PERRONE LEATHER APPAREL, INC. vs. MICHAEL VAN DER SLEESEN and another [Note 1]

HAND, P.J. This case arises out of a soured business relationship between appellants Vanson Leathers, Inc. (“Vanson”) and its principal, Michael van der Sleesen (“van der Sleesen”), on the one hand, and appellee Perrone Leather Apparel, Inc. (“Perrone”), on the other. In 2011, the parties, who were known to each other through prior business dealings, agreed that Vanson would fabricate a quantity of leather flight jackets using leather, logo zippers, and other materials supplied to it by Perrone. Perrone provided the materials, which were shipped by sea to a facility in El Salvador. Unfortunately, Perrone’s representative failed prior to shipping the leather to check it to ensure that the leather being shipped met the weight specifications for construction of the jackets that Perrone had ordered. The leather Perrone provided proved to be impractically heavy. Although, using that leather, Vanson fabricated and delivered thirty-four jackets to Perrone -- the number for which Perrone had provided the required zippers -- the overweight leather resulted in unsatisfactory jackets. No other jackets were constructed in connection with the parties’ agreement.

Perrone invoiced Vanson for the unused leather then located in El Salvador; Vanson did not pay the invoice. As alternatives to Vanson’s purchase of Perrone’s remaining overweight leather, the parties also discussed other ways in which the leather could be used by Vanson to offset the invoiced cost. Vanson never paid for the leather, and did not return it to Perrone.

Under the terms of a separate agreement reached before the contract between Perrone and Vanson for production of the flight jackets, Vanson and another Perrone entity had contracted for Vanson’s production of 200 leather flight helmets. The Perrone business entity involved in the flight helmet deal made payments toward the cost of the helmets, but did not tender the full amount of Vanson’s invoiced price for the completed flight helmets that Vanson shipped to it.

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In connection with its contract for construction of the flight jackets, Perrone sued both Vanson and van der Sleesen for breach of contract and for conversion of the unused leather provided by Perrone; additionally, Perrone sued Vanson for unjust enrichment on a quantum meruit theory. Van der Sleesen counterclaimed for abuse of process and violations of G.L. c. 93A, § 11; Vanson counterclaimed for the unpaid balance on the invoice for the flying helmets it produced for the other Perrone entity, and for breach of the flight jacket production contract.

The case was tried to a jury. At the close of the plaintiff’s evidence, the defendants moved for directed verdicts in their favor on several of the plaintiff’s claims. The court directed out Perrone’s claims against van der Sleesen on breach of contract (count 1), and denied the motion as to the unjust enrichment against Vanson (count 2) and conversion against both van der Sleesen and Vanson (count 3). At the close of all the evidence, the court allowed van der Sleesen’s motion for directed verdict on the remaining claim against him, and denied Vanson’s motion for directed verdict on Perrone’s conversion claim.

The judge’s instructions to the jury, prepared after a detailed charge conference with counsel, included instruction on contract rescission, unilateral mistake, and impossibility of performance. After deliberation, the jury found for Vanson on Perrone’s breach of contract and unjust enrichment claims against it, but awarded damages of $8,800.83 on Perrone’s conversion claim against Vanson. The jury found for Vanson on its counterclaim for breach of contract against Perrone on the flying helmet project, and awarded Vanson $711.15 on that counterclaim. The jury found that Perrone and Vanson had a contract for construction of the flight jackets, but found that Perrone did not breach that contract, and so found for Perrone on Vanson’s counterclaim for breach of contract. The judge found against van der Sleesen on his G.L. c. 93A counterclaim against Perrone. [Note 3]

Vanson appeals the trial judge’s denial of its motion for directed verdict on Perrone’s conversion claim; it also claims error as to the judge’s jury instructions. Van

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der Sleesen appeals the court’s direction of a verdict against him on his abuse of process claim, and from the court’s judgment against him on his claim under G.L. c. 93A.

1. Directed verdict on Perrone’s conversion claim against Vanson. The trial judge applies the same standard of review to a motion for directed verdict as it does to a motion for a judgment notwithstanding the verdict. See Tinory v. DePierre, 2015 Mass. App. Div. 23, 25 (2015).

