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March 5, 2026 Get Citation Alerts Download PDF Add Note

B-Dunz, Inc. v. the Bilingual Montessori School of Sharon.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0012

• Precedential Status: Non-Precedential

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.8K)

• PDF

Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-12

B-DUNZ, INC.1

vs.

THE BILINGUAL MONTESSORI SCHOOL OF SHARON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This action stems from a soured business relationship

between the plaintiff, a landscaping company, and its client,

the defendant school. The plaintiff's claims and the

defendant's counterclaims were tried before a jury in the

Superior Court. The judge entered directed verdicts and

subsequently dismissed certain of the plaintiff's claims and the

defendant's counterclaims, and the jury otherwise returned

verdicts in the plaintiff's favor. After the defendant moved

for judgment notwithstanding the verdict (JNOV) and for a new

trial, the judge allowed the motion, in part, ordering a new

1 Doing business as Shoveltown Landscaping.
trial unless the plaintiff accepted a remittitur reducing the

damages awarded by $2,000. Otherwise, the judge denied the

motion. The plaintiff accepted the remittitur, the judge

allowed the plaintiff's motion for costs, a new final judgment

entered on April 19, 2024, and this appeal followed.

Because we (1) agree with the judge's rulings on the

parties' motions for directed verdict and JNOV, (2) discern

neither abuse of discretion nor other error in the judge's

denial of the defendant's motion for a new trial, (3) are

satisfied that the judge acted permissibly in limiting the

defendant's use of evidence relating to insurance, (4) conclude

that the defendant waived its objections to the judge's failure

to give certain of its proposed jury instructions, and (5) are

not persuaded that the judge abused her discretion in allowing

the plaintiff's posttrial motion for costs, we affirm the

judgment dated April 19, 2024.

Background. We briefly summarize relevant procedural

history and facts as the jury could have found them, reserving

certain details for later discussion. The plaintiff is a

landscaping business founded and operated by Brian Donovan. The

defendant is a school owned by Linda Valentin. In 2017, the

defendant hired the plaintiff to do landscaping work. The

parties orally agreed that the plaintiff would perform snow

removal for the defendant; Donovan prepared a written proposal

2
for the work, including a schedule of plowing fees, but no

written contract was signed. During the winter of 2017 to 2018,

the plaintiff plowed and, at Valentin's instruction, salted the

school's parking area and walkways. Although the plaintiff

billed the defendant for that work, there was an unpaid balance

of $10,778 on the defendant's account by March 2018.

The parties' business relationship was complicated by

damage to certain parts of the defendant's premises. In the

fall, the plaintiff's employees had displaced the top of an

ornamental fountain (fountain damage). While snowplowing during

a storm, one of the plaintiff's temporary employees damaged an

ornamental tree, hydrangeas, and some boxwoods in a corner of

the school's parking lot (plowing damage). Additionally,

Valentin claimed that the plaintiff had damaged a number of

ornamental boxwoods, which she wanted the plaintiff to replace

(boxwood damage). Donovan acknowledged that the plaintiff was

responsible for the fountain and plowing damage, which he

consistently told Valentin that the plaintiff would fix, but he

denied that the plaintiff was responsible for the boxwood

damage.

On March 26, 2018, Donovan met with Valentin in an effort

to collect the unpaid balance for the plaintiff's landscaping

and plowing work. During the meeting, Valentin prepared a

written "agreement" (settlement agreement) that she and Donovan

3
then signed. The settlement agreement documented the balance

due to the plaintiff, the defendant's payment of $4,190 on March

26, and the defendant's agreement to pay the remaining amount

due2 "upon completion of all repairs and tree replacements." A

"List of damages" included in the settlement agreement

identified outstanding work: replacement of "perhaps half of

the boxwood," repair of areas with gravel and mulch, and

replacement of the fountain top. Donovan agreed to the terms of

the settlement agreement based on his understanding that the

scope of the work was limited to replacement of the fountain top

and repair of the plowing damage and that it would cost the

plaintiff between $2,000 and $2,500. Donovan and Valentin

signed the settlement agreement, and Valentin made the initial

payment of $4,190.

