State Tax Auditing & Research, Inc. v. Waters Corp.

11 Mass. L. Rptr. 560
CourtMassachusetts Superior Court
DecidedApril 5, 2000
DocketNo. 982594B
StatusPublished

This text of 11 Mass. L. Rptr. 560 (State Tax Auditing & Research, Inc. v. Waters Corp.) 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
State Tax Auditing & Research, Inc. v. Waters Corp., 11 Mass. L. Rptr. 560 (Mass. Ct. App. 2000).

Opinion

Fecteau, J.

Plaintiff, State Tax Auditing & Research, Inc. (STAR) brought this action against defendant, Waters Corporation (Waters) claiming that Waters failed to compensate STAR for services allegedly rendered as a “finder.” Specifically, STAR claims breach of contract (Count I), unjust enrichment (Count II), quantum meruit (Count III) and a violation of G.L.c. 93A (Count IV). Waters now moves for summary judgment on all counts, and for the reasons outlined below, its motion is ALLOWED.

BACKGROUND

The material, undisputed facts, viewed in the light most favorable to the nonmoving party, see Dasha v. Adelman, 45 Mass.App.Ct. 418, 421 (1998), are as follows. On December 19, 1997, John A. Stella, President of STAR, a New Jersey corporation, telephoned [561]*561Michael Brucato, Tax Director of defendant, Waters, a Delaware corporation with a principal place of business in Massachusetts, and offered to participate in Water’s collection or recovery of “probable” tax over-payments in 1996 and 1997. STAR identified these “probable” tax overpayments after unilaterally (and voluntarily) examining the State of Delaware’s public records. This was the first contact between the parties.

As part of its solicitation, on December 19, 1997, STAR also faxed a one page purported contract to Waters to execute and return. STAR offered to furnish information and services to permit Waters to recover such overpayments in return for fifty (50%) percent of any tax recovered. Waters never executed the contract.

By letter dated February 9, 1998, STAR solicited Waters for the second time, and again offered to assist Waters in obtaining a tax refund, this time, however, in return for forty (40%) percent of any tax recovered. This letter, like the last, was a one page purported contract for Waters to execute and return. Waters never executed the contract. With this letter, however, STAR also submitted four pages consisting of (1) a tax calculation sheet, which was substantially similar to the Delaware Franchise Tax instructions form provided by the State of Delaware, free of charge to taxpayers; (2) a one page reference copied from a publication of Commerce Clearing House, readily available to tax practitioners; (3) a “Facsimile Transmission Cover Sheet” that informed Waters that the tax savings could be realized using the Assumed Par Value Method and parent assets only; and (4) a Confidentiality Agreement. STAR further requested certain tax information so that it could prepare a draft tax return.

Waters never provided any information to STAR, and STAR never prepared a draft tax return. Waters subsequently filed for, and obtained, a tax refund in the amount of $173,800. Thereafter, despite being unable to identify the amount of time spent, or the hourly rate of the individuals who performed the alleged “services” to Waters, STAR made a written claim seeking forty (40%) percent or $69,520 of the refund. Waters has refused to pay STAR anything. This action followed,

Waters argues that the uncontested facts, stated above, clearly demonstrate that there was never a contract, written or oral, and that STAR never performed services for which it deserves payment. In the alternative, Waters contends that even if there was an oral contract, the Statute of Frauds bars its enforcement.

DISCUSSION

I. Standard of Review

This court grants summary judgment where there are no genuine issues of material fact, and where the summary judgment record entitles the moving parfy to judgment as a matter of law. Cassesso v. Comm’r of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). Its role is to “pierce the boilerplate of the pleadings and assay the parties’ proof in an effort to determine whether trial is actually required.” Harris v. Harvard Pilgrim Health Care, Inc., 20 F.Sup.2d 143, 146-47 (D.Mass. 1998) (Young, J.), citing McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir. 1995).