“‘[T]he judge’s task, “taking into account all the evidence in its aspect most favorable to the plaintiff, [is] to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff.”’ Tosti v. Ayik, 394 Mass. 482, 494 (1985), quoting Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254 (1983). See Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438 (1992). The judge will consider whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn’ in favor of the nonmoving party. Poirier v. Plymouth, 374 Mass. 206, 212 (1978), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). To be reasonable, the inference ‘must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture.’ McEvoy Travel Bur., Inc. v. Norton Co., 408 Mass. 704, 706-707 n.3 (1990), quoting McNamara v. Honeyman, 406 Mass. 43, 45-46 (1989).”

Phelan v. May Dep’t Stores Co., 443 Mass. 52, 55 (2004).

“The decision to grant or deny a motion brought under either Rule 50 or Rule 59 of the Mass. R. Civ. P. ‘rests in the discretion of the trial judge, and an appellate court will not vacate such an order unless the judge has abused that discretion.’ [W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993).] That is, the trial judge has committed ‘“a clear error of judgment in weighing” the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives.’ L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).” Tinory, supra at 26.

In order to prevail on its conversion claim against Vanson, Perrone bore the burden of demonstrating that Vanson “intentionally or wrongfully exercised ownership of, or control or dominion over, personal property to which [it had] no right of possession at the time. Grand Pac. Fin. Corp. v. Brauer, 57 Mass. App. Ct. 407, 412 (2003).” Discover Realty Corp. v. David, 2003 Mass. App. Div. 172, 175 (2003). As Vanson’s possession of the leather was not, at the inception, wrongful, Perrone had the additional burden of demonstrating that it demanded the return of the property from Vanson and was refused. See Abington Nat’l Bank v. Ashwood Homes, Inc., 19 Mass. App. Ct. 503, 506-507 (1985), quoting Atlantic Fin. Corp. v. Galvam, 311 Mass. 49, 50-51 (1942) (“A demand is a necessary preliminary to an action for conversion where the defendant’s possession is not wrongful in its inception and demand and refusal are required to put him in the position of a wrongdoer . . . .”).

Vanson argues first that the court should have allowed the motion for directed verdict on the conversion claim against it on the ground that it did not have possession or control of the Perrone leather once that leather arrived at the El Salvador

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manufacturing facility Vanson had established for its use. According to Vanson, once Perrone’s leather was shipped to El Salvador for manufacture into jackets, it was in the hands of a separate corporate entity, Vanson Leathers Sociedad Anonima Capital Varida (“Vanson El Salvador”); as Vanson no longer had possession of the leather, Vanson argues, it could not then have converted it. This argument is not persuasive.

The plaintiff’s evidence included its witness’s testimony that Perrone’s representatives and van der Sleesen discussed sending Perrone’s leather down to “his location in El Salvador” for production of the flight jackets, and that the Perrone leather was delivered to van der Sleesen who shipped it to Vanson El Salvador. E-mails between Perrone’s representatives and van der Sleesen and other Vanson employees, including the manager of the Vanson El Salvador facility, amply support a factual finding that Vanson controlled Vanson El Salvador and maintained control over the jacket production in all of its phases. Perrone’s understanding was that Vanson El Salvador was “a facility that Mr. van der Sleesen owned and operated, that it was Vanson Leather.” Nothing in the plaintiff’s evidence suggested otherwise.

Even if Vanson did possess the leather, Vanson then argues Perrone failed to show that Vanson refused to return the leather in response to a demand by Perrone. As the judge noted, however, Perrone’s evidence permitted a finding that Perrone invoiced Vanson for the cost of the unused leather, less the cost of the leather used and the value of the work done on the sample jackets by Vanson, after it became clear that the leather was unsuitable for fabrication of the jackets. That invoice was a demand, and Vanson’s response -- counterproposals involving Vanson’s keeping the Perrone leather and crediting it against other products Vanson could make for Perrone -- was a refusal to return the property. Perrone declined Vanson’s alternative suggestions as unworkable. Vanson did not pay Perrone’s invoice for the leather. Viewing the evidence in the light most favorable to Perrone, as the nonmovant, we conclude that there was no error in denying Vanson’s motion for directed verdict on the conversion claim against it. [Note 4]

2. Jury instructions on affirmative defenses. On appeal, Vanson objects to the court’s instructing the jury on rescission, unilateral mistake, and impossibility, arguing both that in Perrone’s failing to plead those affirmative defenses, Perrone waived them, and that even if the defenses were not waived, the evidence did not support the court’s decision to instruct the jury on those defenses. As to the first argument, we do not find that Vanson properly preserved the objection at trial. Even if Vanson had properly preserved its objections to these instructions, however, we do not find any prejudice to Vanson in the court’s instruction on these defenses to Vanson’s claims.

