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-750
JACQUELINE ELECTRIC & CONTRACTING, INC.
vs.
DAVID TETREAULT1 & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jacqueline Electric & Contracting, Inc.
(JEC), brought this action seeking damages against its former
employee, David Tetreault.3 JEC claimed that Tetreault took
1 Also known as David R. Tetreault.
2Santander Bank, N.A.; TD Bank, N.A.; Citi Cards, a Division of City Bank; and First Essex Bank of Lawrence as trustee process, injunctive relief, and reach and apply defendants.
3JEC's complaint alleged the following claims: (1) larceny by embezzlement, pursuant to G. L. c. 266 § 30; (2) conversion; and (3) money had and received; and sought (4) a declaratory judgment; (5) an injunction preventing Tetreault from spending or transferring any of the funds at issue and reach and apply relief; and (6) real estate attachments against the bank holding the mortgage on Tetreault's home, and trustee process attachments against the bank which financed his personal credit card. approximately two million dollars from the company without
authority. At trial, Tetreault did not dispute that he took
large sums of money from JEC. He maintained, however, that he
had permission from JEC's owner and president, Jacqueline
Gorman, to take the funds as compensation pursuant to an oral
employment agreement. Gorman testified that she did not
authorize the payments at issue. The jury believed Tetreault
and returned a verdict in his favor. Thereafter, JEC's motion
for a new trial, motion for judgment notwithstanding the
verdict, or, in the alternative, for a new trial, and motions
for reconsideration were denied. This appeal ensued.4
Background. The relevant facts are as follows. JEC is a
general contracting and electrical company with a principal
place of business in South Easton. As noted, Gorman is the
owner of the company. She met Tetreault in 2014 at their local
gym. After learning that Tetreault was a disabled veteran,
Gorman offered him part-time employment, which Tetreault
accepted. Tetreault began working fifteen to sixteen hours a
week and was paid $13 an hour. Initially, Tetreault's duties
consisted of cleaning up jobsites and making deliveries. As
time went on, Tetreault assumed additional responsibilities,
which included data entry of invoices, bills and banking
Tetreault, who represented himself at trial, did not enter 4
an appearance and did not file a brief.
2 statements. In view of these new responsibilities, Gorman
orally agreed to raise Tetreault's hourly wage to $15 an hour
with a weekly cap of $500 a week. Occasionally, Gorman also
permitted Tetreault to use JEC's credit card to take his wife
out to dinner and gave him gift cards as bonuses. Tetreault's
responsibilities continued to increase and soon included
managing JEC's books and accounts. Ultimately, Tetreault was
involved in all day-to-day operations of the company, aside from
buying and bidding, and had almost full responsibility for the
company's finances.5 According to Tetreault, Gorman orally
agreed to increase his salary to compensate him for the added
responsibilities and additional hours although no specific
amount of compensation was discussed.
In 2016-2017, Gorman noticed discrepancies in JEC's
accounting statements, and she questioned how JEC's "money
started disappearing." In March of 2021, she contacted JEC's
corporate accountant, Charles Woodward, with whom she claimed to
have discovered that Tetreault had altered bank statements to
disguise his use of company funds to pay his personal credit
card bills. Gorman testified that she and Woodward also found
that Tetreault hid these payments within JEC's job cost reports,
5 Tetreault testified that he was involved in new aspects of the business and was essentially running the office, which required him to come in at 4:30 A.M. each morning.
3 which Tetreault prepared and uploaded into QuickBooks, an
accounting software program.6 Beginning in 2020, Tetreault used
as much as $40,000 a month in company funds to cover his credit
card debts.7 By 2021, that amount had increased substantially to
between $70,000 and $100,000 a month. Gorman estimated that
Tetreault had taken almost a million dollars in 2021 before she
terminated his employment in August.
As previously noted, Tetreault admitted that he used
company funds and claimed that he did so with Gorman's knowledge
and permission. At trial he explained how he transferred money
from JEC's operating accounts to pay his credit card bills and
disguised the payments as job costs.8 Although Tetreault
acknowledged that Gorman never expressly agreed to the amount of
money he could withdraw from JEC's accounts and that he never
6 Woodward also had no knowledge of any agreement between Gorman and Tetreault and Tetreault testified that he did not tell Woodward about the agreement because "the agreement was between [him and Gorman]".