Immediately after the initial payment was made, however,

Valentin made it clear to Donovan that she expected the

plaintiff to make repairs to the defendant's property that were

much more expansive and expensive than those to which Donovan

had agreed when he signed the settlement agreement. As a

result, Donovan abandoned his efforts to negotiate a resolution

2 The settlement agreement notes the outstanding amount as
"$10,778," the amount paid on March 26 as "$4,190," and the
balance to be paid on completion of the work as "$6,584." The
last figure represents a slight calculation error.

4
with the defendant. On March 28, 2018, the plaintiff filed a

small claim action against the defendant in the District Court,

seeking the unpaid balance of $6,588 on the defendant's

landscaping and plowing bills. The plaintiff's small claim

action was transferred to the regular civil docket and then to

the Superior Court, where the plaintiff filed an amended

complaint alleging breach of contract, breach of the implied

covenant of good faith and fair dealing, and violation of G. L.

c. 93A. The defendant answered and counterclaimed for breach of

contract, negligence, fraud, abuse of process, and violation of

G. L. c. 93A.

The case went to trial before a jury. As relevant to this

appeal, the judge allowed the plaintiff's motion for a directed

verdict in its favor on the defendant's counterclaim for abuse

of process, dismissed the plaintiff's claim under G. L. c. 93A

with the plaintiff's agreement, and denied the defendant's

motion for a directed verdict on its counterclaims for breach of

contract.3 The remaining claims and counterclaims were submitted

to the jury; the jury found for the plaintiff on all of them,

including in an advisory verdict on the G. L. c. 93A

3 The judge considered the counterclaim for violation of the
implied covenant of good faith and fair dealing to be part of
the counterclaim for breach of contract. No party objected to
this approach.

5
counterclaim, and awarded damages of $6,588 to the plaintiff on

its breach of contract claim. The judge adopted the jury's

advisory verdict on the G. L. c. 93A counterclaim. Judgment

entered accordingly.

The defendant moved timely for JNOV or, in the alternative,

for a new trial. See Mass. R. Civ. P. 50 (b), as amended, 428

Mass. 1402 (1998). The plaintiff moved for an award of costs.

The judge ordered a new trial unless the plaintiff accepted a

remittitur reducing the damages awarded to the plaintiff by

$2,000, but otherwise denied the defendant's motion. She

allowed the motion for costs. The plaintiff accepted the

remittitur, the first judgment was vacated, a new final judgment

entered, and this appeal followed.

Discussion. 1. Motions for directed verdict and JNOV. a.

Standard of review. When considering a challenge to a judge's

ruling on a motion for a directed verdict or for JNOV, we ask

"whether 'anywhere in the evidence, from whatever source

derived, any combination of circumstances could be found from

which a reasonable inference could be made in favor of the

[nonmovant].'" O'Brien v. Pearson, 449 Mass. 377, 383 (2007),

quoting Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass.

119, 121 (1992). A reasonable inference must be "based on

'probabilities rather than possibilities' and not the result of

'mere speculation and conjecture.'" Poirier v. Plymouth, 374

6
Mass. 206, 212 (1978), quoting Alholm v. Wareham, 371 Mass. 621,

627 (1976).

b. Denial of defendant's motions for directed verdict and

JNOV on plaintiff's claim for breach of contract. We do not

agree with the defendant's contention that it was entitled to a

directed verdict on this claim based on the plaintiff's own

"material breach" of the oral contract for services. See

Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App.

Ct. 599, 610 (2003) (material breach by one party excuses other

party from performance). The conduct constituting the breach,

as the defendant frames it, was that which resulted in the

fountain damage and the plowing damage. The defendant's

argument fails because the evidence, viewed in the light most

favorable to the plaintiff, see O'Brien, 449 Mass. at 383,

established that the damage in question was both accidental and

not significant, such that it did not concern an "essential and

inducing feature of the contract." Lease-It, Inc. v.

