Opinion
No. 11–P–1434.
2012-11-14
Roger SAUVAGEAU & another v. DETROIT DIESEL CORPORATION & another.
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal, Roger and Helen Sauvageau (collectively, Sauvageau) challenge the following rulings by a Superior Court judge: the grant of Detroit Diesel Corporation's (Detroit Diesel) motion for summary judgment on Sauvageau's breach of a two-year express warranty claim and the denial of the motion to reconsider that ruling; the denial of Sauvageau's motion for judgment notwithstanding the verdict (JNOV) on the breach of the two-year express warranty claim and a breach of contract claim against Detroit Diesel; and the postverdict dismissal of Sauvageau's G.L. c. 93A claim against Detroit Diesel.
Codefendant Johnson & Towers, Inc. (Johnson & Towers), cross-appeals from the denial of its JNOV motion contesting its liability on Sauvageau's breach of contract claim. We affirm.
The judge reserved the c. 93A claim to himself.
Background. In November, 2002, Sauvageau purchased a forty-eight foot ocean yacht powered by two series sixty diesel engines manufactured by Detroit Diesel. The seller of the yacht, who was its first purchaser, took delivery of the yacht in July, 2001. In December, 2003, Sauvageau received a letter (modification bulletin) from Detroit Diesel. The modification bulletin stated that Detroit Diesel had found a potential defect with an engine component on certain engine models and that Detroit Diesel would replace the component on Sauvageau's engines free of charge. Sauvageau, as instructed by the modification bulletin, contacted an authorized distributor of Detroit Diesel, Johnson & Towers, to request an appointment to perform the repairs. The repairs were never performed and the component part on one of the engines malfunctioned in August, 2004, resulting in significant damage to that engine. Sauvageau spent $41,346 to repair and rebuild the engine. Sauvageau then brought claims for breach of contract, breach of warranty, and a G.L. c. 93A claim against Detroit Diesel, Johnson & Towers, and New England Detroit Diesel–Allison (NEDD–A),
a regional subsidiary of Detroit Diesel. As detailed below, the judge granted summary judgment, in part, in favor of Detroit Diesel, and trial proceeded on the remaining issues. The jury found that Johnson & Towers had entered into a repair contract with Sauvageau, breached the contract, and as a result, was liable to Sauvageau in the amount of $41,346 (the cost of repair).
Sauvageau's claims against NEDD–A, which were dismissed with prejudice, are not at issue on appeal.
Discussion. 1. The motion judge (who was also the trial judge) granted summary judgment in favor of Detroit Diesel on Sauvageau's claim for breach of the two-year express warranty. The judge dismissed this claim as time barred, stating: “clearly, any claim under the two year limited warranty is barred in that the engine failure in question occurred in August 2004, more than three years after the July 12, 2001 tender of delivery [to the original owner].” Sauvageau argues that the judge erred because the warranty was not conditioned on “failure of the engine” but rather on “any malfunction occurring during the warranty period resulting from defects in material or workmanship.” Sauvageau also argues that Detroit Diesel implicitly admitted that Sauvageau's engine was malfunctioning when it circulated the modification bulletin in early 2003. However, as the judge found, nothing in the summary judgment record suggested that Sauvageau's particular yacht was malfunctioning at the time that Detroit Diesel circulated the modification bulletin in early 2003. In fact, Sauvageau admitted that, as late as the spring of 2004, there was no direct evidence that the engine was malfunctioning. We thus concur with the judge's grant of summary judgment.
Sauvageau filed a motion to reconsider the grant of summary judgment on his two-year express warranty claim. The judge denied the motion, restating his reasoning for granting summary judgment. Because there is no evidence that circumstances changed in the time between the judge's summary judgment ruling and the filing of Sauvageau's motion to reconsider, we discern no error in the judge's denial of that motion. See Lawrence Sav. Bank v. Garabedian, 49 Mass.App.Ct. 157, 164 n. 18 (2000).
Sauvageau also filed a motion for JNOV, renewing his opposition to the judge's summary judgment dismissal of the two-year express warranty claim. As the judge ruled, Sauvageau is not entitled to JNOV on this claim because the jury did not return a verdict on this issue. See Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998).
2. Sauvageau also contests the judge's denial of his motion for JNOV with respect to a breach of contract claim against Detroit Diesel. Sauvageau has not met his high burden. See Hanover Ins. Co. v. Sutton, 46 Mass.App.Ct. 153, 166 (1999). The jury did not find Detroit Diesel liable. Sauvageau argues that since the jury provided inconsistent answers to the special verdict questions, the judge should have set aside the verdict and found in Sauvageau's favor.
However, as the judge determined, the jury could reasonably have found that while Detroit Diesel entered into a contract with Johnson & Towers, only Johnson & Towers breached the contract to repair Sauvageau's engine and thus, only Johnson & Towers should have been held liable.
Sauvageau contends that the jury's determination that Detroit Diesel entered into a contract through its agent, Johnson & Towers, with Sauvageau is inconsistent with their determination that Johnson & Towers breached a contract with Sauvageau, but that Detroit Diesel did not breach the contract.
3. Sauvageau brought a c. 93A claim alleging that Detroit Diesel had engaged in unfair and deceptive trade practices for failure to perform repairs arising under the two-year express warranty. After the jury had returned their verdict, the judge ruled that since he had dismissed the warranty claim prior to trial, it could not serve as the basis for a c. 93A claim.
A judge's determination of whether commercial conduct is unfair or deceptive under G.L. c. 93A is a mixed question of law and fact. Zabin v. Picciotto, 73 Mass.App.Ct. 141, 170 (2008). The judge agreed with the jury's finding that only Johnson & Towers, and not Detroit Diesel, was liable for breach of contract. Further, the judge correctly noted that when a plaintiff cannot prevail on the individual claims underlying a c. 93A claim—in this case, the warranty claim—he cannot prevail on the c. 93A claim. See Townsends, Inc. v. Beaupre, 47 Mass.App.Ct. 747, 755 (1999).
4. Johnson & Towers appeals the denial of its motion for JNOV on the breach of contract claim. The judge correctly found that there was sufficient evidence in the record to support the jury's verdict. Substantial evidence as to Johnson & Towers's liability was presented at trial. On appeal, Johnson & Towers largely reargues factual arguments presented below and has not shown why, as a matter of law, it was entitled to JNOV. See Finberg Mfg. Co. v. Carter, 16 Mass.App.Ct. 1013 (1983). We thus affirm the denial of the motion for JNOV.
As to any remaining arguments raised by the parties, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ “ Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
Order denying the Sauvageaus' motion for judgment notwithstanding the verdict affirmed.
Order denying Johnson & Towers, Inc.'s, motion for judgment notwithstanding the verdict affirmed.
Order denying motion to amend findings and judgment on c. 93A claim affirmed.