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
24-P-1441
DANIEL J. BENWAY1
vs.
CRAIG J. CALLAHAN & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Daniel J. Benway, appeals from a judgment in
the Superior Court dismissing his unjust enrichment claim
against the defendants, Craig and Cynthia Callahan.3 Because it
is unclear whether this judgment amounted to an improper
reconsideration of the decision of a prior panel of this court,
as opposed to merely a determination of no damages on the
1 Doing Business as Irrigation Plus.
2Cynthia Provencher and Connorstone Engineering, Inc. Although the plaintiff's complaint named Cynthia Provencher as a defendant, the defendants' brief refers to her as Cynthia Callahan, and we do likewise.
3The plaintiff's breach of contract claim against Connorstone Engineering, Inc. was dismissed before the first trial. We use the term defendants to refer to Craig and Cynthia Callahan. plaintiff's claim, we vacate the judgment and remand the case
for clarification of the judgment and, if necessary, further
proceedings consistent with this memorandum and order.
Background. In 2016, the plaintiff filed a complaint
against the defendants claiming breach of contract, unjust
enrichment, violation of the covenant of good faith and fair
dealings, and violation of G. L. c. 93A. The plaintiff's claims
arise from work he performed for the defendants involving the
development of a subdivision on the defendants' property.
Following a jury trial in 2019, the jury found that, even though
the parties did not enter into a contract, the defendants were
unjustly enriched and awarded the plaintiff $200,000 in damages.
The defendants filed a motion for judgment notwithstanding the
verdict (judgment n.o.v.) or, in the alternative, for remittitur
or a new trial. The trial judge allowed the request for
judgment n.o.v. and entered judgment in the defendants' favor.
The plaintiff appealed from that judgment to this court.
On appeal, a panel of this court concluded in an
unpublished decision that although the jury's award of $200,000
was unsupported by the evidence, the defendants' request for
judgment n.o.v. should have been denied and "there was a basis
for a remittitur" on the plaintiff's unjust enrichment claim.
See Benway v. Callahan, 100 Mass. App. Ct. 1114 (2021). The
panel held that remittitur was "the more appropriate remedy"
2 because at trial the plaintiff "proved that he conferred a
benefit -- the subdivision approval -- on the Callahans, that he
expected to be compensated for his work, and that he suffered
the opportunity cost of other work." It stated that "the
Callahans retained the subdivision approval . . . that was
acquired with the help of [the plaintiff's] efforts." While the
plaintiff was not able to realize his expectation to share in
the profits of the development due to Mr. Callahan's termination
of their relationship, the plaintiff "could nonetheless seek
compensation in an amount by which the Callahans were unjustly
enriched." Accordingly, the panel ordered that the defendants'
motion for judgment n.o.v. or, in the alternative, for
remittitur or a new trial should be "modified to deny the
request for [judgment n.o.v.]." It remanded the case "for entry
of a revised order on that motion giving [the plaintiff] an
opportunity to remit so much of the damages as are excessive,
the amount of which is to be determined by the trial judge in
the first instance, or for a new trial, pursuant to Mass. R.
Civ. P. 59 (a), 365 Mass. 827 (1974)."
On remand, the same judge issued an order on remittitur
that placed a value on the plaintiff's unjust enrichment claim
at $10,000. The order further stated that "[s]hould [the
plaintiff] decline to accept this remitter, he shall be entitled
to a new trial pursuant to Mass. R. Civ. P. 59 (a) on the issue
3 of damages." After the plaintiff rejected the remittitur, the
case proceeded to a jury-waived trial before a second judge.
Both the plaintiff and Mr. Callahan testified. In a thoughtful
written memorandum of decision, the second judge addressed the
parties' testimony regarding their professional relationship and
expectations as well as the elements that a plaintiff must prove
in order to recover on a claim for unjust enrichment. After
finding that "[t]here was no credible evidence from which the
court could determine by any measurable calculus what, if any,
benefit [the plaintiff's] activities provided," the judge
concluded that the plaintiff "failed to meet his burden of proof
as required on the first element of an unjust enrichment claim."
