Associated Home Care, Inc.
John F.X. O'Leary
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Associated Home Care, Inc. (Associated) commenced this contract/collection action seeking to recover on oral and written promises allegedly made by the defendant, John O'Leary, to pay for home services rendered to his mother. The alleged agreement concerns O'Leary's promise to pay for the value of the services provided by Associated to his mother, which totaled nearly $62,000. Following a jury-waived trial, a Superior Court judge entered judgment against O'Leary. We affirm.
Very briefly summarized, the dispute grows out of home services rendered by Associated to O'Leary's mother, who was elderly and in need of nursing care, starting in June, 2007, and continuing through and ending in February, 2008. Because O'Leary's mother's husband had recently died and funds from his estate were not immediately available due to probate proceedings, O'Leary's mother was unable to pay for a portion of the care she received. Accordingly, sometime in 2007, O'Leary allegedly promised, both orally and in writing, that he would take care of the bills personally. However, O'Leary did not pay the outstanding balance on his mother's account.
Associated filed a complaint against O'Leary, seeking to recover the cost of services rendered to his mother. Associated also filed a motion for real estate attachment. After O'Leary's motion to dismiss was denied, the case proceeded to trial. As noted, after a jury-waived trial, a Superior Court judge entered judgment against O'Leary.
After trial, the judge issued extensive written findings concerning the existence of an oral agreement between the parties. Specifically, the judge found as follows:
" The Court also finds that the defendant had one or more conversations with agents and employees of the plaintiff corporation and agreed and promised to personally pay for those services provided to the defendant's [m]other by the plaintiff. In addition, finding is made that the plaintiff relied upon these representations ultimately to its detriment and that the defendant is now liable to the plaintiff as a result of the same.
" The Court finds that on one or more occasions the defendant agreed to execute documents to the favor of the plaintiff securing his obligations to the plaintiff by collateralizing the same upon the defendant's parents' real estate. The defendant caused the plaintiff to expend time and professional resources to draft and deliver those documents to the defendant and that ultimately the defendant then withdrew his agreement to execute those documents without just cause and to the detriment of the plaintiff."
Having found the existence of a verbal agreement, the judge then carefully considered the application of the Statute of Frauds:
" Based upon findings made by the Court, ruling is now entered that the defendant's course of conduct in this matter, coupled with his written acknowledgement dated November 2, 2007, and the reliance assumed by the plaintiff in good faith and fostered by the defendant's repeated assurances all taken together remove this matter from the [S]tatute of [F]rauds and fix fully liability upon the defendant for payment of those services provided by the plaintiff to his mother at the defendant's request."
Judgment was thereafter entered against O'Leary in the sum of $61,756.81, with interest. This appeal followed.
2. Motion to dismiss under rule 12(b)(6).
First, O'Leary claims that the judge erred in denying his motion to dismiss because Associated failed to plead a claim which entitled it to relief. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). According to O'Leary, the plaintiff's complaint should have been dismissed because the complaint itself did not include an allegation, or reference to, a writing signed by O'Leary agreeing to pay his mother's debt, and the only document purporting to be that document, a 2007 letter from Associated to O'Leary, did not include a promise by O'Leary to pay his mother's debt. ...