed has not included in the record appendix the copies of any trial exhibits, but only the trial transcript. Accordingly, our review is limited to the transcript.
2 discount on the boots would be, which cost $650 per pair.
Ultimately, Ketzler did return an unsigned distributor agreement
to Udemba, but it did not state what ApproMed's discount on the
boots would be.
ApproMed submitted a bid of $779.56 per boot pair to the
Massachusetts State Police, assuming that the cost to acquire
the boots from Dehner would be the undiscounted amount of $650
per pair. Dehner, unbeknownst to Udemba at the time, submitted
a bid of $650 per pair and won the contract.
Discussion. We review the grant of a motion for a directed
verdict to determine
"whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury could reasonably return a verdict in favor of the plaintiff, i.e., whether from the evidence it was possible to draw enough reasonable inferences to make out the elements of the plaintiff's case."
W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct.
744, 751 (1993).
We first address ApproMed's claim for conversion. "The
elements of conversion may be established by a showing that one
person exercised dominion over the personal property of another,
without right, and thereby deprived the rightful owner of its
use and enjoyment." Matter of Hilson, 448 Mass. 603, 611
(2007). ApproMed argues that Dehner converted ApproMed's
3 proprietary pricing information by using it to submit a lower
bid. We are not persuaded.
As a preliminary matter, there was no evidence that Dehner
knew the amount that ApproMed planned to bid. Udemba testified
that he did not tell Ketzler either the amount that ApproMed
would be bidding or how much ApproMed would be marking up the
boots.3 ApproMed argues only that financial data can be a trade
secret but does not (1) explain why its pricing information,
specifically, qualified as a trade secret, or (2) provide any
support for the proposition that, even if the pricing
information did qualify as a trade secret, it could have been
the subject of an action for conversion. See Restatement
(Second) of Torts § 242 (1965) (action for conversion lies with
respect to intangible property only if intangible property was
"merged in a document"). See also Blake v. Professional Coin
Grading Serv., 898 F. Supp. 2d 365, 386 (D. Mass. 2012) ("a
plaintiff is not entitled to recover for conversion of
intangible property"). Accordingly, the argument is waived.
See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.
1628 (2019); Toney v. Zarynoff's, Inc., 52 Mass. App. Ct. 554,
564 n.10 (2001). In any event, Dehner's act of offering the
State Police the price it is undisputed Dehner charged other
Udemba first testified that he did tell Ketzler but then 3
clarified that he misunderstood the question.
4 distributors is not a conversion of ApproMed's pricing. The
judge did not err by directing a verdict for Dehner.
We next address ApproMed's claim for breach of an oral
contract. To prevail on a claim for breach of contract, a
plaintiff must demonstrate that (1) there was an agreement
between the parties; (2) the agreement was supported by
consideration; (3) the plaintiff was ready, willing, and able to
perform his or her part of the contract; (4) the defendant
committed a breach of the contract; and (5) the plaintiff
suffered harm as a result. See Bulwer v. Mount Auburn Hosp.,
473 Mass. 672, 690 (2016). Concerning the first element, "[i]t
is axiomatic that to create an enforceable contract, there must
be agreement between the parties on the material terms of that
contract, and the parties must have a present intention to be
bound by that agreement" (citation omitted). Lambert v. Fleet
Nat'l Bank, 449 Mass. 119, 123 (2007). Further, "[w]hile it is
not necessary that every term of the agreement be specified with
precision, '[t]he parties must . . . have progressed beyond the
stage of "imperfect negotiation"'" (citation omitted). Id.
ApproMed argues that the trial judge erred in concluding
that any oral contract between the parties to "work together"
was invalidated by the Statute of Frauds or the provisions of
the Uniform Commercial Code. We need not reach this issue
because Udemba's own testimony demonstrates that the parties
5 never reached an agreement that amounted to an enforceable
contract. Instead, the evidence supports a reasonable inference
that, on March 3, they engaged in an initial conversation
regarding working together to further Udemba's efforts in
submitting a bid to the State Police. Udemba described the
contract as follows:
"That Dehner is going to back me up all the way for me to submit a bid offering his boots and he's going to provide me with all the specifications I need, and that he's going to support me to submit one bid by ApproMed Corp. offering boots sourced from Dehner."
However, after having the conversation which led Udemba to
conclude he had such an agreement with Dehner, the parties
negotiated, yet failed to agree to, key terms of an enforceable
contract. For example, ApproMed's claim that it arrived at an
oral contract with Dehner to "work together" is undermined by
the parties' inability to agree to the distributor discount
ApproMed would receive as well as Ketzler's subsequent refusal
to sign the proposed distributor agreement prepared by Udemba.4
This distributor agreement, according to Udemba, was "one of the
4 Although Udemba testified that Ketzler told him that other distributors received a standard twenty-seven percent discount, or "cut," he conceded that Ketzler never explicitly offered ApproMed a twenty-seven percent discount. In fact, Udemba testified that he did not take into account a twenty-seven percent discount when he submitted the bid. Because Ketzler had not included this information in the final distributor agreement documents that they exchanged, the final agreement documents contained no pricing information.
6 most important elements" of their agreement because it was a
necessary component of his bid to the State Police. Udemba
further admitted that he needed Ketzler's signature on the
distributor agreement in order "to bind him." However, after
receiving the distributor agreement from Udemba, Ketzler said
that the agreement contained "problems," and expressed
reluctance to be bound by the proposed terms. By rejecting the
terms of ApproMed's proposed distributor agreement, Ketzler
clearly signaled that he had not intended to be bound by their
initial oral discussion, but instead, reserved committing to
material terms until the execution of a more formal agreement.
Lambert, 449 Mass. at 123.
The parties' ongoing negotiations concerning material terms
of an agreement demonstrate the parties had not previously
entered into an enforceable oral contract. Accordingly, a jury
could not have reasonably concluded the plaintiff established
7 that the parties formed an oral contract that the defendant
later breached. The judge properly directed out the claim.
Judgment affirmed.
By the Court (Henry, Hershfang & Smyth, JJ.5),
Clerk
Entered: March 6, 2025.
5 The panelists are listed in order of seniority.