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D&N Corp. v. Intoccia

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 12, 2015
14-P-554 (Mass. App. Ct. Jun. 12, 2015)

Opinion

14-P-554

06-12-2015

D&N CORPORATION v. MICHAEL T. INTOCCIA & another.


NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, D&N Corporation (D&N), appeals from a judgment entered in favor of defendant M.J. Holding Corp. (M.J.), after a jury-waived trial. It also appeals the denial of a motion for postjudgment relief. In its suit, D&N sought damages stemming from an alleged breach of contract. We affirm.

Background. In 1972, brothers Nicholas Panagopoulos and Demetrios Panagopoulos purchased property at 2 Washington Street in Foxborough (property). Through the entity D&N Realty Trust, the brothers operated a restaurant and function facility at the property until 2000. In 2000, they entered into two ten-year leases, one leasing the property to Michael T. Intoccia as trustee for Washington Street 2 Realty Trust, and one leasing the property's kitchen equipment to Christina's Functions, Inc., and Funway Cafe, Inc. Both Christina's Functions, Inc., and Funway Cafe, Inc., were controlled by Intoccia, though the parties have stipulated that M.J. became a successor in interest to the two corporations on the equipment lease, which is currently at issue.

The equipment lease initially provided for yearly rent of $50,000 for years one through three, $55,000 for years four and five, and $59,400 for years six through ten. The lease provided that the lessee was responsible for maintenance of the equipment and could replace the equipment, so long as its value was not diminished, with the new equipment then becoming the property of the lessor. The lease indicated that the lessee agreed with the valuation of the equipment as listed in an addendum, but the attached addendum did not include any valuations. Around 2005, M.J. substantially renovated the restaurant portion of the premises and installed new equipment to replace the then thirty-four year old equipment present in the restaurant at a cost of about $1 million for the total renovation, of which $250,000 was for the new equipment.

As the end of the lease term approached, the parties attempted, without success, to reach an agreement on extending the lease. Despite the lack of an extension, M.J. held over beyond the lease term and continued to operate the restaurant and function facility until July, 2012, at which point M.J. vacated the premises. D&N then brought the instant action, alleging breach of contract.

As noted in the case caption, Michael T. Intoccia was named as a defendant in his capacity as formerly doing business as Funway Cafe, Inc., and Christina's Functions, Inc., and as trustee of Washington Street 2 Realty Trust. However, after D&N rested its case-in-chief at trial, Intoccia moved for a required finding, which the judge allowed.

After the parties' jury-waived trial, the judge characterized D&N's breach of contract claim as seeking two types of damages: (1) for failure to return the leased equipment to D&N at the conclusion of the lease in the same condition, and (2) for failure to pay the monthly rent for the equipment during the holdover period. The judge rejected both arguments and ordered the entry of judgment in favor of M.J. On appeal, D&N makes several arguments challenging the judge's failure to award damages.

Discussion. We begin by rejecting any argument that D&N continues to make on appeal that the returned equipment was not in the same condition as the equipment originally provided. In his findings of fact, the trial judge states that the value of the equipment on the restaurant side purchased by M.J. "was not less than the equipment it had replaced which D&N had purchased and installed in 1971." As for the equipment on the function facility side, it was essentially the same equipment and thus of the same value as what it had been at the beginning of the lease. These findings are not clearly erroneous.

D&N contends that the trial judge "erred by ruling that, in order to prevail on its breach of contract claim, the plaintiff was required to prove that, when the Equipment Lease expired, the parties entered into a new, enforceable contract governing the Lessee's use of the equipment." What D&N fails to address, however, is that while it has brought a claim alleging a breach of the equipment lease, the equipment lease has no provision regarding continued payments for continued use beyond the lease term.

As the judge observed, D&N did not assert a claim for quantum meruit independent of the lease terms, thereby foreclosing that option.

Under Massachusetts law, to prove a breach of contract claim, a plaintiff must show: (1) the existence of a valid and binding contract, (2) that the defendant breached the terms of the contract, and (3) that the plaintiff has suffered damages from the breach. See Rombola v. Cosindas, 351 Mass. 382, 384 (1966); Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1122 (1st Cir. 1995). Therefore, it was D&N's burden at trial to explain and establish why payments were due -- if not under the terms of the equipment lease, then by operation of law -- and what required rental amount M.J. failed to pay. Yet, as the trial judge explained, the evidence at trial "was silent as to what sums were agreed to and what sums were being paid after the lease's end. . . . Beyond Nicholas's testimony that he was not paid the specific sums referenced in the equipment lease, there was no testimony as to what he did receive, from whence it originated, and to what it was attributed. Further, in his testimony, he did concede that D&N never sent any bills or other inquiries to M.J. in connection with sums claimed to be due as monthly equipment rental." The trial judge correctly found that D&N failed to sustain its burden. Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250 (1940).

Judgment affirmed.

Order denying motion to amend findings, to alter or amend judgment, or for new trial, affirmed.

By the Court (Berry, Kafker & Cohen, JJ.),

The panelists are listed in order of seniority.
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Clerk Entered: June 12, 2015.


Summaries of

D&N Corp. v. Intoccia

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 12, 2015
14-P-554 (Mass. App. Ct. Jun. 12, 2015)
Case details for

D&N Corp. v. Intoccia

Case Details

Full title:D&N CORPORATION v. MICHAEL T. INTOCCIA & another.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jun 12, 2015

Citations

14-P-554 (Mass. App. Ct. Jun. 12, 2015)