To succeed in a motion for summary judgment, it is now well settled that the moving party must demonstrate the absence of evidence to support the non-moving party’s position. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). This maybe done by showing, as here, noncompliance with the Statute of Frauds. See McMillian v. Weinberg, Civil Action No. 98-3568, at *2 (Mass. Super. Ct. Aug. 17, 1999); Kusmi v. Nastasi, Civil Action No. 93-2517, 4 Mass. L. Rptr. 49, 50 (Norfolk Super. Ct. Aug. 28, 1995).

n. Merits of Waters’ Motion for Summary Judgment

A. Breach of Contract — Count One

Waters argues that even if there was an oral contract, as asserted by STAR, its enforcement is barred by the statute of frauds. The controlling statute, G.L.c. 259, §7 (inserted by St. 1984, c. 321) provides in relevant part that,

An agreement to pay compensation for service as a broker or finder or for service rendered in negotiating a loan or in negotiating the purchase, sale or exchange of a business . . . shall be void and unenforceable unless such agreement is in writing, signed by the party to be charged therewith, or by some other person authorized . . . The provisions of this section shall apply to a contract implied in fact or in law to pay reasonable compensation.

(Emphasis supplied.) The introduction of this so-called “special business brokerage Statute of Frauds” manifested a legislative purpose to discourage claims, as here, “for commissions based on conversation which persons heard differently or remembered differently.” See Bay Colony Marketing Co., Inc. v. Fruit Salad, Inc., 41 Mass.App.Ct. 662, 665 n. 3, rev. denied, 424 Mass. 1101 (1996).

STAR admits that any contract was oral. It contends, however, that G.L.c. 259, §7 does not apply to its relationship with Waters, and thus a writing is not required. Specifically, STAR argues that the legislative history reveals that §7 was intended to apply only to “business brokers” and to “brokered deals,” and not (to use its words) to “finders" such as itself who “simply identify valuable information.”

“(I]n construing a statute, this court must give its words their plain and ordinary meaning according to the approved usage of language. Case of Benson, 47 Mass.App.Ct. 756, 758 (1999), quoting from Johnson’s [562]*562Case, 318 Mass. 741, 747 (1945). ’’Each provision of the statute is to be given some meaning, and must be construed so as to render the legislation effective, consonant with reason and common sense." Bay Colony, supra at 664-65. The court will not interpret the statute so as to render it or any portion of it meaningless. Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985). Further, where a statute contains the word “or,” it is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise. Bay Colony, supra at 665.

Here, the disjunctive “or” between “brokers” and “finders” suggests that the legislature considered each category of services separately. As in Bay Colony,

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Related

McIntosh v. Antonino
71 F.3d 29 (First Circuit, 1995)
Bonin v. Chestnut Hill Towers Realty Co.
436 N.E.2d 970 (Massachusetts Appeals Court, 1982)
Community National Bank v. Dawes
340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Kourouvacilis v. General Motors Corp.
575 N.E.2d 734 (Massachusetts Supreme Judicial Court, 1991)
Adamowicz v. Town of Ipswich
481 N.E.2d 1368 (Massachusetts Supreme Judicial Court, 1985)
Cassesso v. Commissioner of Correction
456 N.E.2d 1123 (Massachusetts Supreme Judicial Court, 1983)
Johnson's Case
64 N.E.2d 94 (Massachusetts Supreme Judicial Court, 1945)
Bay Colony Marketing Co. v. Fruit Salad, Inc.
672 N.E.2d 987 (Massachusetts Appeals Court, 1996)
Dasha v. Adelman
699 N.E.2d 20 (Massachusetts Appeals Court, 1998)
Benson's Case
716 N.E.2d 153 (Massachusetts Appeals Court, 1999)
Stavaridis v. Dynamic Machine Works, Inc.
2 Mass. L. Rptr. 446 (Massachusetts Superior Court, 1994)
Kusmin v. Nastasi
4 Mass. L. Rptr. 49 (Massachusetts Superior Court, 1995)
Cox v. Thornton Associates, Inc.
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Bluebook (online)
11 Mass. L. Rptr. 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-tax-auditing-research-inc-v-waters-corp-masssuperct-2000.