The memorandum of decision stated that "the court enters
judgment in favor of the defendant." The judgment, which was
authored by the clerk, and the corresponding docket entry stated
that the action was "dismissed on the merits" and the defendants
"will recover statutory costs."
Discussion. On appeal, the plaintiff contends that the
second judge erred by dismissing his unjust enrichment claim on
the merits because the prior panel's decision limited the scope
of any new trial to the issue of damages.
On remand, a trial court judge must follow the terms of an
appellate court's decision as to matters addressed in that
decision. See City Coal Co. of Springfield. v. Noonan, 434
4 Mass. 709, 710–711 (2001). The appellate court's instructions
become "the governing 'law of the case' and should not [be]
reconsidered by the remand judge" (citation omitted). Id. at
712 (vacating portion of judgment that exceeded trial judge's
authority by reconsidering issue that appellate court already
decided). See Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168
(1939) ("The general proposition which moved [the trial court] -
- that it was bound to carry the mandate of the upper court into
execution and could not consider the questions which the mandate
laid at rest -- is indisputable").
In reversing or modifying a judgment, an appellate court
may remand a case to the trial court for a new trial limited to
the issue of damages. See, e.g., West v. Shawmut Design &
Const., 39 Mass. App. Ct. 247, 253, S.C. 421 Mass. 1108 (1995),
citing Corsetti v. Stone Co., 396 Mass. 1, 27 (1985). Although
the prior panel did not specify that any trial on remand would
be so limited, that is the most sensible interpretation of its
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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
24-P-1441
DANIEL J. BENWAY1
vs.
CRAIG J. CALLAHAN & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Daniel J. Benway, appeals from a judgment in
the Superior Court dismissing his unjust enrichment claim
against the defendants, Craig and Cynthia Callahan.3 Because it
is unclear whether this judgment amounted to an improper
reconsideration of the decision of a prior panel of this court,
as opposed to merely a determination of no damages on the
1 Doing Business as Irrigation Plus.
2Cynthia Provencher and Connorstone Engineering, Inc. Although the plaintiff's complaint named Cynthia Provencher as a defendant, the defendants' brief refers to her as Cynthia Callahan, and we do likewise.
3The plaintiff's breach of contract claim against Connorstone Engineering, Inc. was dismissed before the first trial. We use the term defendants to refer to Craig and Cynthia Callahan. plaintiff's claim, we vacate the judgment and remand the case
for clarification of the judgment and, if necessary, further
proceedings consistent with this memorandum and order.
Background. In 2016, the plaintiff filed a complaint
against the defendants claiming breach of contract, unjust
enrichment, violation of the covenant of good faith and fair
dealings, and violation of G. L. c. 93A. The plaintiff's claims
arise from work he performed for the defendants involving the
development of a subdivision on the defendants' property.
Following a jury trial in 2019, the jury found that, even though
the parties did not enter into a contract, the defendants were
unjustly enriched and awarded the plaintiff $200,000 in damages.
The defendants filed a motion for judgment notwithstanding the
verdict (judgment n.o.v.) or, in the alternative, for remittitur
or a new trial. The trial judge allowed the request for
judgment n.o.v. and entered judgment in the defendants' favor.
The plaintiff appealed from that judgment to this court.
On appeal, a panel of this court concluded in an
unpublished decision that although the jury's award of $200,000
was unsupported by the evidence, the defendants' request for
judgment n.o.v. should have been denied and "there was a basis
for a remittitur" on the plaintiff's unjust enrichment claim.