It is true, as Vanson argues, that Perrone’s answer to Vanson’s counterclaim for breach of contract for the construction of flight jackets did not plead any of the contested theories as affirmative defenses, and that a failure to plead an affirmative defense acts as a waiver of the defense. Demoulas v. Demoulas, 428 Mass. 555, 575 n.16 (1998) (“Rule 8(c) of the Massachusetts Rules of Civil Procedure . . . states that parties must plead their affirmative defenses in their answer. . . . [G]enerally, a failure

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to plead an affirmative defense results in a waiver and exclusion of the defense from the case. See Anthony’s Pier Four, Inc. v. HBC Assoc., 411 Mass. 451, 471 (1991).”). The burden of raising an objection on this ground, however, fell on Vanson. Rule 51(b) of the Mass. R. Civ. P. provides, “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” The purpose behind the rule is to provide a mechanism for an objecting party to put the judge on notice not only of the fact of an objection, but also of the specific reason for the objection. See Brossi v. Fisher, 1999 Mass. App. Div. 99, 102 (“In the District Court, as in the Superior Court, a party who fails to comply in a timely manner with the Rule 51(b) requirements of objecting to the charge and stating the basis of such objection ‘forfeits his right to complain on appeal of the giving or omission of an instruction.’ Jarry v. Corsaro, 40 Mass. App. Ct. 601, 603 (1996). See also Flood v. Southland Corp., 416 Mass. 62, 66-67 (1993).”). Accordingly, “[a] general objection to a portion of a charge will not save appellate rights. See Huff v. Holyoke, 386 Mass. 582, 583 n.2 (1982). Nor will a blanket objection to a judge’s failure to give a party’s requested instructions. See Narkin v. Springfield, 5 Mass. App. Ct. 489, 491 (1977).” Flood, supra at 66.

Vanson does not claim to have made the requisite specific objection, but points to the judge’s statement, made in the context of discussion about instructing the jury on mistake and/or impossibility of performance, that “your rights are saved on the issue,” as having insulated it from the need to make a specific objection on Rule 51(b) grounds. We do not take such a broad view of the effect of the court’s “saving” Vanson’s rights in this case. In general, a judge may indicate an understanding of the particular grounds being raised in an objection to the giving or failure to give a jury instruction, and “save” a party’s rights without requiring further argument on the objection raised. See id. (“If a party requests an instruction, the judge does not give it, the party objects after the charge was given and explains the significance of the request, and the judge acknowledges an understanding of the issue but nevertheless declines to give the instruction, the requirements of rule 51 are unquestionably satisfied. See Collins v. Baron, 392 Mass. 565, 568 n.3 (1984).”). Presumably, however, the rights so preserved are only those relating to the objection actually made, and the grounds actually raised; were it otherwise, a general objection would save all possible appellate rights, and deny both the court and the opposing party of a meaningful opportunity to address the objecting party’s concerns. Here, Vanson’s “saved” rights made the necessary record for appeal of the instructions on the grounds argued at trial, but did not preserve its rights to appeal on the waiver argument, raised for the first time here.

We turn, then, to Vanson’s properly raised objections to the court’s instructions on rescission, impossibility of performance, and unilateral mistake. In addition to making the arguments discussed above, Vanson objects to the court’s instructing the jury on all three defenses on the ground that the evidence did not present an issue as to any of them.

“‘When reviewing jury instructions to which there has been an objection, we conduct a two-part test: “whether the instructions were legally erroneous, and (if so) whether that error was prejudicial.”’ Kelly v. Foxboro Realty

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Assocs., LLC, 454 Mass. 306, 310 (2009), quoting Masingill v. EMC Corp., 449 Mass. 532, 540 n.20 (2007). ‘[A]ppellate courts have traditionally accorded the trial judge considerable discretion framing jury instructions, both in determining the precise phraseology to be used, and in determining the appropriate degree of elaboration needed’ (citations omitted). Ratner v. Noble, 35 Mass. App. Ct. 137, 140 (1993).”

Cronis, Liston, Nangle & White, LLP v. 90 Exch. LLC, 2012 Mass. App. Div. 169, 171 (2012).

