Turnpike Motors, Inc. v. Newbury Group, Inc.

596 N.E.2d 989, 413 Mass. 119

• Court: Massachusetts Supreme Judicial Court
• Decided: July 16, 1992
• Status: Published

Opinions

Nolan, J.

The sellers commenced this action in May, 1984, seeking a declaratory judgment that the defendant broker was not entitled to any commissions on the sales of the assets of two automobile dealerships, which included interests in real estate and both tangible and intangible personal property, because the broker was not a licensed real estate broker as required by G. L. c. 112, § 87RR (1990 ed.).³ The broker, seeking to recover commissions and damages under G. L. c. 93A, counterclaimed and contended that the sellers were estopped to use G. L. c. 112, § 87RR, to deny commissions to the broker. On appeal of summary judgment in favor of the sellers and against the broker on its counterclaim, this court vacated that decision and remanded the case to the Superior Court. Turnpike Motors, Inc. v. Newbury Group, Inc., 403 Mass. 291, 297 (1988) (Turnpike Motors I). In Turnpike Motors I, a majority of this court held that: (1) while an unlicensed broker is not entitled to collect a commission on the sale of real estate under G. L. c. 112, § 87RR, that statute does not bar the collection of a commission on the sale of personal property as part of the same transaction; and (2) G. L. c. 112, § 87RR, will not bar full recovery of a commission to an unlicensed broker if that broker reasonably relied to its detriment on the sellers’ representations that the sale was a sale of corporate stock.

On remand, the jury, in answer to special questions, found that the sellers were estopped to raise G. L. c. 112, § 87RR, as a bar to the broker’s claim for commissions, and awarded damages to the broker in the amount of $343,000. The sellers then filed a motion for judgment notwithstanding the verdiet or, alternatively, for a new trial. The trial judge granted the motion in part, entering judgment for the broker in the amount of $69,479.15, which reflected commissions on only the tangible personal property interests. The judge then ruled that, in the event that an appellate court reversed his decision, the sellers would be entitled to a new trial. The judge also dismissed the broker’s counterclaim under G. L. c. 93A. We granted the broker’s application for direct appellate review.

On appeal, the broker contends that it was error for the judge to: (1) allow the sellers’ motion for judgment notwithstanding the verdict; (2) grant a new trial conditionally; and (3) deny the broker any recovery under c. 93A.⁴ We agree with the broker that the judge erred in granting the sellers’ motion for judgment notwithstanding the verdict or, alternatively, a new trial, but we affirm the judge’s dismissal of the broker’s c. 93A counterclaim. We therefore direct the Superior Court judge to enter judgment in accordance with the jury’s verdict.

1. The judgment notwithstanding the verdict. In reviewing a judge’s allowance of a motion for judgment notwithstanding the verdict, we determine whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [broker].” Dobos v. Driscoll, 404 Mass. 634, 656, cert, denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989), quoting Poirier v. Plymouth, 374 Mass. 206, 212 (1978). The judge concluded that judgment notwithstanding the verdict was warranted because the broker failed to present evidence sufficient to warrant an estoppel. Specifically, the judge ruled that the evidence did not warrant a finding of reasonable reliance by the broker, and that the broker did not present adequate evidence of two of the four factual elements that we considered in Turnpike Motors I, supra at 295-296.⁵

In Turnpike Motors /, supra at 296, we discussed four facts alleged in the broker’s pleadings, and we stated that, if these facts were true, the sellers would be estopped to deny the broker full commissions. Both the judge and the sellers, as well as the dissent in this appeal, have taken that discussion to mean that Turnpike Motors I holds that the sellers can only be estopped to deny the broker full commissions if the broker is able to prove that these four specific facts are true.⁶ Our conclusion in Turnpike Motors I, however, that certain of the facts alleged by the broker, if true, would lead to an estoppel, does not prevent the broker from making its case based on other facts alleged within the pleadings, nor does it necessarily require that proof of each of these specific facts is a threshold step that the broker must climb in order to prove its case.