7 Tetreault used his credit card to pay for gas, food, home and auto repair, and "online gaming."
8 Tetreault testified,
" If I get a credit card statement, I would look at the amount. I then log onto my credit card statement, make the payment. The monies funds were transferred from JEC's operating accounts to pay that amount. I would then credit that amount in said checkbook, so it balanced. And then I would put a matching invoice into commodities and do a job cost, so the books were balanced."
4 told her how much money he was taking each month, he asserted
that Gorman was aware of the amounts he took because he gave her
the job cost reports to review. Thus, according to Tetreault,
"if there was an issue," Gorman would have "address[ed] it
[with] [him]." Gorman contradicted Tetreault's claim and
testified that she could not have known what Tetreault was doing
by examining the job cost reports because Tetreault hid the
"unauthorized" transfers by "collaps[ing] the categories" of
expenses on a project instead of listing them out on the job
cost reports as he had done previously.
At the close of all the evidence, JEC moved for a directed
verdict. The thrust of JEC's argument was that Tetreault's
testimony was so unbelievable no rational jury could accept it
as true. In addition, JEC argued that the evidence did not
warrant a finding that Tetreault and Gorman had entered into an
enforceable employment contract because the two had never agreed
on the amount of compensation to which Tetreault was entitled.
The judge denied the motion, explaining that it was "the jury's
role (and not the judge's)" to decide if Tetreault was telling
the truth. He further concluded that "there's no doubt there
was an agreement [between Gorman and Tetreault]" and the issue
for the jury was whether Tetreault took more compensation than
authorized under the agreement and, if so, how much. The judge
then informed the parties that he would instruct the jury on a
5 claim of breach of the parties' employment agreement and would
not instruct the jury on JEC's claims for conversion or money
had and received.9
Thereafter, the judge instructed the jury in accordance
with his ruling on the theory of liability and provided the jury
with two preprinted general verdict slips: one for a verdict in
favor of JEC, and one in favor of Tetreault. After deliberating
for about four hours, the jury returned its verdict. The
correct verdict slip ("VERDICT OF THE JURY FOR THE DEFENDANT")
was signed by the foreperson and dated. In addition, the
foreperson wrote "not guilty" on the verdict slip and initialed
that insertion. The transcript reflects that the judge reviewed
the verdict slip, stated that the additional words were not
necessary, and instructed the foreperson to strike the words
"not guilty." The foreperson complied, and the verdict was
returned to the court clerk, who read it aloud. The verdict was
then confirmed by the foreperson and all the jurors to be a true
verdict.
After judgment entered, JEC filed a motion for a new trial
on the ground that the judge improperly altered the jury's
verdict, and a motion for judgment notwithstanding the verdict,
9 The judge also dismissed JEC's claim of embezzlement, reasoning that "[e]mbezzlement is not a cause of action. It's not a civil cause of action. It's a crime." JEC does not challenge this ruling on appeal.
6 or, in the alternative for a new trial, on the ground that the
evidence did not support the verdict and the judge erred by not
instructing the jury on conversion and money had and received.
The judge denied both motions in two separate well-reasoned
memoranda of decisions and orders.10
Discussion. 1. Denial of JEC's motions for a directed
verdict and judgment notwithstanding the verdict. JEC argues
that it was entitled to a verdict in its favor because
(1) Tetreault was not credible and no reasonable jury could find
that he had permission to pay himself such large sums of money;
and (2) the evidence did not warrant a finding that Tetreault
and Gorman had entered into an enforceable employment contract
because there was no "meeting of the minds" with regard to the
amount of Tetreault's compensation. I & R Mech. Inc. v.
Hazelton Mfg. Co., 62 Mass. App. Ct. 452, 455 (2004), quoting
Restatement (Second) of Contracts § 17 comment c (1981). We
conclude that the motions were properly denied.
Review of the denial of a motion for directed verdict or
judgment notwithstanding the verdict,
"requires us to construe the evidence in the light most favorable to the nonmoving party [here, Tetreault] and disregard that favorable to the moving party [JET]. . . . Our duty in this regard is to evaluate whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant]."
10 JEC's motions to reconsider also were denied.
7 O'Brien v. Pearson, 449 Mass. 377, 383 (2007) (quotations
omitted). As the judge correctly noted when he denied the
motions, Tetreault's testimony provided sufficient factual
support for a reasonable inference that Gorman gave him
permission to take company funds as compensation and that he did
so pursuant to an oral agreement. Even if Tetreault's testimony
was highly implausible, the issue of credibility is "properly
left for the jury." Lupia v. Marino, 353 Mass. 749 (1967).