See Benway v. Callahan, 100 Mass. App. Ct. 1114 (2021). The
panel held that remittitur was "the more appropriate remedy"
2 because at trial the plaintiff "proved that he conferred a
benefit -- the subdivision approval -- on the Callahans, that he
expected to be compensated for his work, and that he suffered
the opportunity cost of other work." It stated that "the
Callahans retained the subdivision approval . . . that was
acquired with the help of [the plaintiff's] efforts." While the
plaintiff was not able to realize his expectation to share in
the profits of the development due to Mr. Callahan's termination
of their relationship, the plaintiff "could nonetheless seek
compensation in an amount by which the Callahans were unjustly
enriched." Accordingly, the panel ordered that the defendants'
motion for judgment n.o.v. or, in the alternative, for
remittitur or a new trial should be "modified to deny the
request for [judgment n.o.v.]." It remanded the case "for entry
of a revised order on that motion giving [the plaintiff] an
opportunity to remit so much of the damages as are excessive,
the amount of which is to be determined by the trial judge in
the first instance, or for a new trial, pursuant to Mass. R.
Civ. P. 59 (a), 365 Mass. 827 (1974)."
On remand, the same judge issued an order on remittitur
that placed a value on the plaintiff's unjust enrichment claim
at $10,000. The order further stated that "[s]hould [the
plaintiff] decline to accept this remitter, he shall be entitled
to a new trial pursuant to Mass. R. Civ. P. 59 (a) on the issue
3 of damages." After the plaintiff rejected the remittitur, the
case proceeded to a jury-waived trial before a second judge.
Both the plaintiff and Mr. Callahan testified. In a thoughtful
written memorandum of decision, the second judge addressed the
parties' testimony regarding their professional relationship and
expectations as well as the elements that a plaintiff must prove
in order to recover on a claim for unjust enrichment. After
finding that "[t]here was no credible evidence from which the
court could determine by any measurable calculus what, if any,
benefit [the plaintiff's] activities provided," the judge
concluded that the plaintiff "failed to meet his burden of proof
as required on the first element of an unjust enrichment claim."
The memorandum of decision stated that "the court enters
judgment in favor of the defendant." The judgment, which was
authored by the clerk, and the corresponding docket entry stated
that the action was "dismissed on the merits" and the defendants
"will recover statutory costs."
Discussion. On appeal, the plaintiff contends that the
second judge erred by dismissing his unjust enrichment claim on
the merits because the prior panel's decision limited the scope
of any new trial to the issue of damages.
On remand, a trial court judge must follow the terms of an
appellate court's decision as to matters addressed in that
decision. See City Coal Co. of Springfield. v. Noonan, 434
4 Mass. 709, 710–711 (2001). The appellate court's instructions
become "the governing 'law of the case' and should not [be]
reconsidered by the remand judge" (citation omitted). Id. at
712 (vacating portion of judgment that exceeded trial judge's
authority by reconsidering issue that appellate court already
decided). See Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168
(1939) ("The general proposition which moved [the trial court] -
- that it was bound to carry the mandate of the upper court into
execution and could not consider the questions which the mandate
laid at rest -- is indisputable").
In reversing or modifying a judgment, an appellate court
may remand a case to the trial court for a new trial limited to
the issue of damages. See, e.g., West v. Shawmut Design &
Const., 39 Mass. App. Ct. 247, 253, S.C. 421 Mass. 1108 (1995),
citing Corsetti v. Stone Co., 396 Mass. 1, 27 (1985). Although
the prior panel did not specify that any trial on remand would
be so limited, that is the most sensible interpretation of its
decision. At the first trial, the jury found for the plaintiff
on his unjust enrichment claim and awarded him $200,000. While
the prior panel found that these damages were unsupported by the
evidence, it concluded that judgment n.o.v. was improperly
entered and a remittitur or a new trial was appropriate. In
particular, the panel concluded that "a remittitur is the more
appropriate remedy" because the plaintiff "proved that he
5 conferred a benefit . . . that he expected to be compensated for
his work, and that he suffered the opportunity cost of other
work." See Tody's Serv., Inc. v. Liberty Mut. Ins. Co., 496
Mass. 197, 200 (2025), quoting Columbia Plaza Assocs. v.
