Golber v. BayBank Valley Trust Co.

704 N.E.2d 1191, 46 Mass. App. Ct. 256
CourtMassachusetts Appeals Court
DecidedJanuary 29, 1999
DocketNo. 96-P-1624
StatusPublished
Cited by64 cases

This text of 704 N.E.2d 1191 (Golber v. BayBank Valley Trust Co.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Golber v. BayBank Valley Trust Co., 704 N.E.2d 1191, 46 Mass. App. Ct. 256 (Mass. Ct. App. 1999).

Opinion

Beck, J.

Although there are essentially two parties in this appeal, there were three participants in the underlying commercial triangle. The now silent party was D & W Architectural Woodworking Corporation (D & W), a troubled, but allegedly venerable, enterprise which produced architectural woodworking, store and bank fixtures and shelving, and automated teller [257]*257machine and other interactive environments. By November, 1992, the defendant, BayBank Valley Trust Company (BayBank or bank), had provided financial support to D & W in the form of notes and a line of credit totaling nearly $500,000. But D & W was in need of “additional growth capital.” The plaintiffs, Constance Katz Golber, an experienced investor, and her investment company, Moonglow Investors, Inc. (Moonglow), appeared to be a likely source. She was familiar with the company because the president previously had been a partner of her husband in a consulting business. Golber had confidence in the president, as well as the company, and was prepared to lend the company $125,000. The loan was to be subordinated to Bay-Bank’s loans. Shortly after authorizing the March 15, 1993, transfer of $125,000 to D & W, Golber learned that the. bank had not disclosed information regarding the status of D & W’s account at the bank which she regarded as important to her decision to invest in D & W. A year later, after she had lost her entire investment, Golber and Moonglow brought suit against the bank claiming fraud (count I), negligent misrepresentation (count II), breach of the implied covenant of good faith and fair dealing (count III), and violation of G. L. c. 93A (count V). (They waived a claim of impairment of collateral [count IV].) The jury found for the defendant on counts I and IB. The bank appeals from the jury’s verdict for the plaintiffs on the negligent misrepresentation claim and from the judge’s findings for the plaintiffs on the c. 93A claim. The plaintiffs cross-appeal from the judge’s finding that the c. 93A violation was not wilful or knowing.

Negligent misrepresentation. As we have recently stated, “In order to recover for negligent misrepresentation . . . plaintiff[s] must prove that the defendant (1) in the course of his business, (2) supplie[d] false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance upon the information, and [that he] (6) . . . fail[ed] to exercise reasonable care or competence in obtaining or communicating the information. Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. 581, 587-588 (1996). See Restatement (Second) of Torts § 552 (1977). A claim for negligent misrepresentation is ordinarily one for a jury, unless the undisputed, facts are so clear as to permit only one conclusion. Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. at 588.” Nota Constr. Corp. v. Keyes Assocs., Inc., 45 Mass. App. Ct. 15, 19-20 (1998).

[258]*258The bank claims that it had no duty to disclose D & W’s account status to Golber, absent a special relationship which it says did not exist here, and that the judge should have instructed accordingly, as the bank requested. In support of this claim, the bank cites Wolf v. Prudential-Bache Secs., Inc., 41 Mass. App. Ct. 474, All (1996) (no duty to disclose general partner’s fourteen year old convictions to prospective investors), and Greenery Rehabilitation Group, Inc. v. Antaramian, 36 Mass. App. Ct. 73, 77-78 (1994) (no duty of real estate seller to. inform prospective buyer of key tenant’s precarious financial circumstances). The defendant, arguing insufficient evidence, disputes the plaintiffs’ assertions that the bank made any false representations; that Golber’s reliance on any of the bank’s representations was reasonable; that the bank’s representations were material; and that any misrepresentations were the cause of Golber’s losses.

As to the jury instruction, although “[t]he rule of nonliability for bare nondisclosure has been stated and followed” for years, see Swinton v. Whitinsville Savs. Bank, 311 Mass. 677, 679 (1942), that rule has long been tempered with an exception for “the uttering of a half truth which may be tantamount to a falsehood.” Id. at 678. “Although there may be ‘no duty imposed upon one party to a transaction to speak for the information of the other . . . if he does speak with reference to a given point of information, voluntarily or at the other’s request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading ... as active misrepresentation, and half-truths may be as actionable as whole lies.’ ” Kannavos v. Annino, 356 Mass. 42, 48 (1969). These are the instructions the judge gave. While the judge enunciated the Kannavos standard regarding “half-truths” in her charge on deceit, she clearly incorporated that definition of “misrepresentations of fact” in her charge on negligent misrepresentation, which followed immediately thereafter. Moreover, the judge correctly articulated the defendant’s duty in her charge on negligent misrepresentation, in which she stated, “A person who makes representations under circumstances where he knows that the person receiving the representations will be relying upon them, has a duty to exercise reasonable care in making the representations.” See Restatement (Second) of Torts § 552 (1977); Nycal Corp. v. KPMG Peat [259]*259Marwick LLP, 426 Mass. 491, 495-498 (1998). The instructions were correct statements of the law, and, as shall be evident, the facts warranted their delivery.

The facts. On the negligent misrepresentation claim, in addition to the facts presented above, a jury could have found the following. Golber’s family and its businesses had been clients of the bank for years. However, at about the same time that Golber was making plans for the loan to D & W, the bank asked the family to take its banking business elsewhere because of a dispute about an unrelated matter. Golber was concerned that her involvement with D & W would jeopardize D & W’s relationship with the bank, which until then she regarded as constructive. In January or February, 1993, Golber asked the vice-president of the bank, who had been the family’s account executive and with whom she was still on good terms, “to try to find out about” whether her involvement with D & W would undermine D & W’s relationship with BayBank. Golber told the vice-president that her decision to invest in D & W despite its precarious fiscal condition rested in part on the “positive and good relationship” D & W had with its BayBank account officer, Gail Harris, because Golber “had confidence in that relationship.” The vice-president responded that “he expected [Golber] would have the same positive relationship with Gail Harris that had been evidenced with [other key D & W players] in the previous years.” Golber continued to express these concerns to the vice-president in February and early March, 1993. When Golber received the subordination agreement associated with the loan, which the bank’s attorney had drafted for her March 15 signature, Gail Harris was the “duly authorized officer” who signed on behalf of the bank.

In fact, however, at a January 15, 1993, “watch list” meeting, BayBank had decided to transfer the D & W account to the “work out” or special loans division.

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Bluebook (online)
704 N.E.2d 1191, 46 Mass. App. Ct. 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/golber-v-baybank-valley-trust-co-massappct-1999.