Here, Tetreault testified that he was authorized to withdraw
funds from JEC's accounts based on the number of hours he
worked, and that he was entitled to additional compensation
because he was working long hours in a role with significant
authority. That it may seem unlikely that Gorman would
authorize the withdrawal of such large sums or that Gorman
disputed Tetreault's claims at trial is inconsequential. The
testimony created a factual dispute which could only be resolved
upon determining Tetreault's and Gorman's credibility, a
decision the judge properly left for the jury. See Commonwealth
v. Fitzgerald, 376 Mass. 402, 411 (1978). See also Situation
Mgmt. Sys. v. Malouf, Inc., 430 Mass. 875, 879 (2000)
(resolution of whether material terms were yet to be negotiated
was fact question properly reserved for jury). Accordingly, JEC
8 was not entitled to a judgment in its favor on the ground that
Tetreault's testimony, in JEC's view, was not credible.
Additionally, while it "is axiomatic that to create an
enforceable contract, there must be agreement between the
parties on the material terms of that contract[,] . . . [i]t is
not required that all terms of the agreement be precisely
specified." Id. at 878 (citations omitted). "The parties must,
however, have progressed beyond the stage of 'imperfect
negotiation.'" Id., quoting Lafayette Place Assocs. v. Boston
Redevelopment Auth., 427 Mass 509, 517-518 & n.4 (1998), cert.
denied, 525 U.S. 1177 (1999). Although there was no dispute
that the parties did not specify the precise amount that
Tetreault was allowed to withdraw each month, Tetreault's
testimony provided a sufficient basis from which the jury could
infer that he and Gorman had agreed that he was entitled to
significant compensation. Given these circumstances, the
failure to specify the amount did not render the agreement
unenforceable.
2. Theory of liability. The judge concluded that the
evidence supported only one viable theory of liability, namely
breach of contract.11 As a result, he declined to instruct the
11JEC also challenges the judge's instruction on breach of contract and argues that the judge erred when he stated "Tetreault has testified that the agreement was modified . . . to have [JEC] pay his personal credit card bills in an
9 jury on JEC's claims of conversion or money had and received.
We discern no error.
"The elements of conversion may be established by a showing
that one person exercised dominion over the personal property of
another, without right, and thereby deprived the rightful owner
of its use and enjoyment." Matter of Hilson, 448 Mass. 603, 611
(2007). At trial, the judge ruled that the evidence did not
support a claim of conversion because Tetrault had control over
JEC's finances. In other words, Tetreault properly "exercised
dominion" over the funds at issue. The judge stated:
"[conversion] does not apply here because, to prove conversion, you have to prove that the defendant did not have possession of the money or other property. And here, there's no dispute that Tetreault was in charge of the finances. He had control over where the money went. In denying JEC's motion for a new trial, the judge explained his
ruling that conversion did not apply slightly differently.
Relying on Gossels v. Fleet National Bank, 453 Mass. 366, 372
(2009), in which the Supreme Judicial Court stated "[c]onversion
occurs only when a defendant exercises wrongful control over
specific personal property, not a debt; therefore, bank accounts
cannot be the subject of conversion[,]" the judge determined
unspecified amount," as "there was no such testimony nor evidence of any such statements, agreements, nor . . . understanding between the parties." However, there was no objection to this language and, therefore, the argument is waived, and we need not address it. See Hill v. Metropolitan Dist. Comm'n., 439 Mass. 266, 275 (2003).
10 that Tetreault's conduct of "divert[ing] the company's credit by
use of credit cards and transfers from a bank account and then
altered bank statements and records to conceal the transfers"
did not support a claim of conversion.
Although we believe that the facts presented here are
distinguishable from those in Gossels, supra, we agree with the
judge that the evidence did not support a claim of conversion.
First, there is no question that Tetreault had control over the
company's finances. Second, and more importantly, the jury
unequivocally decided that Tetreault's control over the
company's finances was not wrongful. Thus, even if we were to
assume that the evidence established the elements of conversion,
there was no prejudicial error because the jury rejected JEC's
assertion that Tetreault took the money without authority. The
judge instructed the jury that "the issues for you to decide are
simple and pretty straightforward . . . did Tetreault take
(i.e. convert) more compensation than he was entitled to under
the employment agreement" and "if so, how much more did he take
than he was entitled to?" To answer this question, the jury had
to decide whether Tetreault had a right to the money he took.