“It was said in Greenwood v. Martins Bank, Ltd. [1933] A.C. 51, 57: ‘The essential factors giving rise to an estoppel are ... (1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made. (2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3.) Detriment to such person as a consequence of the act or omission.’ ” Cleaveland v. Malden Sav. Bank, 291 Mass. 295, 297-298 (1935). These essential factors are present in this case. As the judge found, there was adequate evidence presented by the broker at trial to establish that the defendant David Hackett informed the sellers’ representative, the plaintiff Eugene F. Looney, that Hackett was not a licensed real estate broker, and that Looney told Hackett that a license would not be necessary because the transaction would be structured as a sale of stock of a corporation rather than real estate. The agreements signed between the broker and the sellers reflected Looney’s representation that the potential sales would involve corporations whose assets would include real estate.⁷ The jury reasonably could have inferred from Looney’s testimony that he did not intend to pay the agreed-upon commissions when he signed the agreements with the broker.⁸ Following the signing of those agreements, the broker sought out and procured buyers for the sellers’ businesses, but the sellers have refused to compensate the broker for these services in accordance with their agreements with the broker. All of these factors would support the jury’s conclusion that Looney’s representations to the broker induced the broker to procure buyers for the sellers, and that the broker suffered detriment from its uncompensated, but successful, efforts on behalf of the sellers.⁹

It is also necessary, however, that the reliance of the party seeking the benefit of estoppel must have been reasonable. See O’Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986), and cases cited. The jury could reasonably have inferred from the evidence that the broker’s reliance was reasonable. Looney’s representations induced Hackett to undertake efforts on behalf of the sellers. The formal agreements between the broker and the sellers supported those representations. Hackett, who had been in business only a short time and had little education beyond high school, dealt directly with both Looney, a sophisticated businessman, and Looney’s attorney from whom, it was reasonable for Hackett to assume, the sellers sought advice.¹⁰ All the sellers, as well as their attorney, consulted with the broker in the preparation of the agreements. The asking prices for the automobile dealerships included the amounts necessary to pay the broker’s commissions. Several agreements between the sellers and buyers of the businesses, which, according to Looney’s testimony, were signed after he became aware of the broker’s lack of a license, explicitly referred to the sellers’ obligation to pay commissions to the broker.¹¹ In these circumstances, the broker’s reliance was reasonable and the jury were warranted in concluding that the sellers should be estopped to raise the issue of the broker’s lack of a real estate license, and we reverse the judge’s grant of the sellers’ motion for judgment notwithstanding the verdict.¹²

2. The motion for a new trial. The grant or denial of a motion for “a new trial on the ground that the verdict is against the weight of the evidence rests in the discretion of the judge.” Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert, denied, 493 U.S. 894 (1989), quoting Bergdoll v. Suprynowicz, 359 Mass. 173, 175 (1971). The judge, however, “should not decide the case as if sitting without a jury; rather, the judge should only set aside the verdict if satisfied that the jury ‘failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.’ ” Robertson, supra, quoting Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948). Moreover, a judge should exercise this discretion only when the verdict “is so greatly against the weight of the evidence as to induce in his mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice.” Scannell v. Boston Elevated Ry., 208 Mass. 513, 514 (1911). The grant or denial of a new trial, however, will only be disturbed if the judge has abused his discretion. Robertson v. Gaston Snow & Ely Bartlett, supra at 520-521.

In the same memorandum granting the sellers’ motion for judgment notwithstanding the verdict, the judge ruled as follows: “Assuming that a Reviewing Court rules that this Justice has decided the Rule 50(b) motion improperly, this Justice pursuant to the provisions of Rule 50(c) rules that on the issue of estoppel the verdict is against the weight of the evidence and conditionally allows the motion for new trial pursuant to the provisions of Rules 59 and 50(c).” Rule 50(c) does permit the conditional ruling on a motion for a new trial, as the judge made here, but the same rule requires the judge to “specify the grounds for granting or denying the motion for the new trial.” Mass. R. Civ. P. 50 (c), 365 Mass. 814 (1974). The judge in this case, however, failed to specify any grounds for his conditional ruling beyond his brief statement that the verdict was against the weight of the evidence.

