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
25-P-12
B-DUNZ, INC.1
vs.
THE BILINGUAL MONTESSORI SCHOOL OF SHARON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This action stems from a soured business relationship
between the plaintiff, a landscaping company, and its client,
the defendant school. The plaintiff's claims and the
defendant's counterclaims were tried before a jury in the
Superior Court. The judge entered directed verdicts and
subsequently dismissed certain of the plaintiff's claims and the
defendant's counterclaims, and the jury otherwise returned
verdicts in the plaintiff's favor. After the defendant moved
for judgment notwithstanding the verdict (JNOV) and for a new
trial, the judge allowed the motion, in part, ordering a new
1 Doing business as Shoveltown Landscaping. trial unless the plaintiff accepted a remittitur reducing the
damages awarded by $2,000. Otherwise, the judge denied the
motion. The plaintiff accepted the remittitur, the judge
allowed the plaintiff's motion for costs, a new final judgment
entered on April 19, 2024, and this appeal followed.
Because we (1) agree with the judge's rulings on the
parties' motions for directed verdict and JNOV, (2) discern
neither abuse of discretion nor other error in the judge's
denial of the defendant's motion for a new trial, (3) are
satisfied that the judge acted permissibly in limiting the
defendant's use of evidence relating to insurance, (4) conclude
that the defendant waived its objections to the judge's failure
to give certain of its proposed jury instructions, and (5) are
not persuaded that the judge abused her discretion in allowing
the plaintiff's posttrial motion for costs, we affirm the
judgment dated April 19, 2024.
Background. We briefly summarize relevant procedural
history and facts as the jury could have found them, reserving
certain details for later discussion. The plaintiff is a
landscaping business founded and operated by Brian Donovan. The
defendant is a school owned by Linda Valentin. In 2017, the
defendant hired the plaintiff to do landscaping work. The
parties orally agreed that the plaintiff would perform snow
removal for the defendant; Donovan prepared a written proposal
2 for the work, including a schedule of plowing fees, but no
written contract was signed. During the winter of 2017 to 2018,
the plaintiff plowed and, at Valentin's instruction, salted the
school's parking area and walkways. Although the plaintiff
billed the defendant for that work, there was an unpaid balance
of $10,778 on the defendant's account by March 2018.
The parties' business relationship was complicated by
damage to certain parts of the defendant's premises. In the
fall, the plaintiff's employees had displaced the top of an
ornamental fountain (fountain damage). While snowplowing during
a storm, one of the plaintiff's temporary employees damaged an
ornamental tree, hydrangeas, and some boxwoods in a corner of
the school's parking lot (plowing damage). Additionally,
Valentin claimed that the plaintiff had damaged a number of
ornamental boxwoods, which she wanted the plaintiff to replace
(boxwood damage). Donovan acknowledged that the plaintiff was
responsible for the fountain and plowing damage, which he
consistently told Valentin that the plaintiff would fix, but he
denied that the plaintiff was responsible for the boxwood
damage.
On March 26, 2018, Donovan met with Valentin in an effort
to collect the unpaid balance for the plaintiff's landscaping
and plowing work. During the meeting, Valentin prepared a
written "agreement" (settlement agreement) that she and Donovan
3 then signed. The settlement agreement documented the balance
due to the plaintiff, the defendant's payment of $4,190 on March
26, and the defendant's agreement to pay the remaining amount
due2 "upon completion of all repairs and tree replacements." A
"List of damages" included in the settlement agreement
identified outstanding work: replacement of "perhaps half of
the boxwood," repair of areas with gravel and mulch, and
replacement of the fountain top. Donovan agreed to the terms of
the settlement agreement based on his understanding that the
scope of the work was limited to replacement of the fountain top
and repair of the plowing damage and that it would cost the
plaintiff between $2,000 and $2,500. Donovan and Valentin
signed the settlement agreement, and Valentin made the initial
payment of $4,190.
Immediately after the initial payment was made, however,
Valentin made it clear to Donovan that she expected the
plaintiff to make repairs to the defendant's property that were
much more expansive and expensive than those to which Donovan
had agreed when he signed the settlement agreement. As a
result, Donovan abandoned his efforts to negotiate a resolution
2 The settlement agreement notes the outstanding amount as "$10,778," the amount paid on March 26 as "$4,190," and the balance to be paid on completion of the work as "$6,584." The last figure represents a slight calculation error.
