Townsends, Inc. v. Beaupre

716 N.E.2d 160, 47 Mass. App. Ct. 747, 1999 Mass. App. LEXIS 1062
CourtMassachusetts Appeals Court
DecidedSeptember 17, 1999
DocketNo. 96-P-1837
StatusPublished
Cited by30 cases

This text of 716 N.E.2d 160 (Townsends, Inc. v. Beaupre) 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
Townsends, Inc. v. Beaupre, 716 N.E.2d 160, 47 Mass. App. Ct. 747, 1999 Mass. App. LEXIS 1062 (Mass. Ct. App. 1999).

Opinion

Smith, J.

Townsends, Inc. (Townsends), brought an action in the Superior Court against Isaac Karchakian (Karchakian), Century Packing Co., Inc. (Century Packing), and Kennebunk Farms, Inc. (Kennebunk Farms).3 Townsends’s complaint alleged separate counts of breach of contract, misrepresentation, and violations of G. L. c. 93A, § 11. After a jury-waived trial the judge found against Century Packing only on the misrepresentation count, and in favor of Karchakian on all counts. [748]*748Townsends has appealed the entry of judgment in favor of Karchakian on the misrepresentation and c. 93A claims.4 *Karchakian died after the trial, and the judge allowed the executrix of his estate, Linda Beaupre, to substitute for him.5

The judge’s findings of fact are not challenged by Townsends.6 They are, in a summary form, as follows. Townsends, a Delaware corporation, is a large poultry producer. Karchakian was the president, treasurer, and sole shareholder of Century Packing which, prior to 1992, distributed wholesale beef, pork, lamb, and veal to retail businesses in the greater Boston area.

Century Packing rented the building in which it operated its business from the I & R Realty Trust. The Isaac Karchakian Estate Planning Trust of 1974 (1974 Trust) was the beneficiary of the I & R Realty Trust. Karchakian was the sole trustee and beneficiary of the 1974 Trust.

During the summer of 1992, Century Packing phased, out its lamb and veal divisions and purchased a poultry supplier, Quarex of New England (Quarex). Prior to its purchase, Quarex had a credit arrangement with Townsends. Hoping to continue that relationship, Century Packing submitted a credit application and a financial statement to David Burton, Townsends’s assistant treasurer. USTrust, Century Packing’s bank, was among the references provided to Townsends. Karchakian signed the application.

Satisfied with Century Packing’s credit profile, Townsends extended $400,000 in credit to the company in September, 1992. Of that amount, $200,000 was secured by a letter of credit issued by USTrust and $200,000 was unsecured.

In July, 1993, Century Packing fell behind in its payments to Townsends. At that point, Burton arranged a meeting with Karchakian to discuss the problem.

On August 3, 1993, Burton met with Karchakian and two other employees of Century Packing. They discussed Century Packing’s finances. Karchakian stated that Century Packing was in good financial condition, but its cash flow was slow and business could have been better. After some discussion concem[749]*749ing the performances of Century Packing’s different divisions, Burton requested an updated financial statement, which Karchakian agreed to send.

Several weeks after the August 3 meeting, Burton received a financial statement for the thirty-five-week period ending July 2, 1993. The statement had been prepared by Harvey Gershlak, Century Packing’s accountant. Attached to it was a cover letter signed by Gershlak which stated, among other things, that the financial statement presented information that was the representation of management, that he had not audited or reviewed the accompanying statement, and that he did not express any opinion or any other form of assurance with regard to the contents of the statement. Gershlak sent the financial statement to Karchakian for his approval. Karchakian was the only person who compiled and maintained the financial information for each Century Packing division and, therefore, only Karchakian knew the overall financial condition of Century Packing. Karchakian approved the statement and had it sent to Burton. Critical to our decision in this case is the absence of any finding by the judge that Gershlak’s letter or the financial statement accompanying the letter was prepared and presented in accordance with generally accepted accounting principles.

The financial statement carried as assets a number of accounts receivable of doubtful collectability. About three percent of the total accounts receivable carried as assets were (1) in excess of thirty months old, (2) related to companies that were in bankruptcy, or (3) related to companies that were no longer in business. Another seven percent of those listed were more than thirty-five days old.

The financial statement forwarded to Townsends did not mention that on September 14, 1992, Century Packing guaranteed a loan from USTrust to the I & R Realty Trust. It also did not disclose that Century Packing was paying rent to the I & R Realty Trust.

On August 11 (one week after the meeting with Burton and before the financial statement was sent), Michael McGinn, the vice president of USTrust who was in charge of the Century Packing account, met with Karchakian. Because of recent over advances in its borrowing from USTrust, McGinn had questions regarding Century Packing’s financial condition.

Karchakian gave McGinn substantially the same answers he had given Burton. McGinn asked Karchakian to give Century [750]*750Packing $1,000,000 in capital to “work down Century Packing’s over advances with USTrust.” Karchakian was unable to raise the capital.

On September 15, 1993, USTrust restructured Century Packing’s loan, increasing its credit ceiling from $4,000,000 to $7,500,000. The document memorializing the restructuring also showed that Century Packing was paying Karchakian an annual salary of $400,000. Those facts were not disclosed to Townsends.

Upon reviewing the financial statement Townsends had received in August, 1993, Burton noticed a decrease of $500,000 in equity as compared to 1992. He also noticed a large increase in Century Packing’s indebtedness to USTrust. Burton then asked Century Packing to supply an additional letter of credit for $100,000. Karchakian refused. As a result, in early September, 1993, Burton instructed Townsends’s sales department to limit Century Packing’s daily purchases. Townsends’s goal was to limit its unsecured credit to $100,000.

Faced with continuing financial deterioration, Century Packing failed to make payments on poultry shipped by Townsends between September 29, 1993, and October 19, 1993. As a result, on October 22, 1993, Townsends stopped all shipments to Century Packing. On November 4, 1993, Townsends exercised its $200,000 letter of credit with USTrust, but there remained an unpaid balance of $157,000 owed to Townsends by Century Packing. In January, 1994, Century Packing was forced into bankruptcy.

The judge identified four false representations in the financial statement sent to Townsends. The first concerned the failure to disclose that Century Packing paid rent to the I & R Realty Trust, of which the 1974 Trust was the sole beneficiary. The judge held that the payment of the rent was a related party transaction which, under sound accounting principles, should have been disclosed. The second misrepresentation was a failure to disclose that Century Packing had guaranteed a loan from USTrust to the I & R Realty Trust. The judge ruled that the guaranty was a contingent liability, and sound accounting principles required that the guaranty be disclosed on the financial statement. The third misrepresentation as the judge saw it arose out of the financial statement disclosure that Century Packing owed money to USTrust; that disclosure created an ongoing duty, according to the judge, to inform [751]

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Bluebook (online)
716 N.E.2d 160, 47 Mass. App. Ct. 747, 1999 Mass. App. LEXIS 1062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsends-inc-v-beaupre-massappct-1999.