We have held that the requirement that a litigant state specific grounds in support of a motion for a directed verdict is important in order to allow the judge knowingly to rule on the question before him, and to allow the opposing party an opportunity to rectify any deficiencies in its case. See Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 34-35 (1991), S.C., 412 Mass. 612 (1992). Similarly, the requirement that a judge specify the grounds for a conditional ruling on a motion for a new trial is important in order to allow a reviewing court knowingly to rule on the question before it, and to allow the opposing party an opportunity to rectify any deficiencies in its case before retrial. See Robertson v. Gaston Snow & Ely Bartlett, supra at 521 n.3 (judge’s express finding indicates he understood and applied correct legal standard); Powell v. Lititz Mut. Ins. Co., 419 F.2d 62, 65 (5th Cir. 1969) (“Our review is greatly hampered by the fact that the court below . . . did not specify the grounds for [conditionally] granting the motion for a new trial”). While the judge wrote extensively on the sufficiency of the evidence to warrant the jury’s verdict, we have already concluded that the judge applied an incorrect legal standard. The problem is • that, outside of the judge’s inappropriate conclusions concerning the sufficiency of the evidence, we have no knowledge of what else may have caused the judge to conclude that the jury failed to exercise “honest and reasonable judgment in accordance with the controlling principles of law.”¹³ Robertson v. Gaston Snow & Ely Bartlett, supra at 520. To the extent that the judge’s ruling on the motion for a new trial rests on the same inappropriate legal standards, his ruling is insupportable.¹⁴

Moreover, the judge himself later raised serious questions about his motivation for the conditional grant of the motion for a new trial. In a hearing on the sellers’ motion to dissolve postverdict security and to dismiss reach and apply claims, the judge stated as follows: “Part of my decision, I don’t know how to put it diplomatically, is a suggestion to [the Justices of this court] that they re-examine more closely what they did and, perhaps, they take umbrage at that. So, I mean, in terms of the probability of success . . . frankly, if I were a betting man standing apart from it, I would think that the opposing party is going to prevail.” This statement certainly does not reflect a strong belief that the jury’s verdict was not due to a careful consideration of the evidence. Instead of a strong belief that the jury’s verdict was the result of bias, misapprehension, or prejudice, this statement reflects the judge’s underlying difference of opinion with this court’s reasoning in Turnpike Motors I.

Given the judge’s inadequate specification of grounds for the conditional grant of a new trial, along with his stated intention that this court reexamine Turnpike Motors I, even while believing that the broker would prevail on appeal, it appears that the judge has not followed the applicable standards in his conditional grant of the sellers’ motion for a new trial. Moreover, we find nothing in the record or in the sellers’ arguments on appeal to convince us that the jury failed to exercise an honest and reasonable judgment in accordance

with controlling principles of law.¹⁵ See Ross v. Chesapeake & O. Ry., 421 F.2d 328, 330 (6th Cir. 1970) (review of record disclosed “no sound basis” for contingent grant of new trial where judge failed to specify grounds). For these reasons, we reverse the judge’s conditional grant of a new trial.