4 with the defendant. On March 28, 2018, the plaintiff filed a
small claim action against the defendant in the District Court,
seeking the unpaid balance of $6,588 on the defendant's
landscaping and plowing bills. The plaintiff's small claim
action was transferred to the regular civil docket and then to
the Superior Court, where the plaintiff filed an amended
complaint alleging breach of contract, breach of the implied
covenant of good faith and fair dealing, and violation of G. L.
c. 93A. The defendant answered and counterclaimed for breach of
contract, negligence, fraud, abuse of process, and violation of
G. L. c. 93A.
The case went to trial before a jury. As relevant to this
appeal, the judge allowed the plaintiff's motion for a directed
verdict in its favor on the defendant's counterclaim for abuse
of process, dismissed the plaintiff's claim under G. L. c. 93A
with the plaintiff's agreement, and denied the defendant's
motion for a directed verdict on its counterclaims for breach of
contract.3 The remaining claims and counterclaims were submitted
to the jury; the jury found for the plaintiff on all of them,
including in an advisory verdict on the G. L. c. 93A
3 The judge considered the counterclaim for violation of the implied covenant of good faith and fair dealing to be part of the counterclaim for breach of contract. No party objected to this approach.
5 counterclaim, and awarded damages of $6,588 to the plaintiff on
its breach of contract claim. The judge adopted the jury's
advisory verdict on the G. L. c. 93A counterclaim. Judgment
entered accordingly.
The defendant moved timely for JNOV or, in the alternative,
for a new trial. See Mass. R. Civ. P. 50 (b), as amended, 428
Mass. 1402 (1998). The plaintiff moved for an award of costs.
The judge ordered a new trial unless the plaintiff accepted a
remittitur reducing the damages awarded to the plaintiff by
$2,000, but otherwise denied the defendant's motion. She
allowed the motion for costs. The plaintiff accepted the
remittitur, the first judgment was vacated, a new final judgment
entered, and this appeal followed.
Discussion. 1. Motions for directed verdict and JNOV. a.
Standard of review. When considering a challenge to a judge's
ruling on a motion for a directed verdict or for JNOV, we ask
"whether 'anywhere in the evidence, from whatever source
derived, any combination of circumstances could be found from
which a reasonable inference could be made in favor of the
[nonmovant].'" O'Brien v. Pearson, 449 Mass. 377, 383 (2007),
quoting Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass.
119, 121 (1992). A reasonable inference must be "based on
'probabilities rather than possibilities' and not the result of
'mere speculation and conjecture.'" Poirier v. Plymouth, 374
6 Mass. 206, 212 (1978), quoting Alholm v. Wareham, 371 Mass. 621,
627 (1976).
b. Denial of defendant's motions for directed verdict and
JNOV on plaintiff's claim for breach of contract. We do not
agree with the defendant's contention that it was entitled to a
directed verdict on this claim based on the plaintiff's own
"material breach" of the oral contract for services. See
Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App.
Ct. 599, 610 (2003) (material breach by one party excuses other
party from performance). The conduct constituting the breach,
as the defendant frames it, was that which resulted in the
fountain damage and the plowing damage. The defendant's
argument fails because the evidence, viewed in the light most
favorable to the plaintiff, see O'Brien, 449 Mass. at 383,
established that the damage in question was both accidental and
not significant, such that it did not concern an "essential and
inducing feature of the contract." Lease-It, Inc. v.
Massachusetts Port Auth., 33 Mass. App. Ct. 391, 396 (1992),
quoting Bucholz v. Green Bros. Co., 272 Mass. 49, 52 (1930)
(defining "material breach"). See DiBella v. Fiumara, 63 Mass.
App. Ct. 640, 644 (2005) ("insignificant or accidental" breaches
are generally not material [emphasis added]). We think the
defendant's argument particularly weak where both Donovan and
7 Valentin testified that Donovan had agreed to repair that
particular damage. See id. at 646 n.7.
c. Entry of directed verdict against defendant on its
counterclaim for abuse of process. The defendant's counterclaim
for abuse of process depended on the defendant's ability to show
that the plaintiff brought the suit against it "to accomplish
some ulterior purpose for which [the process] was not designed
or intended, or which was not the legitimate purpose of the
particular process employed." Millennium Equity Holdings, LLC
v. Mahlowitz, 456 Mass. 627, 636 (2010), quoting Quaranto v.
Silverman, 345 Mass. 423, 426 (1963). We agree with the judge
that even viewing the evidence in the light most favorable to
the defendant as the nonmovant, see O'Brien, 449 Mass. at 383,
it showed only that the plaintiff filed the small claim action
to collect a balance that Valentin conceded was owed for
landscaping and plowing services.
The defendant's argument that Donovan's failure to mention
the settlement agreement or its "repair obligation" in its
statement of small claim was evidence of the requisite ulterior
or illegitimate purpose, see Millennium Equity Holdings, LLC,
456 Mass. at 636, is not persuasive. Even if the evidence
permitted a reasonable inference that the plaintiff had a
contractual "repair obligation," the abuse of process claim
would nonetheless fail because there was no evidence of an
8 ulterior purpose -- the desire to recover money, even with a
meritless claim, is not an ulterior motive in a suit for
damages. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 713 (2011)
("ulterior purpose element is not satisfied merely by a showing
that a person commenced litigation knowing it was groundless").
