Instant Image Print Shop, Inc. v. Lavigne, Keating, Halstead, Inc.

1998 Mass. App. Div. 74
CourtMassachusetts District Court, Appellate Division
DecidedApril 15, 1998
StatusPublished
Cited by3 cases

This text of 1998 Mass. App. Div. 74 (Instant Image Print Shop, Inc. v. Lavigne, Keating, Halstead, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Instant Image Print Shop, Inc. v. Lavigne, Keating, Halstead, Inc., 1998 Mass. App. Div. 74 (Mass. Ct. App. 1998).

Opinion

Gelinas, J.

Plaintiff Instant Image Print Shop, Inc. (Instant) brought an action against, among others, defendant Stephen F. Keating (Keating), attempting to establish Keating’s personal liability for debts incurred by LaVigne Keating Co., Inc., (the Corporation), a Massachusetts corporation of which Keating was treasurer and director. The complaint alleged that as the corporation came into financial difficulty and subsequent to a written agreement in settlement of a prior law suit, resulting in Instant’s removing a trustee attachment of Corporation’s funds, Keating as treasurer made certain false representations to Instant concerning two matters. The first of these alleged a representation concerning the Corporation’s intent to pay for certain corporate checks that had been returned; the second allegation was that the Corporation would place certain business with Instant, with a part of Corporation’s “markup” on this business to be applied directly to an acknowledge debt owed Instant by Corporation. Eventually Corporation failed without paying its debt and Instant seeks payment from Keating individually, arguing that the false representations made by Keating, even though in his corporate capacity as treasurer, give rise to personal liability as tortious acts.

[75]*75After trial the judge made certain findings of fact and found that Instant had been damaged in the amount of $11,271.46. Among the judge’s findings were that

1. “Plaintiff accepted additional work extending credit to the corporate defendant in reliance upon Keating’s representation.”

2. “The plaintiff relied upon representatives (sic) which were made by Keating.”

3. “Keating knew plaintiff would so rely.”

4. “The representative (sic) were either 1) false when knowingly made by Keat-ing, or 2) intentionally not carried out by Keating.”

5. “In either event Keating is personally liable for damages flowing from fraud or intentional interference with the contractual relation between the parties.”

Having found for Instant, the judge declined to act upon Instant’s requests for findings and rulings, deeming them waived. Keating filed three requests for rulings of law4 on which no action was taken.

Instant seeks recovery from Keating personally on three grounds: that Keating made false representation to Instant that certain returned checks would be paid and they were in fact not paid; that Keating made false representation that sufficient business would be placed with Instant that, when portions of Corporation’s markup were additionally taken by Instant, would be sufficient to satisfy the outstanding liability; and that Keating had Corporation bill a mutual client directly, contrary to his representation that Instant would be paid and could keep the proceeds.

As to the first allegation, that representations were made concerning the payment of certain checks, the judge made no finding and the record does not warrant finding any representation to this effect. With regard to the two remaining grounds, we find that Keating nowhere challenged the sufficiency of the evidence. All three requests for rulings of law subsequently presented to the Appellate Division are correct statements of law but their allowance would not change the outcome of the case given the trial judge’s findings of fact.

To the extent that the defendant’s appeal questions the sufficiency of the evidence, such a challenge cannot be heard. “The correct method for the defendant to challenge the sufficiency of evidence to warrant a finding for the plaintiff was to file a request for ruling substantially in the form required by rule 64A(b) (2), Dist./ Mun. Cts. R. Civ. P. None of the requests filed by the defendant squarely raises the issue of the sufficiency of evidence to warrant a finding for the plaintiff.” O’Sullivan v. Shaw's Supermarket, 1997 Mass. App. Div. 1. No such request was filed by the defendant in the instant case.

There is in the record sufficient evidence to warrant the Trial Court’s factual findings. It was the duty of the judge to resolve conflicting factual issues presented by the evidence and when this is done these findings are not reviewable. Safety Fund Bank v. Hurtubise, 1996 Mass. App. Div. 207. If the trial judge makes one of several possible choices of what facts are supported by the evidence, the judge’s choice is not clearly erroneous. W. Oliver Tripp Co. v. American Hoechst Corp., 34 [76]*76Mass. App. Ct. 744,751 (1993). Where the Trial Court’s findings are supported by testimony and other evidence, the Appellate Division does not usurp the fact finding role of the Trial Court. See Nicholas v. John Hancock Mutual Life Insurance Co., 1996 Mass. App. Div. 172, 173.

Defendant’s status as a corporate officer does not shield him from liability in the instant case. Under Massachusetts law, corporate officers are personally liable for any tortious activity in which they personally participate, see Frontier Management Co. v. Belboa Ins. Co., 658 F. Supp. 987, 991 (D. Mass. 1986). A corporate officer may be liable for his own fraudulent representations and is not protected because his representations were made while acting in official corporate capacity. Frontier Management Co. at 993. What is required is some showing of direct personal involvement by the corporate officers in some decision or action which is causally related to plaintiff's injury, See Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 907 (1st Cir. 1980). An officer who is a “moving, active conscious force” behind a corporate tort has been held liable for damage. See Polo Fashions, Inc. v. Branded Apparel Merchandising, Inc., 592 F. Supp. 648, 652 (D. Mass. 1984). An individual is not immunized as an officer of a corporation for the acts he is alleged to have committed personally. Nader v. Citron, 372 Mass. 96, 102 (1977). A corporate officer is liable for torts in which he personally participated whether or not he was acting within the scope of his authority. LaClair v. Silberline Manufacturing Co., Inc., 379 Mass. 21, 29 (1979).

Persons who control a corporation may be held liable along with the corporation for torts committed by them in connection with corporate business. Lawrence Trust Co. v. Sun-American Pub. Co., 245 Mass. 262, 266 (1923). Corporate employees are not shielded from liability because the wrongful acts occurred in the course of employment. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811 (1990). Corporate employees are liable for torts in which they personally participated. Lyon v. Morphew, 424 Mass. 828, 831-832 (1997). “An agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal, ...” RESTATEMENT (SECOND) OF AGENCY, §343 (1958). All parties engaged in committing an intentional tort may be held jointly and severally liable for the wrong. Refrigeration Discount Corp. v. Catino, 330 Mass. 230, 235 (1953).

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Bluebook (online)
1998 Mass. App. Div. 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/instant-image-print-shop-inc-v-lavigne-keating-halstead-inc-massdistctapp-1998.