Peter T. KASSERIS v. DOYLE ENGINEERING, INC., & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Peter Kasseris, worked as an associate engineer for the defendants, William Doyle (William 3 ) and Doyle Engineering (collectively, Doyle), for three years. Kasseris claimed that he worked full time for Doyle during this period, but that he was compensated only for about twenty-five percent of the hours he worked. Kasseris accordingly sued Doyle seeking to be paid for his uncompensated time. The jury rejected Kasseris's Wage Act claim, finding that Doyle had paid “all wages due,” and also found that Kasseris and Doyle did not have a contract requiring Doyle to pay Kasseris for more hours than he actually had been paid. However, the jury also found Doyle liable for negligently misrepresenting that it would pay Kasseris “for his time worked,” and awarded Kasseris $44,000 in damages on that claim. The judge denied Doyle's motion for judgment notwithstanding the verdict or in the alternative to alter or amend the judgment. Doyle appeals, arguing (1) that the jury verdict was inconsistent, and (2) that the evidence was insufficient for the jury to find negligent misrepresentation. We affirm.
Discussion. 1. The inconsistent verdict issue. Doyle's inconsistent verdict argument fails because it was not preserved. Doyle argues that the jury's finding that Kasseris suffered economic damage from the negligent misrepresentation (the $44,000) is “wholly inconsistent” with the jury's finding, in connection with Kasseris's wage claim, that Doyle had paid all the wages Kasseris was due. Doyle accordingly argues that the damages must be reduced to zero. The fault in Doyle's argument, however, is that an inconsistent verdict challenge must be raised before the jury are discharged, to provide an opportunity for correction. See Tosti v. Ayik, 394 Mass. 482, 495 (1985). Doyle did not object to the verdict when it was rendered, so this challenge is waived.4
2. The negligent misrepresentation claim. Doyle also argues that there was insufficient evidence from which the jury could find negligent misrepresentation. Kasseris's negligent misrepresentation claim asserted that William Doyle had represented to Kasseris, several times during Kasseris's three years with the firm, that Doyle would pay Kasseris for all the time that he worked. Kasseris testified at length that he worked many more hours at Doyle than were actually compensated -- roughly forty hours per week, and sometimes more. Kasseris also testified that his time was spent not just on client work (which was compensated), but also on firm administrative matters, such as organizing projects and running firm technology. Kasseris was generally paid only for the fraction of his time that could be billed to clients.
As to the negligent misrepresentation count, the jury were instructed, without objection, that Kasseris needed to prove:
“1. The defendant, in the course of his business or in a transaction in which he had a financial interest, supplied false information for the guidance of others in their business transactions.
“2. The defendant failed to exercise reasonable care or competence in obtaining or communicating the information at issue. The defendant acted negligently if he made a statement about an important fact without using the amount of care a reasonable person would use in those circumstances to determine that what he said was true.
“3. The plaintiff reasonably relied on the defendant's statements.
“4. The plaintiff suffered financial loss caused by his reasonable reliance upon the information at issue.”
Importantly, earlier in the charge the jury were instructed that the claimed misrepresentation was “that defendants would pay plaintiff for his time worked.” There was no objection to this aspect of the instruction either.5
Doyle advances several arguments as to why the evidence was insufficient, including (1) that the asserted misrepresentation (or misrepresentations) was not shown to be untrue, (2) that the asserted misrepresentation that Doyle would “take care of” Kasseris was too indefinite to be enforced, (3) that the alleged misrepresentations were not actionable because they were not “facts,” but rather “promise[s] of future action,” (4) that there was no evidence that William's representations were false when made, and (5) that there was no evidence of negligence in connection with the misrepresentation. In reviewing the sufficiency of the evidence in a civil case, we ask whether, taking the evidence in the light most favorable to the plaintiff, any reasonable jury could find that the elements of the claim were met. Reid v. Boston, 95 Mass. App. Ct. 591, 594 (2019).
We conclude that the evidence was sufficient here. Doyle's second and third arguments can be taken together, as they are variants on the same theme -- namely, that Kasseris failed to show an actionable representation.6 However, the alleged representation presented to the jury in the judge's charge -- that Doyle “would pay [Kasseris] for his time worked” -- is a statement of fact. It is a statement of Doyle's future intention, as of the time it was made. The statement is concrete enough to form the basis for a claim, even though it is a promise as to a future event.7 See Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 474 (2009), citing Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 601 n.45 (2007). In addition, we think it significant that Kasseris testified that William Doyle's statement was repeated over time; each time the statement was made it gained in concreteness, because William had more knowledge that Kasseris had put in time that had already gone uncompensated. Furthermore, a jury could reasonably conclude, given the context, that William's statement that he would “take care of” Kasseris was the same promise -- that is, that Doyle would eventually pay Kasseris for the time he was working.