Massachusetts Port Auth., 33 Mass. App. Ct. 391, 396 (1992),

quoting Bucholz v. Green Bros. Co., 272 Mass. 49, 52 (1930)

(defining "material breach"). See DiBella v. Fiumara, 63 Mass.

App. Ct. 640, 644 (2005) ("insignificant or accidental" breaches

are generally not material [emphasis added]). We think the

defendant's argument particularly weak where both Donovan and

7
Valentin testified that Donovan had agreed to repair that

particular damage. See id. at 646 n.7.

c. Entry of directed verdict against defendant on its

counterclaim for abuse of process. The defendant's counterclaim

for abuse of process depended on the defendant's ability to show

that the plaintiff brought the suit against it "to accomplish

some ulterior purpose for which [the process] was not designed

or intended, or which was not the legitimate purpose of the

particular process employed." Millennium Equity Holdings, LLC

v. Mahlowitz, 456 Mass. 627, 636 (2010), quoting Quaranto v.

Silverman, 345 Mass. 423, 426 (1963). We agree with the judge

that even viewing the evidence in the light most favorable to

the defendant as the nonmovant, see O'Brien, 449 Mass. at 383,

it showed only that the plaintiff filed the small claim action

to collect a balance that Valentin conceded was owed for

landscaping and plowing services.

The defendant's argument that Donovan's failure to mention

the settlement agreement or its "repair obligation" in its

statement of small claim was evidence of the requisite ulterior

or illegitimate purpose, see Millennium Equity Holdings, LLC,

456 Mass. at 636, is not persuasive. Even if the evidence

permitted a reasonable inference that the plaintiff had a

contractual "repair obligation," the abuse of process claim

would nonetheless fail because there was no evidence of an

8
ulterior purpose -- the desire to recover money, even with a

meritless claim, is not an ulterior motive in a suit for

damages. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 713 (2011)

("ulterior purpose element is not satisfied merely by a showing

that a person commenced litigation knowing it was groundless").

"Rather, the ulterior purpose must be to gain some collateral

advantage," id. at 713-714, and there is no evidence of that in

this case.

1. Motion for a new trial.4 a. Standard of review. "The

judge should only set aside a verdict as against the weight of

the evidence when it is determined that the jury 'failed to

exercise an honest and reasonable judgment in accordance with

the controlling principles of law'" (citation omitted).

O'Brien, 449 Mass. at 384. Such an order is only appropriate

where the judge is convinced that "the jurors allowed themselves

to be misled, were swept away by bias or prejudice, or for a

combination of reasons, including misunderstanding of applicable

law, failed to come to a reasonable conclusion." Meyer v.

Wagner, 57 Mass. App. Ct. 494, 504-505 (2003), quoting W. Oliver

Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748

4 To the extent that the defendant's challenge to the ruling
on the motion for a new trial also relies on a claim that it was
entitled to jury instructions the judge declined to give, we are
not persuaded for reasons we explain below.

9
(1993). See Evans v. Multicon Constr. Corp., 6 Mass. App. Ct.

291, 295 (1978) ("the judge should not . . . nullify a jury's

verdict by granting a new trial unless it appears on a survey of

the whole case that otherwise a miscarriage of justice would

result").

Our review of the judge's order denying the motion for a

new trial is for an abuse of discretion, and where the motion

was decided by the trial judge, we accord "considerable

deference" to the judge's decision. Gath v. M/A-COM, Inc., 440

Mass. 482, 492 (2003). See W. Oliver Tripp Co., 34 Mass. App.