3. Unfair and deceptive practices under G. L. c. 93A. The broker challenges the judge’s conclusion that the sellers did not violate G. L. c. 93A, § 11, by refusing to pay the broker a finder’s fee. The broker argues that the judge erred as a matter of law in concluding that the sellers justifiably withheld payment of the fee to the broker on advice of their counsel. The broker asserts that, even if reliance on the advice of counsel were recognized as a defense to a c. 93A claim, no reasonable view of the facts in this case would support that defense. The broker’s c. 93A claim alleges that the sellers never intended to honor their obligation to pay the agreed brokerage commissions.¹⁶ We grant due regard to the judge’s findings of fact unless they prove to be clearly erroneous. Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). The judge found that the sellers refused to pay the broker commissions only after they were so directed by counsel on the ground that Hackett was an unlicensed broker and could not legally collect commissions for effectuating the sales. The judge further found that the sellers were unaware at the time ■they entered into the commission agreements that the broker did not have a license. We cannot say that these findings are clearly erroneous, because the testimony of the sellers, if believed, supports these conclusions. To be sure, the conflicting testimony presented in this case allowed for opposing conclusions as to whether the sellers engaged in unfair and deceptive practices of the unscrupulous type condemned by c. 93A, but where the evidence leads equally to competing conclusions, judges and juries are in the best positions to make the ultimate choice, especially given their superior opportunity to assess the credibility of the witnesses. Whitehall Co. v. Barletta, 404 Mass. 497, 503 (1989). Notwithstanding the fact that we might arrive at a different conclusion with respect to this issue, we cannot state that the judge was completely unjustified in viewing this matter as a legitimate dispute of rights and obligations.

To summarize, the order allowing the sellers’ motion for judgment notwithstanding the verdict is reversed as is the conditional allowance of the motion for a new trial. The broker’s c. 93A counterclaim was properly dismissed. Judgment is to be entered in accordance with the jury’s verdict.

So ordered.

3 Section 87RR provides that one who acts as a real estate broker “directly or indirectly, either temporarily or as an incident to any other transaction, or otherwise” must be licensed by the Commonwealth, and that no one shall recover in any action “for compensation for services as a broker performed within the commonwealth unless he was a duly licensed broker at the time such services were performed.”

4 Given our rulings on these issues, we need not consider the broker’s argument on appeal concerning the judge’s calculation of damages for commissions on the sale of the personal property interests.

5 “The broker’s claim is based on its assertion that, when it told a representative of the sellers that it was not a real estate broker, the sellers’ representative answered that the absence of a license would not be a problem. The broker claims that the sellers agreed that the sales of the two businesses could be in the form of sales of corporate stock. It further claims that it easily could have obtained, as it now has, a real estate broker’s license if it had known one would be needed and that the sellers restructured the sales as sales of assets rather than of stock for the purpose of defeating the broker’s commissions.” Turnpike Motors I, 403 Mass. 291, 295-296 (1988).

6 The judge did find that there was adequate evidence at trial concerning the first two of those four factual elements. Additionally, there was evidence from which the jury could have concluded that the other two factual elements were proved. There was evidence that Hackett’s friend and attorney, John Zizza, did easily become an officer of the broker and a licensed real estate broker. Contrary to the judge’s finding that there was “not a scintilla of evidence” that the sellers ever represented that they intended to transfer the real estate to their corporations prior to the sales of the automobile dealerships, the agreements between the broker and the sellers specifically state that the assets of the corporations “will include all the real estate” (emphasis added). The jury could have reasonably concluded from these agreements, therefore, that the sellers intended to transfer the real estate to the corporations in order that, at the time of the actual sale of the corporations, the sales could be of corporate stock and not real estate.

7 The agreement between the broker and the sellers for one of the businesses, Boston Mazda, included the following language: “Newbury Group, Inc. shall be owed one hundred and eighty thousand dollars ($180,000) even if the sales price of said corporation is sold for less than one million eight hundred thousand dollars. ... It is understood that the assets of the corporation will include all the real estate at 201 Cambridge street, the entire parts inventory, equipment, and office furnishings” (emphasis added). The agreement concerning the other business, Gene’s Foreign Car Service, Inc., contained similar language except for the amount of the commission and the location of the business.

8 Looney testified on direct and cross-examination that, although he signed the agreements with the broker, he never read these documents. Looney also testified as follows on cross-examination:

Counsel for the broker: “One of the reasons that you didn’t pay the commission due to my client is because you thought it was too high, right?”

The witness: “One of the reasons, yes.”

Counsel for the broker: “And how high was it? How much was it did you think that it was too high by?”