Doyle's arguments one and four -- that the evidence did not show that William's statements were false at the time they were made -- are also unavailing. Taken most favorably to Kasseris, the evidence showed that Doyle knew that Kasseris was working many hours for which Kasseris did not bill and for which he was not compensated, that William repeatedly told Kasseris over the course of years that he would pay Kasseris for that unbilled time, and that Doyle did not ever do so. The evidence also showed that William was aware that his firm was often in difficult financial circumstances -- he testified that he sometimes dipped into his own funds to pay the bills. A jury could reasonably infer, from these facts, that William's statements that he would eventually pay Kasseris for the hours worked were empty promises. William's state of mind or present intent can be inferred from circumstantial evidence. Kasseris was not obligated to provide direct evidence that Doyle did not intend to pay. See Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. 581, 587-588 (1996).
Doyle's final argument -- that there was no evidence William was negligent in making the promises -- fares no better. The question, as framed by the jury instruction, is whether William “failed to exercise reasonable care” in making the challenged representation. In light of the evidence discussed above, the jury could find that William's multiple assurances were made with knowledge that he had not been paying Kasseris, and also with knowledge of the company's difficult financial circumstances. This was a sufficient basis to find a lack of reasonable care.8 ,9
Order denying motion for judgment notwithstanding the verdict or in the alternative to alter or amend the judgment affirmed.
3. For the sake of clarity, we refer to William Doyle by his first name.
4. We note that Doyle's inconsistent verdict argument assumes that the jury's finding in favor of Doyle on the Wage Act claim was the “correct” finding, that the damages award was the incorrect finding, and accordingly that the damage award must be amended to zero. We are not necessarily convinced that the verdict is inconsistent, but if it were inconsistent, then Doyle's assumption is wrong. As the Supreme Court has explained, one cannot reason through what factual findings are correct where a verdict is inconsistent: “[t]he problem is that the same jury reached inconsistent results; once that is established principles [that] are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict -- are no longer useful.” United States v. Powell, 469 U.S. 57, 68 (1984).
5. The judge's charge set forth the claimed misrepresentation in the section on intentional misrepresentation. He then introduced the negligent misrepresentation count by saying that it was “similar to intentional misrepresentation except it alleges that defendants acted negligently instead of intentionally.” We read the charge as instructing that the same misrepresentation was claimed for both counts.
6. We note that these arguments were not explicitly made in Doyle's motion for directed verdict, and thus may not have been preserved. See Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986).
7. Kasseris's claim sounds more in promissory estoppel, see Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 28 n.9 (2006), citing Loranger Constr. Corp. v. E.F. Hauserman Co., 6 Mass. App. Ct. 152, 155, S.C., 376 Mass. 757 (1978), or quantum meruit, see Liss v. Studeny, 450 Mass. 473, 479-481 (2008), than in negligent misrepresentation. See Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 474 (2009). The distinction need not detain us, as the jury were instructed on negligent misrepresentation, without objection.
8. In this court, Doyle argues, in essence, that the jury could not find both (1) that William's statement as to his future intent was false when made, and (2) that William was merely negligent in making the statement, rather than intentionally misrepresenting the intent to pay. This argument was not made to the trial judge, and Doyle did not contend that it could not be found liable for negligent misrepresentation on this basis. While the argument illustrates why this case is more appropriately considered a promissory estoppel case, see note 6, supra, the argument was waived. See Miga v. Holyoke, 398 Mass. 343, 351 n.9 (1986); Deerskin Trading Post, 398 Mass. at 125.
9. There was no reversible error in the admission of Kasseris's resignation letter. The admission of evidence generally falls within the trial judge's discretion, Pardo v. General Hosp. Corp., 446 Mass. 1, 18 n.31 (2006) (“exacting scrutiny” of admission of hearsay statements in civil trials “not required”), and here the resignation letter was relevant, and also was responsive to cross-examination questions asked by Doyle's counsel. Moreover, the letter is cumulative of Kasseris's trial testimony.
10. The plaintiff's request for appellate attorney's fees is denied.
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