Lacking the advantages of a trial transcript and the time to parse through it, the trial judge erred on the side of caution, opting to instruct the jury on these particular defenses. We do not find that the evidence supported these instructions. As discussed below, however, we find no prejudice to any defendant in the fact that the judge instructed the jury as he did.

As to the instruction on rescission, we note that in Massachusetts, “rescission requires proof by clear and convincing evidence of a mutual mistake upon an essential element of the agreement. See Bucciero v. Drinkwater, 13 Mass. App. Ct. 551, 555 (1982); Samuels v. Brooks, 25 Mass. App. Ct. 421, 428 (1988); Shawmut-Canton LLC v. Great Spring Waters of Am., Inc., 62 Mass. App. Ct. 330, 338 (2004).” Browning-Ferris Indus. v. Casella Waste Mgt. of Mass., 79 Mass. App. Ct. 300, 313 (2011). See Cook v. Kelly, 352 Mass. 628, 632 (1967). A valid contract is not subject to rescission. See Morris v. Ramos, 1988 Mass. App. Div. 16, 17. As the jury found, there was a valid contract here, so rescission did not apply.

In light of the uncontroverted evidence that Perrone’s contract with Vanson for production of the flight jackets was foiled by Perrone’s failure to provide leather of an appropriate weight for the project, Perrone was not entitled to the defense of impossibility of performance of that contract. “Impossibility preventing and excusing performance must lie beyond the control of the excused party.” Winchester Gables, Inc. v. Host Marriott Corp., 70 Mass. App. Ct. 585, 596 n.10 (2007). See Frank Fitzgerald, Inc. v. Pacella Bros., Inc., 2 Mass. App. Ct. 240, 242 (1974).

Perrone’s responsibility for the failure of the contract also deprived it of the defense of unilateral mistake. The elements of unilateral mistake include, among others: (1) a mistake as to a “basic assumption” of the contract, (2) having a “material effect on the agreed exchange of performances,” and (3) the party seeking reformation does not bear the “risk of the mistake.” Restatement (Second) of Contracts § 153 (1979). See, e.g., First Safety Fund Nat’l Bank v. Friel, 23 Mass. App. Ct. 583, 588 (1987); Covich v. Chambers, 8 Mass. App. Ct. 740, 749 n.13 (1979). Here, Perrone’s oversight was the source of the mistake. Perrone was not entitled to the instruction on unilateral mistake.

We next turn to the question of whether the erroneous instructions resulted in any harm to Vanson. The burden is on the appellant to make a “plausible showing that the trier of fact might have reached a different result,” but for the contested instruction. Campbell v. Cape & Islands Healthcare Servs., 81 Mass. App. Ct. 252, 258 (2012), quoting DeJesus v. Yogel, 404 Mass. 44, 48-49 (1989). See Mass. R. Civ. P. 61. See also Dahms v. Cognex Corp., 455 Mass. 190, 207 (2009), citing Blackstone v. Cashman, 448 Mass. 255, 270 (2007) (error in jury instructions is grounds for setting aside verdict if result might have differed absent error); Global Investors Agent Corp. v. National

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Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 825 (2010). Vanson’s argument on this point is limited.

We consider the fact that the jury found that a contract existed between Perrone and Vanson for fabrication of the flight jackets, and the uncontroverted evidence that Perrone did not pay that invoice. We also consider, however, the evidence before the jury that, after Vanson had made thirty-four jackets under the contract, Vanson concluded that the leather Perrone had provided was unsuitable for completion of the full jacket order. And thus, Vanson identified “[its] balance” due to Perrone on the unused leather as $8,800.03. That figure was based on an assessment of the total value of the remaining uncut leather, $12,310.03, less the “delivered price” of the thirty-four jackets, $3,060.00, and patterns, $450.00.

The jury’s award to Perrone and against Vanson on the conversion claim was $8,800.03. This number is less than the full value that even Vanson assigned to the remaining uncut, unreturned leather that Perrone had provided, and is identical to the amount that Vanson suggested to Perrone that Vanson owed Perrone for the leather after its costs for jacket production and patterns were subtracted. While, obviously, we do not know whether the jury’s failure to find a breach of contract against Perrone on the flight jacket contract was the result of the jury’s determination that Vanson was compensated for its jacket-related losses by the jury’s forgiving those losses in assessing the damages Vanson owed Perrone on the conversion claim, the precision of the jury’s award on the conversion claim strongly suggests that it was. Under these circumstances, we do not find any plausible likelihood that the jury would have found differently than it did on the breach of contract count against Perrone for the flight jackets if the court had not instructed the jury on the contested affirmative defenses. See Dahms, supra; Campbell, supra. Accordingly, we find no grounds for reversal in the jury instructions about which Vanson complains.