The witness: “About 6 percent.”

Counsel for the broker: “About 6 percent. Did you tell Mr. Hackett that?”

The witness: “No, sir.”

Counsel for the broker: “Did you tell him that on September 21st, 1983?”

Counsel for the broker: “But it was 6 percent too high on September 22nd, 1983 [when the parties signed the agreement], wasn’t it?”

The witness: “Maybe the 23 [rd] or 4th.”

Counsel for the broker: “You told him on the 23rd or 4th?”

The witness: “I didn’t tell him anything. I thought it was too high.”

Counsel for the broker: “Right after you signed this agreement you decided not to pay him 10 percent, didn’t you, sir?” 66

The witness: “Yes, sir.”

9 The dissent characterizes the issue in this case as whether there was evidence that, when the broker performed the services for which it seeks commissions, it could and would have been licensed as a real estate broker if it had not been misled into thinking that the sales were to be sales only of corporate stock. The dissent appears to argue that only an omission on the part of the broker, its failure to seek a real estate license, can give rise to estoppel. Estoppel, however, can arise from either an omission or an act by the person to whom the representation is made. See Cleaveland v. Malden Sav. Bank, 291 Mass. 295, 298 (1935) (essential factor in an estoppel is “an act or omission” resulting from the representation); Restatement (Second) of Contracts § 90 (1981) (promise which promisor should reasonably expect to induce “action or forbearance” can be binding); 1A A. Corbin, Contracts § 200, at 215 (1963) (“action or forbearance” in reliance on a promise can be sufficient reason for enforcing the promise). In this case, it is clear to a majority of this court that there were sufficient acts by the broker to justify an estoppel, and it is not necessary to consider the issue whether the broker could have or would have procured a license but for the sellers’ representations.

We note, however, that G. L. c. 112, § 87RR, explicitly required the broker to be licensed only “at the time . . . services were performed,” and not at the time the agreements were reached. See generally Annot., Procurement of Real-Estate Broker’s License Subsequent to Execution of Contract for Services as Entitling Broker to Compensation for Services, 80 A.L.R.3d 318 (1977). Hackett testified that he would not have taken steps to perform services for the sellers unless they signed the agreements, which reflected Looney’s representation that the sales would involve corporations and not real estate. Hackett’s friend and attorney, John Zizza, did easily become an officer of the broker and a licensed real estate broker, and he could just as easily obtain a license for the broker pursuant to G. L. c. 112, § 87UU (1990 ed.). Even though Hackett himself could not have easily become licensed, the broker could take any number of steps to adhere to the statute, such as hiring a licensed salesman. All of these steps could have been taken after the agreement was signed but before the broker performed any services for the sellers. While, as the dissent points out, there is no evidence that the broker would have undertaken such steps, such evidence is unnecessary because Looney’s representations made such speculation a moot point.

10 Looney testified that he generally consulted with his attorney every time he had a legal issue. Another plaintiff, John Ryan, who also signed the agreements with the broker, testified that he relied on the advice of counsel for any contract he signed.

11 A letter of intent concerning the Boston Mazda business, dated December 22, 1983, included the following language: “Sellers acknowledge that they have engaged David Hackett to act as broker in connection with finding a buyer for the assets that are the subject matter of this letter of intent. It is understood and agreed that the Sellers are solely responsible for all fees and commissions due and owing to said broker by reason of the transactions contemplated by this letter of intent.” A subsequent agreement concerning the Boston Mazda business, dated April 25, 1984, included the following clause: “Except for the engagement of David Hackett, whose fees and commissions, as agreed by and between the Seller and David Hackett, the Seller hereby agrees to pay . ...” A purchase and sale agreement concerning Gene’s Foreign Car Service, Inc., dated March 2, 1984, included the following clause: “Seller agrees, simultaneously with the Closing, to pay the full amount of the commission due [the broker] for its services in connection with this transaction.”