Ultimately, JEC's claim of conversion was no more than an
alternative theory, which the jury would have rejected for the
same reason that it concluded there was no breach of contract.
11 With regard to JEC's claim that the judge erred by not
submitting its claim of money had and received to the jury, we
agree with the judge that this theory of liability only applies
where, unlike here, there is no adequate remedy at law. See
Ruiz v. Bally Total Fitness Holding Corp., 447 F.Supp.2d 23, 29
(D. Mass. 2006) ("money had and received [is an] equitable
cause[] of action . . . available to plaintiffs who lack
adequate remedies at law"). Here, the judge correctly concluded
that the evidence established that JEC and Tetreault had an
employment agreement. The dispute between the parties centered
on the terms of the agreement, and, if Tetreault breached the
agreement, the amount of damages owed to JEC. In other words,
the evidence supported a viable claim for a breach of contract,
an adequate remedy at law. See 477 Harrison Ave., LLC v. JACE
Boston, LLC, 483 Mass. 514, 523 (2019). Accordingly, we discern
no error in the judge's decision to deny JEC's request to
instruct the jury on money had and received.
3. The verdict slip. Lastly, JEC argues that it is
entitled to a new trial based on the judge's handling of the
jury verdict. JEC alleges that the judge secretly asked the
foreperson to strike the handwritten words "not guilty" on the
verdict slip and doing so was a violation of due process and
contrary to the procedure set forth in Mass. R. Civ. P. 49, 365
12 Mass. 812 (1974), regarding inconsistent verdicts. We do not
agree.
First, we are not persuaded by JEC's claim that the judge
acted secretly or in any way improperly after the jury returned
its verdict. Simply put, there was no subterfuge. After the
judge was given the verdict slip from the court officer who had
taken it from the foreperson, he said: "All right. So we don't
need the additional writing on the verdict slip. That's not
necessary. So I'm just going to ask the foreperson to cross
that out and initial it, and the verdict will otherwise stand."12
This occurred in the presence of the jury, the parties, and
counsel; the transcript reflects no sidebar discussion. The
judge responded to JEC's allegations in his memorandum and order
wherein he stated,
"The court never held a private meeting with the foreperson of the jury or secretly altered the verdict slip. During the return of the verdict, the judge never called the foreperson to the bench. The foreperson never left the jury box. The court publicly directed the foreperson to strike out an extraneous remark on the verdict slip . . . . Everything took place in open court on the record."
12JEC submitted several affidavits from individuals in the courtroom, at least four of whom were affiliated with JEC, and each affiant stated they did not hear the judge's statement which was captured on the record. Tetreault filed an affidavit in which he stated he clearly recalled hearing the judge's statement in court. Because we rely on the official transcript which makes clear that the entire sequence of events occurred in open court, we need not consider the information contained within any of the affidavits.
13 Based on the foregoing, which is supported by the official
record of the proceedings, we reject without hesitation JEC's
arguments that the judge violated JEC's right to due process.13
We also reject JEC's claim that the verdict was ambiguous
or inconsistent due to the addition of the words "not guilty."
It suffices to note that the words "not guilty," in the
circumstances of this case, constituted no more than mere
"surplusage." Collings v. Pioneer Shade & Screen Co., 356 Mass.
729 (1969) (addition of written word "Guilty", to verdict for
plaintiff in civil case was "pure surplusage [and] not
inconsistent with the verdicts for the plaintiffs").
We affirm the judgment and the orders denying JEC's (i)
motion for a new trial, (ii) motion for judgment notwithstanding
13The judge imposed a sanction on JEC's counsel in connection with his misrepresentations about what occurred in the courtroom. Although JEC appealed from that order, it did not address the issue in its brief and, therefore, any argument regarding the sanction is waived. See Mass. R. A. P. 16(a)(9)(A), as appearing in 481 Mass. 1628 (2019).
14 the verdict or, in the alternative for a new trial, and (iii)
motions for reconsideration, and the order imposing sanctions.
So ordered.
By the Court (Vuono, Neyman & Sacks, JJ.14),
Clerk
Entered: May 12, 2026.
14 The panelists are listed in order of seniority.