Ct. at 747 ("the occasions on which appellate courts have

thought to have been abused the broad discretion of a trial

judge on such a motion are extremely rare; like snow storms in

mid-May, such occasions may occur, but they induce considerable

astonishment when they do").

b. Counterclaim for breach of contract based on the

settlement agreement. "A settlement agreement is a contract and

its enforceability is determined by applying general contract

law." Sparrow v. Demonico, 461 Mass. 322, 327 (2012). "An

enforceable agreement requires (1) terms sufficiently complete

and definite, and (2) a present intent of the parties at the

time of formation to be bound by those terms." Targus Group

Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). It

also requires a "manifestation of mutual assent, otherwise known

10
as a 'meeting of the minds.'" Sea Breeze Estates, LLC v.

Jarema, 94 Mass. App. Ct. 210, 215 (2018), quoting I & R

Mechanical, Inc. v. Hazelton Mfg. Co., 62 Mass. App. Ct. 452,

455 (2004).

In this case, Donovan's testimony provided ample evidence

to show that the parties did not reach a meeting of the minds on

an essential term of the settlement agreement -- the scope of

the plaintiff's obligation to repair the damages claimed by the

defendant. That evidence showed, and the jury found, that no

contract was formed. See Situation Mgt. Sys., Inc. v. Malouf,

Inc., 430 Mass. 875, 878 (2000) ("It is axiomatic that to create

an enforceable contract, there must be agreement between the

parties on the material terms of that contract, and the parties

must have a present intention to be bound by that agreement").

Where the defendant failed to prove that the settlement

agreement was a contract, it necessarily failed to prove that

the plaintiff breached the contract's terms. Cf. Sea Breeze

Estates, LLC, 94 Mass. App. Ct. at 216-218 (where there was no

agreement on material terms, there was no breach). The judge

did not abuse her discretion in denying the defendant's motion

for a new trial on this counterclaim.

c. Counterclaim for negligence. The judge denied the

defendant's motion for a new trial on the second counterclaim,

which alleged negligence, conditioned on the plaintiff's

11
acceptance of a remittitur. See Mass. R. Civ. P. 59 (a), 365

Mass. 827 (1974). The amount of the remittitur corresponded to

the cost of repairing the damage that Donovan, in his testimony,

admitted was caused by the plaintiff, and the plaintiff accepted

the remittitur.

The defendant failed to introduce evidence to establish

that the plaintiff's negligence was the cause of damage beyond

the fountain damage and the plowing damage accounted for by the

remittitur. Additionally, the plaintiff introduced expert

testimony to show that the more extensive landscaping problems,

which the defendant attributed to the plaintiff's poor

workmanship, could instead have been the result of weather

conditions or disease. As such, it was reasonable for the jury

to conclude that the defendant had failed to prove that the

plaintiff was responsible for harm beyond that for which Donovan

accepted responsibility. "It is a bedrock principle of

negligence law that a [party] cannot and should not be held

liable for a harm unless the [party] caused the harm." Doull v.

Foster, 487 Mass. 1, 6-7 (2021). Given the state of the

evidence, we are satisfied that the judge did not abuse her

discretion in her ruling on the defendant's motion for a new

trial on the counterclaim for negligence.

d. Counterclaims for fraud and violation of G. L. c. 93A.

The defendant's challenge to the denial of a new trial on its

12
third and fifth counterclaims, which alleged fraud and violation

of G. L. c. 93A, respectively, is limited to an attack on the

judge's exclusion of evidence relating to the parties'

insurance. Because, as we discuss in more detail below, we are

satisfied that the judge's evidentiary ruling was not an abuse

of discretion, we conclude that her denial of the motion for a

new trial on these counterclaims was likewise within her

discretion.

1. Limitation on defendant's use of evidence of insurance.

We discern no abuse of discretion in the judge's rulings

limiting the defendant's ability to introduce evidence of

insurance in support of its counterclaims for fraud, abuse of

process, and violation of G. L. c. 93A. In general, a party may

not show that an opposing party is insured against liability.

Goldstein v. Gontarz, 364 Mass. 800, 808 (1974). See Mass. G.

