Opinion
No. 15–P–293.
08-05-2016
David GAROFALO v. JOhn S. FELONI & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a judgment entered in Superior Court on a jury verdict for breach of contract in favor of the plaintiff, arguing that the judge erred by declining to give a requested jury instruction and disallowing a motion to amend his counterclaim. We affirm.
We note that required documents are missing from the record furnished on appeal. An appellant has the burden of providing adequate argument, including appropriate citation to legal authorities and the trial record. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 83 (1995) ; Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). “The fact that the appellant is a pro se litigant does not excuse him from complying with the basic requirements of appellate procedure.” Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014, 1014 (1998). Notwithstanding the deficiencies, in the exercise of our discretion we will address the appellant's claims.
The defendant claims that he was entitled to a jury instruction concerning the implied covenant of good faith and fair dealing. Setting aside the question whether the covenant applies to the promissory notes at issue, we discern no error in the judge's decision not to give the instruction. “We review objections to jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party.” Dos Santos v. Coleta, 465 Mass. 148, 153–154 (2013), quoting from Hopkins v. Medeiros, 48 Mass.App.Ct. 600, 611 (2000). It is not error for a judge to decline to give a requested instruction where no evidence has been introduced to support that instruction. See Drivas v. Barnett, 24 Mass.App.Ct. 750, 754–755 (1987).
Although the implied covenant of good faith and fair dealing applies to the contract, see Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991), the plaintiff correctly points out that the promissory notes are written as demand notes, to which the covenant would not apply, see Shawmut Bank, N.A. v. Miller, 415 Mass. 482, 484–485 (1993). The relationship of the contract to the notes, and whether the covenant applies to the notes (and if so, how it should be applied), is a question we need not, and do not reach.
Here, the defendant argued that the plaintiff breached the covenant by filing a complaint to recover the entire $150,000 he had paid the defendant, with no deduction for the value of any services performed by the defendant. However, nothing indicates that the complaint was filed in bad faith, and the fact that the plaintiff testified that he believed the defendant deserved some compensation does not preclude the plaintiff from exercising his legal right to seek full damages. The plaintiff's position that he did not receive the services he had contracted for was supported by the evidence presented at trial. No other evidence indicated that the plaintiff violated the covenant. Thus, the judge did not err in declining to give the instruction. In addition, the judge determined that the defendant was entitled to a quantum meruit instruction, which was given. That instruction allowed the jury to deduct the value of any services provided by the defendant from any amount awarded to the plaintiff, which appears to constitute, in substance, the remedy the defendant seeks. See Liss v. Studeny, 450 Mass. 473, 476–480 (2008) (comparing claim of breach of covenant of good faith and fair dealing with quantum meruit claim arising out of same facts). Ultimately, the instructions given were a fair reflection of the evidence that had been presented; there was no error.
The judge instructed that “you may consider if there were some services rendered by the defendant, and whether those services have any monetary value, and if so, whether the defendant has proved what the value of those, monetary value, is of those services. So, if you conclude that services were provided by the defendant under the contract and pursuant to that contract as agreed to by the parties, and that those services had some value under the contract and value to the plaintiff, and if you conclude that there is proof as to what the monetary value of those services is, then if you have awarded damages to the plaintiff, you may subtract the value of those services from the award that you would have given to the plaintiff.”
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The defendant also objects to the judge's refusal to allow him to amend his counterclaim to add a claim for breach of the implied covenant of good faith and fair dealing. “Although leave to amend a complaint shall be ‘freely given when justice so requires,’ ... the decision to grant such a motion lies within the broad discretion of the trial judge.” Harvard Law Sch. Coalition for Civil Rights v. President and Fellows of Harvard College, 413 Mass. 66, 72 (1992), quoting from Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). As discussed above, the judge correctly determined that the evidence presented by the defendant did not support his claim that the plaintiff had breached the covenant. Thus, the denial of the defendant's motion was not an abuse of the judge's discretion.
Finally, the plaintiff asks us to dismiss this appeal and award him costs in accordance with Mass.R.A.P. 26(a), as amended, 378 Mass. 925 (1979). Under Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), if we determine an appeal to be frivolous, we may award costs to the appellee. “An appeal is frivolous ‘[w]hen there can be no reasonable expectation of a reversal.’ “ Avery v. Steele, 414 Mass. 450, 455 (1993), quoting from Allen v. Batchelder, 17 Mass.App.Ct. 453, 458 (1984). “Unpersuasive arguments do not necessarily render an appeal frivolous.” Ibid. Instead, “[s]uch an award is reserved for cases in which the inappropriate action is egregious.” Plymouth & Brockton St. Ry. v. Leyland, 422 Mass. 526, 531–532 (1996). Here, the defendant's argument, although unpersuasive, was reasonable and turned on the unique facts of the case. Therefore, we decline to award costs to the plaintiff.
Judgment affirmed.