Scheff v. DeSisto Schools, Inc.

1985 Mass. App. Div. 225

Opinion

Dohoney, J.

This matter comes to the Appellate Division on appeal from the Southern Berkshire Division. The matter had been tried there on theories of money had and received, unjust enrichment, conversion and violation of General Laws, Chapter 93A. The defendant denied the allegations and filed a Counterclaim. The evidence was totally contained within a Stipulation. The basic issue in this case is the liability of one who enrolls in an educational institution and withdraws prior to completion of the contemplated term. The trial justice essentially ruled that such a person is responsible for the charges for the entire term.

• After the matter had been completely tried and briefed in the Southern Berkshire Division, the plaintiff filed a Motion for Leave to File a Supplemental Brief. In essense, the plaintiff wishes to bring into play General Laws, Chapter 255, Section 13K. This statute appears to provide a substantially different remedy than adopted by trial justice. However, the plaintiff did not allege any violations of the statute at trial and did not introduce sufficient evidence to bring themselves within the statute. The defendant asserts that the statute is not applicable.

However, in view of substantially different remedy, we will remand the matter to trial justice for his determination whether additional evidence ought to be taken on the issue of the applicability of General Laws, Chapter 255, Section 13K.