"Rather, the ulterior purpose must be to gain some collateral
advantage," id. at 713-714, and there is no evidence of that in
this case.
2. Motion for a new trial.4 a. Standard of review. "The
judge should only set aside a verdict as against the weight of
the evidence when it is determined that the jury 'failed to
exercise an honest and reasonable judgment in accordance with
the controlling principles of law'" (citation omitted).
O'Brien, 449 Mass. at 384. Such an order is only appropriate
where the judge is convinced that "the jurors allowed themselves
to be misled, were swept away by bias or prejudice, or for a
combination of reasons, including misunderstanding of applicable
law, failed to come to a reasonable conclusion." Meyer v.
Wagner, 57 Mass. App. Ct. 494, 504-505 (2003), quoting W. Oliver
Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748
4 To the extent that the defendant's challenge to the ruling on the motion for a new trial also relies on a claim that it was entitled to jury instructions the judge declined to give, we are not persuaded for reasons we explain below.
9 (1993). See Evans v. Multicon Constr. Corp., 6 Mass. App. Ct.
291, 295 (1978) ("the judge should not . . . nullify a jury's
verdict by granting a new trial unless it appears on a survey of
the whole case that otherwise a miscarriage of justice would
result").
Our review of the judge's order denying the motion for a
new trial is for an abuse of discretion, and where the motion
was decided by the trial judge, we accord "considerable
deference" to the judge's decision. Gath v. M/A-COM, Inc., 440
Mass. 482, 492 (2003). See W. Oliver Tripp Co., 34 Mass. App.
Ct. at 747 ("the occasions on which appellate courts have
thought to have been abused the broad discretion of a trial
judge on such a motion are extremely rare; like snow storms in
mid-May, such occasions may occur, but they induce considerable
astonishment when they do").
b. Counterclaim for breach of contract based on the
settlement agreement. "A settlement agreement is a contract and
its enforceability is determined by applying general contract
law." Sparrow v. Demonico, 461 Mass. 322, 327 (2012). "An
enforceable agreement requires (1) terms sufficiently complete
and definite, and (2) a present intent of the parties at the
time of formation to be bound by those terms." Targus Group
Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). It
also requires a "manifestation of mutual assent, otherwise known
10 as a 'meeting of the minds.'" Sea Breeze Estates, LLC v.
Jarema, 94 Mass. App. Ct. 210, 215 (2018), quoting I & R
Mechanical, Inc. v. Hazelton Mfg. Co., 62 Mass. App. Ct. 452,
455 (2004).
In this case, Donovan's testimony provided ample evidence
to show that the parties did not reach a meeting of the minds on
an essential term of the settlement agreement -- the scope of
the plaintiff's obligation to repair the damages claimed by the
defendant. That evidence showed, and the jury found, that no
contract was formed. See Situation Mgt. Sys., Inc. v. Malouf,
Inc., 430 Mass. 875, 878 (2000) ("It 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").
Where the defendant failed to prove that the settlement
agreement was a contract, it necessarily failed to prove that
the plaintiff breached the contract's terms. Cf. Sea Breeze
Estates, LLC, 94 Mass. App. Ct. at 216-218 (where there was no
agreement on material terms, there was no breach). The judge
did not abuse her discretion in denying the defendant's motion
for a new trial on this counterclaim.
c. Counterclaim for negligence. The judge denied the
defendant's motion for a new trial on the second counterclaim,
which alleged negligence, conditioned on the plaintiff's
11 acceptance of a remittitur. See Mass. R. Civ. P. 59 (a), 365
Mass. 827 (1974). The amount of the remittitur corresponded to
the cost of repairing the damage that Donovan, in his testimony,
admitted was caused by the plaintiff, and the plaintiff accepted
the remittitur.
The defendant failed to introduce evidence to establish
that the plaintiff's negligence was the cause of damage beyond
the fountain damage and the plowing damage accounted for by the
remittitur. Additionally, the plaintiff introduced expert
testimony to show that the more extensive landscaping problems,
which the defendant attributed to the plaintiff's poor
workmanship, could instead have been the result of weather
conditions or disease. As such, it was reasonable for the jury
to conclude that the defendant had failed to prove that the
plaintiff was responsible for harm beyond that for which Donovan
accepted responsibility. "It is a bedrock principle of
negligence law that a [party] cannot and should not be held
liable for a harm unless the [party] caused the harm." Doull v.
Foster, 487 Mass. 1, 6-7 (2021). Given the state of the
evidence, we are satisfied that the judge did not abuse her
discretion in her ruling on the defendant's motion for a new
trial on the counterclaim for negligence.
d. Counterclaims for fraud and violation of G. L. c. 93A.