12 The dissent somehow finds it strange, in spite of our decision in Turnpike Motors I, that a majority of this court would, under equitable principles, affirm the jury’s award of damages to the broker who engaged in these activities without meeting the requirements of G. L. c. 112, § 87RR. We recognize, however, that “[i]t is in the main to accomplish the prevention of results contrary to good conscience and fair dealing that the doctrine of estoppel has been formulated and taken its place as a part of the law.” McLearn v. Hill, 276 Mass. 519, 524 (1931). While it is true that the broker in this case will receive commissions to which it is not entitled under statute, a different result would enable the sellers to reap a windfall because, according to Looney’s own testimony, the sale prices of the businesses took into account the commissions owed to the broker. In our opinion, to allow the sellers to reap such a windfall, after knowingly inducing the broker to undertake successful efforts on their behalf, is contrary to good conscience and fair dealing. As this court said in Town Planning & Eng’g Assocs. v. Amesbury Specialty Co., 369 Mass. 737, 747 (1976), quoting 6A A. Corbin, Contracts § 1512, at 713 (1962), “justice and sound policy do not always require the enforcement of licensing statutes by large forfeitures going not to the state but to repudiating defendants.” See Joffe v. Wilson, 381 Mass. 47, 55-56 (1980) (certified public accountant with agreement in violation of intermediation rule entitled to recover agreed-upon fees); Harness Tracks Sec., Inc. v. Bay State Raceway, Inc., 374 Mass. 362, 366-367 (1978) (unlicensed detective business entitled to recovery for services in accordance with terms of written contract); Restatement (Second) of Contracts § 181 (1981) (promise not necessarily unenforceable if one party fails to comply with licensing statute).

13 The dissent, apparently recognizing that no one can know exactly what caused the judge to conclude as he did, can only speculate on what the judge’s reasoning was. Post at 145-147. The dissenting Justice apparently believes that the deficiency on the part of the judge mandates an affirmance of his ruling. Such an approach, however, would deny parties a proper appellate review of new trial decisions. See Champeau v. Fruehauf Corp., 814 F.2d 1271, 1274 (8th Cir. 1987).

14 The sellers’ supplement to their motion for judgment notwithstanding the verdict, or, alternatively, a new trial, does not differentiate between the two remedies and only argues that the evidence of estoppel was legally insufficient. See Champeau v. Fruehauf Corp., supra at 1275 (where trial judge fails to state grounds for decision on new trial motion, decision should be affirmed only if it can be supported by a specific ground stated in motion).

15 The dissent chides the court for even considering the role of the jury in this matter. Post at 146. We believe, however, that, “[wjhile we must guard against usurping the trial court’s prerogative with respect to seriously erroneous jury verdicts, we must be equally diligent in protecting the jury’s function. Direction of a new trial on an issue determined by a jury without the articulation of a sufficient basis for such action effects ... ‘a denigration of the jury system and to the extent that new trials are granted the judge takes over, if he does not usurp, the prime function of the jury as the trier of facts.’ ” Crane v. Consolidated Rail Corp., 731 F.2d 1042, 1051 (2d Cir.), cert, denied, 469 U.S. 854 (1984), quoting Lind v. Schenley Indus., 278 F.2d 79, 90 (3d Cir.), cert, denied, 364 U.S. 835 (1960).

16 The broker also argues on appeal that the judge improperly concluded that “it would appear that the [broker’s] failure to appeal the adverse ruling on [the c. 93A] claim [as part of the first appeal to this court] has resulted in a waiver.” It is the broker’s position that it did not waive the c. 93A claim by omitting to discuss it specifically in the original appeal to this court. The broker claims that it did not have to appeal from the adverse decision respecting the c. 93A claim because the fate of that claim depended entirely on the central issue of the applicability of the § 87RR bar to recovery of commissions and thus was implicitly included in the appeal. In any event, the broker points out that, on remand, it amended the complaint to assert a c. 93A claim against the sellers, which was not objected to and was allowed by the judge. It is our opinion that the c. 93A claim, as raised by the amendment, was properly before the judge.