This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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, 881 N.E.2d 792 (2008).
The judgment is vacated, and a new judgment is to enter for nominal damages in the amount of one dollar.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment for the defendant entered after a Superior Court judge allowed the defendant's motion for a directed verdict at the close of the plaintiff's case.
The plaintiff, Janisch, retained the defendant, Mavros, to represent him in an action filed by a former employee who had been injured on the job. Janisch did not have workers' compensation insurance for the employee, and, thus, faced strict liability in the action. However, Janisch had a release, signed by the employee, releasing him from all liability for the injury in exchange for twenty-five hundred dollars (release). At the time Janisch hired Mavros, the employee had commenced suit against him, and Janisch had defaulted in the action. Janisch claimed that he instructed Mavros to file a summary judgment motion to dispose of the action quickly on the basis of the release.
In the defendant's motion to remove default, Mavros stated as grounds that:
" [T]he [d]efendant says that he did not serve or file an [a]nswer or other responsive pleading to the [c]omplaint filed by the [p]laintiff, due to the fact that the [d]efendant believed that the matter between he and the [p]laintiff had been resolved when the plaintiff of his own free will and without coercion, for consideration paid, released the defendant, in writing, from all claims arising out of the allegations set forth in the [p]laintiff's [c]omplaint. A copy of the release is attached to [d]efendant's [a]nswer filed herewith."
In the accompanying answer to the employee plaintiff's complaint, Janisch asserted as a sixth affirmative defense, " The [p]laintiff released the [d]efendant from all claims of injury and damages arising out of the event alleged in the plaintiff's complaint and is not entitled to recover from this [d]efendant. A copy of said [r]elease is attached hereto."
Mavros successfully obtained the employee's counsel's assent to the removal of the default, but in a stipulation promised " that if the [r]emoval of the [d]efault is allowed, the defendant will not use the agreement in an argument for res judicata in any future proceeding." In addition, counsel for the employee questioned the validity of the release, claiming that the employee had not signed it or that it had been signed under false pretenses. Mavros never sought any discovery in the matter and he never raised the issue of the release.
Eventually, Janisch discharged Mavros and hired new counsel, who filed a summary judgment motion raising the issue of the release. That motion was denied on the ground that whether the employee signed the release and the employee's state of mind at the time he signed the release were disputed facts. A jury returned a verdict for the employee, but the trial judge allowed Janisch's motion for judgment notwithstanding the verdict, on the ground that the release was valid on its face and the employee failed to meet his burden of demonstrating fraud. We affirmed that decision on appeal. Forbes v. Janisch, 73 Mass.App.Ct. 1128, 903 N.E.2d 605 (2009).
Janisch then commenced this action against Mavros alleging breach of contract and unjust enrichment. At the core of these claims was the allegation that Mavros had " verbally assured Janisch that he would use the signed release to obtain a quick resolution of the [employee's suit] and Janisch's involvement." The case proceeded to a jury trial, during which Janisch focused on Mavros's failure to file a motion for summary judgment based on the written release and his failure to take discovery. At the close of Janisch's case, the judge allowed Mavros's motion for a directed verdict. The judge noted that Janisch had acknowledged during his testimony that there was " a little bit" of evidence that the employee either did not sign the release or signed it under false pretenses. He concluded that Janisch's admission on this point " clearly and conclusively establishes that as a matter of law, Mavros would have been unable to prevail, even if he had filed a summary judgment motion in the 2002 matter and used the plaintiff's release as grounds for such motion." As a result, he ruled, " the plaintiff here cannot point to any breach having been committed by Mavros that would have resulted in a different outcome." With respect to damages, the judge ruled that:
" Janisch at trial suggests that he was economically harmed by Mavros's representation. It is to be noted that whether Mavros or another attorney represented Janisch, the case would have been tried based upon the denial of the summary judgment motion. Janisch's other claims of damages as testified to at trial and without any documentation or corroboration are so vague and remote as to preclude any recovery by him upon a failure of proof of damages, even if liability could be established in this case. And, as has been set out supra, there has been no evidence presented from which a jury could determine liability for breach of contract or unjust enrichment as claimed by the plaintiff in his complaint."
The posture of this case is unusual. Although the judge allowed Mavros's motion for directed verdict, he assumed arguendo in his findings and rulings that Janisch had established a breach of the contract. The judge then addressed the question of actual damages resulting from the breach and found none. We do not discern error in the judge's ruling on damages. Cf. Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306, 321, 791 N.E.2d 903 (2003). " The fundamental premise of 'contract damages is that the aggrieved party should be put in as good a position as if the other party had fully performed.' . . . Accordingly, [the plaintiff's] contract damages should not exceed the value of the benefit of which he was deprived." Selmark Assocs. v. Ehrlich, 467 Mass. 525, 543, 5 N.E.3d 923 (2014), quoting from Quinn Bros. v. Wecker, 414 Mass. 815, 817, 611 N.E.2d 234 (1993). We agree with the judge's determination that, because a motion filed by Mavros for summary judgment was unlikely to be successful in light of the employee's challenges to the release, the case was likely to proceed to trial anyhow; as a result, Janisch cannot prove that he was damaged by the breach. Indeed, a summary judgment motion that was eventually filed by successor counsel was denied.
We further find unpersuasive and speculative Janisch's claim that, had Mavros conducted discovery concerning the employee's signing of the release and his state of mind at the time, the summary judgment motion would have succeeded. See White Spot Constr. Corp. v.Jet Spray Cooler, Inc., 344 Mass. 632, 635, 183 N.E.2d 719 (1962), quoting from John Herrington & Sons Ltd. v.William Firth Co., 210 Mass. 8, 21-22, 95 N.E. 961 (1911) (with respect to breach of contract damages, " the complaining party must establish his claim upon a solid foundation in fact, and cannot recover when any essential element is left to conjecture, surmise or hypothesis" ); Phelan v.May Dept. Stores Co., 443 Mass. 52, 55, 819 N.E.2d 550 (2004), quoting from McEvoy Travel Bureau, Inc. v.Norton Co., 408 Mass. 704, 706 n.3, 563 N.E.2d 188 (1990) (any inference that could be drawn in favor of the nonmoving ...