3. Directed verdict on van der Sleesen’s claim for abuse of process. “The elements of an abuse of process claim are that: ‘(1) “process” was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage.’ [Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 407 (2002)], quoting Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975).” Jenkins v. Ellis, 2008 Mass. App. Div. 109, 110. In this case, there was no evidence that Perrone’s claims against van der Sleesen were motivated by any “ulterior or illegitimate purpose.” Gutierrez, supra. In the absence of any direct evidence of Perrone’s nefarious intent, van der Sleesen bases his argument on the fact that Perrone’s claims were, ultimately, legally unsustainable as evidenced by the directed verdicts on those claims. That showing is not enough, in our view, to survive a motion for directed verdict on the abuse of process claim.

“The elements of an abuse of process claim are ‘that “process” was used, for an ulterior or illegitimate purpose, resulting in damage.’ Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010) . . . . To sustain the claim, ‘the fact finder must find that process was used “to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.”’ Id., quoting Quaranto v. Silverman, 345 Mass. 423, 426 (1963). Filing a groundless claim is not an element of the tort, but it is relevant, because it may ‘tend[] to show that the process was used for an ulterior purpose.’ Fishman

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v. Brooks, 396 Mass. 643, 652 (1986). However, the ulterior purpose element is not satisfied merely by a showing that a person commenced litigation knowing it was groundless. Beecy v. Pucciarelli, 387 Mass. 589, 596 (1982).”

Psy-Ed Corp. v. Klein, 459 Mass. 697, 713 (2011). See Ladd v. Polidoro, 424 Mass. 196, 199-200 (1997) (“[T]he fact that an attachment was made in connection with a groundless claim does not alone constitute an abuse of process. There must also be proof of an ulterior motive.”).

For purposes of an abuse of process claim, a plaintiff acts with improper motive where the plaintiff acts “‘primarily for a purpose other than that of properly adjudicating’ the claim.” Sklar v. Beth Israel Deaconess Med. Ctr., 59 Mass. App. Ct. 550, 557 (2003), quoting G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 273 (1991). See Restatement (Second) of Torts § 674 (1977). Absent some evidence of ulterior purpose, abuse of process requires more than negligent or even wanton behavior. See Beecy, supra at 593-594; O’Connell v. Bank of Boston, 37 Mass. App. Ct. 416, 420 (1994).

Van der Sleesen’s abuse of process claim lacked evidence on a second essential element: “damage” to van der Sleesen resulting from Perrone’s claims against him. See Quaranto, supra at 427 (damage is essential element of abuse of process claim). While van der Sleesen testified that he “engaged” an attorney as a result of the claims against him, individually, there was no evidence that he incurred any costs for the defense of the claims against him, as distinguished from Perrone’s claims against Vanson; the same attorney represented both van der Sleesen and Vanson at the trial in which Perrone prevailed on at least some of its claims.

4. Van der Sleesen’s G.L. c. 93A claim. Van der Sleesen’s G.L. c. 93A claim, which the judge reserved to himself, was based on the same allegations that gave rise to his failed abuse of process claim. In briefing the G.L. c. 93A claim, van der Sleesen raised the fact that Perrone had not denied the allegation that the parties were engaged in trade or commerce; Perrone counterargued. Accordingly, in its memorandum of decision on the claim, the court addressed the trade or commerce issue, determining that the parties’ relationship did involve trade or commerce. Nothing in the decision, however, indicates that the judge failed to rule on the claim based on the failed abuse of process claim. The court’s ruling in favor of Perrone on the G.L. c. 93A claim, consistent with its earlier ruling on van der Sleesen’s abuse of process claim, was proper. We find no error. See Dennen v. TD Bank Gloucester, 2013 Mass. App. Div. 15, 17 n.6, citing Townsends, Inc. v. Beaupre, 47 Mass. App. Ct. 747, 755 (1999) (where claimant cannot prevail on underlying tort claim, claimant also cannot prevail on G.L. c. 93A claim based on failed tort claim).

Judgment affirmed.