Evid. § 411 (2025) (evidence of insurance coverage is not

admissible "to prove whether the person or entity acted . . .

wrongfully"). Although a judge has the discretion to admit

evidence of insurance to prove, for example, ownership or a

witness's bias, Goldstein, supra at 812 & n.13, the defendant

has not provided us with any precedent for the admissibility of

such evidence to show motive or intent in the context of a case

13
like this one,5 nor are we aware of any. Even if we were to

conclude (as we do not) that the evidence at issue was otherwise

admissible, the judge excluded it based on her determination

that it was substantially more prejudicial than probative. See

Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004).

Mindful that "the rules regarding the inadmissibility of

insurance exist so that juries will not be swayed by the fact

that a deep-pocket insurance company has paid or will pay for

the loss," Antoniadis v. Basnight, 99 Mass. App. Ct. 172, 177

(2021), we cannot say that the judge's assessment or the

resulting ruling constituted an abuse of discretion.

Nor are we persuaded that the judge's ruling precluded the

defendant from impeaching Donovan's credibility. The judge

permitted defense counsel to cross-examine Donovan using the

notes from his interview on March 27, 2018, with an insurance

claims adjuster, and (as the judge noted in her thorough written

5 The defendant's reliance on Commonwealth v. Anolik, 27
Mass. App. Ct. 701 (1989), for this proposition is misplaced.
Anolik is a criminal case in which the appealing party had been
convicted of charges including burning a dwelling with the
intent to defraud an insurer. See id. at 702. In that context,
this court held that evidence related to insurance, including
the division of the insurance proceeds after the fire and that
the defendant had advised the homeowner to increase the
insurance on the property before the fire, was admissible "to
establish [the defendant's] motive, plan or intent" to commit
the crimes. Id. at 707. Here, the defendant's counterclaims
did not allege that the plaintiff attempted to defraud any of
its insurers, making this case distinguishable from Anolik.

14
decision on the defendant's motion for a new trial) defense

counsel "chose not to question Donovan relative to any

statements made to his insurer before the March 26 meeting" with

Valentin.

1. Jury instructions. As to jury instructions, Mass. R.

Civ. P. 51 (b), 365 Mass. 816 (1974), 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 defendant's challenge to

the judge's omission of certain of the defendant's proposed jury

instructions fails because the defendant did not satisfy the

requirements of this rule.

On the morning of the fourth day of trial, before

recommencing the evidence, the judge provided counsel with draft

jury instructions. At the morning break, the judge held a

charge conference. Although at that time,6 defense counsel

raised concerns about the instructions that the judge did

include in the draft, he did not object to the judge's omission

from the draft of any of the defendant's proposed instructions

on detrimental reliance, waiver, or estoppel. After the jury

instructions had been given, defense counsel put on the record

6 And later, when the judge provided a revised draft.

15
the fact of his objection to the judge's failure to give certain

instructions that the defendant had proposed, including those

the defendant focuses on here. However, he did no more than

note the absence of those instructions. Absent a clear

statement identifying for the judge the "grounds of [its]

objection," Mass. R. Civ. P. 51 (b), the defendant's challenge

to the judge's failure to give the omitted instructions is

waived, and we do not consider it.

1. Order allowing plaintiff's motion for costs. Where the

plaintiff prevailed on all claims except those it brought

against the defendant for violation of G. L. c. 93A, and where

that claim was dismissed with the plaintiff's assent, the judge

did not abuse her discretion in allowing the plaintiff's motion

for its litigation costs. See Mass. R. Civ. P. 54 (d), as

16
appearing in 382 Mass. 821 (1980) ("costs shall be allowed as of

course to the prevailing party unless the court otherwise

directs").

Judgment dated April 19,
2024, affirmed.

By the Court (Blake, C.J.,
Hand & Toone, JJ.7),

Clerk

Entered: March 5, 2026.

7 The panelists are listed in order of seniority.

17