Northeastern Univ., 493 Mass. 570, 589 (2024) ("To succeed on an
unjust enrichment claim, a plaintiff must establish that (1) it
'conferred a measurable benefit' on the defendant, (2) it
'reasonably expected compensation,' and (3) 'the defendant
accepted the benefit with knowledge' of that reasonable
expectation").
The prior panel ordered the trial court on remand to modify
"[t]he order allowing the [defendants'] motion for JNOV, or in
the alternative, for remittitur or a new trial" and enter "a
revised order on that motion giving [the plaintiff] an
opportunity to remit so much of the damages as are excessive
. . . or for a new trial." In support of that order, the panel
cited rule 59 (a), which allows for a new trial on the issue of
damages where they are found to be excessive, provided that "the
prevailing party has first been given an opportunity to remit so
much thereof as the court adjudges is excessive." Mass. R.
Civ. P. 59 (a), 365 Mass. 827 (1974). Importantly, rule 59 (a)
"only comes into play when the issue in dispute is damages, not
an issue relating to liability." Pelletier v. Somerset, 458
Mass. 504, 522 (2010).
6 On remand, the first judge stated in his order on
remittitur that, "[s]hould [the plaintiff] decline to accept
this remitter, he shall be entitled to a new trial pursuant to
Mass. R. Civ. P. 59 (a) on the issue of damages." After the
plaintiff rejected the remittitur, the case proceeded to a
second trial which both parties understood was limited to the
issue of damages. In his opening statement, the plaintiff's
counsel told the second judge that "the only question remaining
is how much money the [plaintiff] is owed. And, you know,
that's what we're going to be presenting to you today." The
defendants' counsel similarly acknowledged that "[t]he only part
of the case that remains is whether plaintiff can prove any
damages for his unjust enrichment claim."
The plaintiff contends that, following the second trial,
the second judge departed from the prior panel's mandate by
dismissing the plaintiff's unjust enrichment claim on its merits
rather than determining an award of damages. At the outset of
his memorandum of decision, the second judge stated that "[t]he
plaintiff rejected the remittitur and accordingly opted for a
new trial on Count II," the unjust enrichment claim. The judge
then concluded that, based on his review of the evidence, the
plaintiff "failed to meet his burden of proof as required on the
first element of an unjust enrichment claim," i.e., that the
plaintiff conferred a measurable benefit on the defendants. See
7 Tody's Serv. Inc., 496 Mass. at 200. While the judge's
assessment of the evidence presented by the plaintiff as to
damages may be sound, his conclusion as to the first element of
the claim is in tension with the panel's determination that the
plaintiff "proved that he conferred a benefit" and could "seek
compensation in an amount by which the [defendants] were
unjustly enriched." Furthermore, the memorandum of decision
concluded by stating that the court "enter[ed] judgment in favor
of the defendant," and the clerk-authored judgment dismissed
"the action . . . on the merits" and awarded costs to the
defendants. Those dispositions do not reflect a decision on
remand limited to the issue of damages.
As the defendants correctly point out, the prior panel "did
not direct any fact finder to determine that any amount of
damages [was] proven." In fact, the panel identified various
shortcomings in the plaintiff's evidence concerning damages at
the first trial, and it did not go so far as to hold that the
benefit proven by the plaintiff at the first trial was
"measurable." In light of these facts, we do not foreclose the
possibility that, based on the evidence presented at the second
trial, a determination of no damages on the plaintiff's unjust
enrichment claim may be appropriate. However, because it is
unclear from the memorandum of decision and judgment whether the
second judge limited the second trial to the issue of damages,
8 as both the first judge and the parties at trial anticipated, we
vacate the judgment entered on July 31, 2024, and remand the
case for clarification of the judgment and, if necessary,
further proceedings consistent with this memorandum and order.4
So ordered.
By the Court (Vuono, Desmond & Toone, JJ.5),
Clerk
Entered: November 19, 2025.
4 The defendants' request for attorney's fees is denied.
5 The panelists are listed in order of seniority.