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AA&D Masonry, LLC v. Franchi

Appeals Court of Massachusetts

July 15, 2015

AA& D Masonry, LLC
v.
Olga Franchi

Editorial Note:

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

The plaintiff, AA& D Masonry, LLC (AA& D), appeals from a Superior Court judgment dismissing its complaint and entering separate and final judgment for the defendant, Olga Franchi (Ms. Franchi), pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).[1] AA& D argues that the judge erred in allowing the defendant's motion to dismiss, in failing to allow AA& D to amend its complaint, and in entering separate and final judgment as to Ms. Franchi. We affirm.

Motion to dismiss.

" We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor." Harrington v. Costello, 467 Mass. 720, 724, 7 N.E.3d 449 (2014). " To survive a motion to dismiss, the factual allegations . . . must 'raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).'" Ibid., quoting from Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008).

The complaint alleges that Crowsnest is a Massachusetts corporation, and that Ms. Franchi was a " de facto principal in Crowsnest and the real director of its operations and source of capital." [2] It also alleges that Ms. Franchi, as a " partner" of Crowsnest, entered into a contract with AA& D, with the intention of not paying, to perform masonry work at property owned by " the defendants" -- Crowsnest, David Franchi, and Ms. Franchi (see note 1, supra ) -- located at 413-417 South Street, Marlborough (project). AA& D asserts that Ms. Franchi is jointly and severally liable for the damages suffered.

On the facts alleged, AA& D has failed to state a claim for which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). To begin, this record lacks specificity as to Ms. Franchi's involvement with the operation of Crowsnest, including whether or not she provided capital or any form of monetary support to the project; in fact, the evidence shows that David Franchi is the sole director and owner of the corporation. Also, there is no evidence that Ms. Franchi was in any way involved in the formation of the contract between Crowsnest and AA& D, or that Ms. Franchi exercised " 'some form of pervasive control' over the activities of the corporation." Kraft Power Corp. v. Merrill, 464 Mass. 145, 152, 981 N.E.2d 671 (2013), quoting from Scott v. NG U.S. 1, Inc., 450 Mass. 760, 767, 881 N.E.2d 1125 (2008). We therefore agree with the trial judge that " no facts have been pled in the complaint that would lend any support to a remedy of piercing the corporate veil to hold Ms. Franchi personally liable."

The broad allegations against Ms. Franchi are speculative at best, and fail to plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. at 636. Thus, AA& D's complaint, as to all counts relating to Ms. Franchi, was properly dismissed.

Amendment of the complaint.

AA& D also argues that the judge erred in failing to allow it to amend its complaint to provide additional information regarding Ms. Franchi. However, AA& D failed to make a formal request to do so; it made an " alternative" request in its opposition to Ms. Franchi's motion to dismiss, and off-handedly suggested an amendment of the complaint during the hearing on the motion. No formal motion was ever presented for exercise of the judge's discretion in considering whether justice required an amendment to the complaint.

AA& D was permitted, as a matter of law, at any time after the initial filing and prior to dismissal in May, 2013, to amend its complaint as to Ms. Franchi. See Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). Even after dismissal, AA& D could have sought leave of the court to amend. It failed to do either. AA& D's assertion that it made specific requests to the judge to amend the complaint falls short, as " [a] motion to amend must adequately describe the contemplated amendment in order for a court to determine the merits of the motion" ; this is generally accomplished by submitting a proposed amended complaint along with a motion seeking the amendment. Nett v. Bellucci, 437 Mass. 630, 645, 774 N.E.2d 130 (2002). As a result of such deficiency, the judge had nothing to consider.

Separate and final judgment.

Certification of a judgment under rule 54(b) is properly entered where " (1) an action involves multiple claims or multiple parties; (2) there has been a final adjudication as to at least one but fewer than all of the claims; (3) there is an express finding that there is no just reason for delaying an appeal until the remainder of the case is resolved; and (4) the entry of judgment is expressly directed." O. Ahlborg & Sons, Inc. v. Massachusetts Heavy Indus., Inc., 65 Mass.App.Ct. 385, 392, 840 N.E.2d 977 (2006). See Mass.R.Civ.P. 54(b). We conclude that these requirements have all been met here.

The trial judge was " well equipped . . . to assess the relationship between an adjudicated claim and any claims that remain[ed] pending, and to assess whether an adjudicated claim should be certified for appellate review under rule 54(b)." Trenz v.Family Dollar Stores of Mass., Inc., 73 Mass.App.Ct. 610, 615, 900 N.E.2d 97 (2009). Based on this record, the judge did not abuse his discretion in finding that " there is no just reason for delay in the entry ...


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