The defendant's challenge to the denial of a new trial on its
12 third and fifth counterclaims, which alleged fraud and violation
of G. L. c. 93A, respectively, is limited to an attack on the
judge's exclusion of evidence relating to the parties'
insurance. Because, as we discuss in more detail below, we are
satisfied that the judge's evidentiary ruling was not an abuse
of discretion, we conclude that her denial of the motion for a
new trial on these counterclaims was likewise within her
discretion.
3. Limitation on defendant's use of evidence of insurance.
We discern no abuse of discretion in the judge's rulings
limiting the defendant's ability to introduce evidence of
insurance in support of its counterclaims for fraud, abuse of
process, and violation of G. L. c. 93A. In general, a party may
not show that an opposing party is insured against liability.
Goldstein v. Gontarz, 364 Mass. 800, 808 (1974). See Mass. G.
Evid. § 411 (2025) (evidence of insurance coverage is not
admissible "to prove whether the person or entity acted . . .
wrongfully"). Although a judge has the discretion to admit
evidence of insurance to prove, for example, ownership or a
witness's bias, Goldstein, supra at 812 & n.13, the defendant
has not provided us with any precedent for the admissibility of
such evidence to show motive or intent in the context of a case
13 like this one,5 nor are we aware of any. Even if we were to
conclude (as we do not) that the evidence at issue was otherwise
admissible, the judge excluded it based on her determination
that it was substantially more prejudicial than probative. See
Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004).
Mindful that "the rules regarding the inadmissibility of
insurance exist so that juries will not be swayed by the fact
that a deep-pocket insurance company has paid or will pay for
the loss," Antoniadis v. Basnight, 99 Mass. App. Ct. 172, 177
(2021), we cannot say that the judge's assessment or the
resulting ruling constituted an abuse of discretion.
Nor are we persuaded that the judge's ruling precluded the
defendant from impeaching Donovan's credibility. The judge
permitted defense counsel to cross-examine Donovan using the
notes from his interview on March 27, 2018, with an insurance
claims adjuster, and (as the judge noted in her thorough written
5 The defendant's reliance on Commonwealth v. Anolik, 27 Mass. App. Ct. 701 (1989), for this proposition is misplaced. Anolik is a criminal case in which the appealing party had been convicted of charges including burning a dwelling with the intent to defraud an insurer. See id. at 702. In that context, this court held that evidence related to insurance, including the division of the insurance proceeds after the fire and that the defendant had advised the homeowner to increase the insurance on the property before the fire, was admissible "to establish [the defendant's] motive, plan or intent" to commit the crimes. Id. at 707. Here, the defendant's counterclaims did not allege that the plaintiff attempted to defraud any of its insurers, making this case distinguishable from Anolik.
14 decision on the defendant's motion for a new trial) defense
counsel "chose not to question Donovan relative to any
statements made to his insurer before the March 26 meeting" with
Valentin.
4. Jury instructions. As to jury instructions, Mass. R.
Civ. P. 51 (b), 365 Mass. 816 (1974), provides, "No party may
assign as error the giving or the failure to give an instruction
unless he objects thereto before the jury retires to consider
its verdict, stating distinctly the matter to which he objects
and the grounds of his objection." The defendant's challenge to
the judge's omission of certain of the defendant's proposed jury
instructions fails because the defendant did not satisfy the
requirements of this rule.
On the morning of the fourth day of trial, before
recommencing the evidence, the judge provided counsel with draft
jury instructions. At the morning break, the judge held a
charge conference. Although at that time,6 defense counsel
raised concerns about the instructions that the judge did
include in the draft, he did not object to the judge's omission
from the draft of any of the defendant's proposed instructions
on detrimental reliance, waiver, or estoppel. After the jury
instructions had been given, defense counsel put on the record
6 And later, when the judge provided a revised draft.
15 the fact of his objection to the judge's failure to give certain
instructions that the defendant had proposed, including those
the defendant focuses on here. However, he did no more than
note the absence of those instructions. Absent a clear
statement identifying for the judge the "grounds of [its]
objection," Mass. R. Civ. P. 51 (b), the defendant's challenge
to the judge's failure to give the omitted instructions is
waived, and we do not consider it.
5. Order allowing plaintiff's motion for costs. Where the
plaintiff prevailed on all claims except those it brought
against the defendant for violation of G. L. c. 93A, and where
that claim was dismissed with the plaintiff's assent, the judge
did not abuse her discretion in allowing the plaintiff's motion
for its litigation costs. See Mass. R. Civ. P. 54 (d), as
16 appearing in 382 Mass. 821 (1980) ("costs shall be allowed as of
course to the prevailing party unless the court otherwise
directs").
Judgment dated April 19, 2024, affirmed.
By the Court (Blake, C.J., Hand & Toone, JJ.7),
Clerk
Entered: March 5, 2026.
7 The panelists are listed in order of seniority.