Giuliano v. Piantkowski

20 Mass. L. Rptr. 17
CourtMassachusetts Superior Court
DecidedAugust 16, 2005
DocketNo. 031629BLS2
StatusPublished

This text of 20 Mass. L. Rptr. 17 (Giuliano v. Piantkowski) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giuliano v. Piantkowski, 20 Mass. L. Rptr. 17 (Mass. Ct. App. 2005).

Opinion

Botsford, Margot, J.

After a lengthy jury-waived trial and a decision dated March 23, 2005 (March 23 decision), that addressed most of the issues tried, there are three issues remaining. The first is the claim [18]*18the plaintiffs Louis Giuliano and GTWO, LLC (GTWO/MA)3 that the defendant Plainville Racing Company, LLC (PRC) breached its lease with GTWO/MA. The second issue is the amount of dam-if any, that PRC in its role as a plaintiff in counterclaim is entitled to recover on account of the failure of GTWO/MA to provide a completed “turn key” racing facility. The final issue is the amount of attorfees and costs that the two sets of plaintiffs in counterclaim, (1) Gary Piantkowski, PRC, and Management Acquisition Company (MAC),4 and (2) Ourway Really, LLC (Ourway), are entitled to recover account of their successful counterclaims under G.L.c. 93A, and, in Ourway’s case, its successful claims under a lease agreement with GTWO/MA.

I.The Giuliano Parties’ Claims Alleging Breach of Lease

Counts VI and VII of the Giuliano parties’ amended complaint respectively set out claims against PRC for declaratory judgment regarding the October 1, 1998, lease between PRC and GTWO/MA, and breach of contract in relation to that lease. Following the March 23 decision, in response to my inquiry about untried claims, the Giuliano parties submitted a memorandum asserting that the two lease-based claims set out in Counts VI and VII remain untried.5 As Ourway and PRC have pointed out in their response to the plaintiffs’ memorandum, the record indicates that up until the March 23 decision, the Giuliano parties took the position that both these counts had been tried, and, in the Giuliano parties’ view, had been proved.6

Based on the trial record, I conclude that in the course of the trial the Giuliano parties tried or attempted to try the breach-of-lease claims set out in Counts VI and VII of their amended complaint. I also conclude that the Giuliano parties did not prove these claims by a preponderance of the evidence. I am not persuaded, for example, that there were problems with the pond created on the race track properly, or that even assuming there were problem(s) with the pond, that problem or those problems constituted a breach of the lease. (There was also no proof of damages resulting from the alleged breach.) The same points hold true concerning the plaintiffs’ claim concerning fleas, and claim that PRC was in violation of Section 10 in the lease (see trial ex. 15). As for rental payments, the evidence indicates that Giuliano had agreed that rent would not be due until the race track facility opened or live racing began at the track. There was no proof that PRC did not make all the rental payments required.

II. PRC’s Breach of Contract

Damages (Turn Key Facility)

The March 23 decision concluded that the PRC parties had proved the counterclaim that GTWO/MA failed to provide a completed turn key race track facility by April of 1999, in breach of the lease agreement between GTWO/MA and PRC. I suggested in the decision that further discussion would be helpful concerning the damages sustained by PRC on account of breach. In a subsequent memorandum, the PRC parties claim $217,232.29 as damages, describing sum as “cover work” necessary to complete the race track facility in accordance with the plans and specifications that had been connected with the lease agreement and submitted to the State Racing Commission. (These appear as Exhibit 1558A.) The Giuliano parties oppose this requested damage award, contending that the claimed damages have not been proved.

I consider here the six separate areas of damages advanced by the PRC parties.

1. Work on

I have reviewed the pertinent portions of Russell Paige’s transcript and examined the pages of ex. 1558A on which PRC relies. I conclude that PRC has adequately established that Douglas Lumber performed the claimed work to cover for unfinished work of GTWO/MA. I will allow the $24,587.78 claimed by PRC.7

With respect to the claim Robert Paige, the brother of Russell Paige, I conclude that the documentation was confusing and not sufficiently tied to the original plans or to work GTWO/MA was supposed to have completed but failed to complete. Moreover, the lack of detail and of supporting documentary evidence is particularly troubling because the person who is claimed to have performed the work is so closely tied to the only witness on this point, Russell Paige. The $15,031 in damages sought in connection with Robert Paige’s work will not be allowed as damages.

2.Work on Clubhouse

The amount claimed for work by Douglas Floorcovering will be allowed except for $1,015 for carpeting in the president’s office, given Russell Paige’s lack of certainty whether that carpeting had been ordered by Patricia Lett. The total allowed for the Douglas Floorcovering work is therefore $7,875. The total amount claimed for payments to Nappa Building Corp., $8,641.88, will be allowed. The total damages for work on the clubhouse come to $16,516.88.

3.Work on the Track

PRC seeks $18,436.13 paid to Gravel (Boro). The documentation offered does not provide sufficient support for the claim that this sum was paid to complete work that was part of the original specifications. The principal Boro invoice included by PRC is for approximately $27,000, but PRC seeks to recover only $18,436.36. There is no indication how the amount claimed and the invoice go together. Paige testified that the invoice for most of the Boro work was missing, and he had no explanation for why. The job tickets submitted — presumably connected to the missing invoice — are dated between April 8, 1999, and [19]*19approximately May 10, 1999; both of these dates are before Giuliano is claimed to have left the site. In sum, I cannot find that PRC has proved its claim for $18,436.36 in damages connected to Boro’s work, and will not allow this sum as part of the contract damages.

PRC also seeks to recover $22,180 paid to Bostonian Hauling for hauling loam to the infield. While the Giuliano parties argue that the infield is not included in the original plans, I disagree.8 Of this total, $13,680 (invoices for $6,200 and $7,480) will be allowed as damages. The necessary links between the remaining invoices and checks offered by PRC was not established.9

4.Work for Paving and Grading

The PRC parties seek to recover $6,030.86 paid to Lorusso Corporation. However, I fail to discern a persuasive connection between the checks and the invoices at issue. Moreover, the contact included in ex. 1630A about which Russell Paige testified is actually a proposal dated December 1, 1999, proposing work to be completed in the following 30 days, and the checks in evidence (ex. 1630B) are dated September 3 and December 3, 1999. They thus seem unconnected to the contract proposal.10 The claimed $6,030.86 will not be included in the breach of contract damages.

PRC also seeks $92,408 paid to Child Construction. However, it is not clear whether this work was necessary to complete work that GTWO/MA was ultimately supposed to perform.

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Cite This Page — Counsel Stack

Bluebook (online)
20 Mass. L. Rptr. 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giuliano-v-piantkowski-masssuperct-2005.