Dispatch Communications, LLC v. Veterans Transportation, LLC.

Opinion

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-511

DISPATCH COMMUNICATIONS, LLC

vs.

VETERANS TRANSPORTATION, LLC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant, Veterans

Transportation, LLC (Veterans), was found liable to the

plaintiff, Dispatch Communications, LLC (Dispatch), for damages

pursuant to a contract between the parties. Veterans moved

postjudgment for judgment notwithstanding the verdict, or, in

the alternative, for a new trial. These motions were denied,

and Veterans appeals. We affirm.

1. Ratification. Veterans first alleges that there was no

evidence presented at trial that its agent, Raza Haider, had

actual or apparent authority to enter into the agreement with

Dispatch, and therefore there was no evidence for the jury to

conclude that a contract existed. Regardless of these arguments, there was, in fact, evidence presented that Veterans

ratified the subscription agreement with Dispatch, which would

have allowed the jury to conclude that a contract existed.1

Thus, we affirm the jury's verdict.2

When reviewing the denial of a motion for judgment

notwithstanding the verdict, "[w]e view the evidence in the

light most favorable to the nonmoving party, without weighing

the credibility of the witnesses or otherwise considering the

weight of the evidence" (quotation and citation omitted). Dakin

v. OSI Restaurant Partners, LLC, 100 Mass. App. Ct. 92, 95

(2021). When reviewing the denial of a motion for new trial, we

review for an abuse of discretion. W. Oliver Tripp Co. v.

American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993).

Ordinarily, a motion for new trial is only granted where "the

verdict is so markedly against the weight of the evidence as to

suggest 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." Id.

1 Given the resolution of this matter, we do not address the alternative arguments regarding actual and apparent authority.

2 The jury verdict slip stated that the jury found a contract to exist between the parties. The slip did not specify under what theory of liability the jury reached their conclusion.

2 An agreement made by an agent without authority to do so

can still be enforceable if the principal ratifies the

agreement, by "acquiesc[ing] in the agent's action, or fail[ing]

promptly to disavow the unauthorized conduct after disclosure of

material facts" (citation omitted). Fergus v. Ross, 477 Mass.

563, 567 (2017). "Ratification must be based upon full

knowledge of all material facts, subject, however, to the

qualification that there may be ratification when one purposely

shuts his eyes to means of information within his own possession

and control, and ratifies an act deliberately" (quotation and

citation omitted). Licata v. GGNSC Malden Dexter LLC, 466 Mass.

793, 802 (2014).

Among the evidence put forth to the jury was exhibit 9, in

which Haider states in an e-mail that he "brought a copy of" the

signed subscription agreement back to Veterans and was "pretty

sure [that he] gave a copy to" the controller of Veterans, Mary

Beth Spindler. In addition to this exhibit, Haider testified at

trial that he brought back a copy of the subscription agreement

to Veterans. There was also evidence that for the several

months after Haider brought the agreement back to Veterans,

Veterans paid Dispatch amounts in accordance with the terms of

the subscription agreement. Lastly, there was evidence

presented that Veterans incorporated the subscription agreement

into its contract with the MBTA. From this evidence, a

3 reasonable inference could be drawn by the jury that the

principal, Veterans,3 was in possession and control of the

subscription agreement, which in relevant part specified that

the contract had a three-year term, and thereafter took steps in

accordance with that agreement. Even assuming that there was no

authority for Haider to enter into the subscription agreement,

the jury were still permitted to find a contract on the theory

of ratification, and accordingly, the judge did not abuse his

discretion in denying Veterans's motion for a new trial, nor did

he err in denying the motion for judgment notwithstanding

verdict.

2. Liquidated damages provision. Veterans also argues

that the liquidated damages provision, which in relevant part

states that "if [c]ustomer terminates [s]ervice before the

completion of any [s]ervice [t]erm, [c]ustomer shall be

obligated to pay all amounts due for [s]ervice under this

[a]greement, . . . ." is an unenforceable penalty. We disagree.

We review the enforceability of a liquidated damages

provision de novo. NPS, LLC v. Minihane, 451 Mass. 417, 419

3 Veterans claims that the Marcou brothers are the principals of Veterans. Pursuant to agency principles, within the context of a limited liability corporation, the "principal" here is the entity for which the agent, Haider, was acting. Thus, the principal here is Veterans. See generally Sunrise Props., Inc. v. Bacon, Wilson, Ratner, Cohen, Salvage, Fialky & Fitzgerald, P.C., 425 Mass 63, 66-67 (1997).

4 (2008). "Generally, a liquidated damages provision will be

enforced when, at the time the agreement was made, potential

damages were difficult to determine and the clause was a

reasonable forecast of damages expected to occur in the event of

a breach." TAL Fin. Corp. v. CSC Consulting, Inc., 446 Mass.

422, 431-432 (2006). The burden of showing that a liquidated

damages provision is unenforceable lies with the party

challenging its enforcement. Id. at 430. Veterans conceded

that potential damages were difficult to determine at the time

the agreement was made, and thus the only issue before the judge

was whether the amount recoverable under the provision, which

here was "all amounts due," was a reasonable forecast of damages

expected to occur in the event of a breach. "[T]he

reasonableness of the measure of anticipated damages depends on

the circumstances of each case." NPS, LLC, supra at 420.

Veterans has not met its burden of proof, as it cites no

relevant authority to indicate why the measure of anticipated

damages in this case is unreasonable. In fact, our case law

supports that this provision, which required Veterans to pay

Dispatch no more than the total amount Veterans would have paid

had there been no breach, was reasonable. See NPS, LLC, 451

Mass. at 422 (liquidated damages provision upheld where "the

defendant is required to pay no more than the total amount he

would have paid had he performed his obligations under the

5 agreement"). See generally Cummings Props., LLC v. Hines, 492

Mass. 867, 872 n.6 (2023).

Amended judgment affirmed.

By the Court (Meade, Massing & Brennan, JJ.4),

Clerk

Entered: February 18, 2026.

4 The panelists are listed in order of seniority.