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BRISTC:. SUPERIOR COURT
FILED
U3)
JUN 13 2016
MARC J. SAI NT
CLERK/MAGI
Gg@monwealth of Massachusetts |
Appeals Court for the Commonwealth
At Boston
In the case-no. 14-P-1978
)|-a4&
OCEAN ECOSYSTEMS, INC.
vs.
HANNAH BODEN CORPORATION & others.
Pending in the Superior
Court for the County of Bristol
Ordered, that the following entry be made on the docket:
Judgment affirmed.
Order entered July 2, 2013,
on Hannah Boden
Corporation's motion for
new trial affirmed.
Order entered November 29,
2013, denying parties'
posttrial motions affirmed.
By the Court,
Qeanak SSE, cers
(Pate March 16, 2016.
NOTICE: Summary decisions issued by the Appeals Court pursuant to it. 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 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
14-P-1978
OCEAN ECOSYSTEMS, Inc.
vs.
HANNAH BODEN CORPORATION & others.?
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this complex civil case. involving red crab fishing,
defendant Hannah Boden Corporation (Hannah Boden) appeals from a
Superior Court judgment and from the denial of its posttrial
motions for a new trial and to alter or amend the judgment. The
plaintiff, Ocean Ecosystems, Inc. (Ocean Eco), cross-appeals
from the judgment and from the denial of its posttrial motion to
amend the judgment to include the remaining defendants.? We
affirm.
+ Benthic Fishing Corporation; Benthic Mariner, LLC; and Diamond
G Crab, LLC.
®? The defendants collectively filed a notice of appeal. However,
only Hannah Boden filed a brief.
3? We decline to address Ocean Eco's appeal from the order denying
its motion'to amend the judgment as it makes no argument in its
brief regarding this order. See Mass.R.A.P. 16(a) (4), as
amended, 367 Mass. 921 (1975); Travenol Labs.,- Inc. v Zotal,
Ltd., 394 Mass. 95, 97 (1985); Budish v. Daniel, 417 Mass. 574,
ate
577 n.5 (1994). Instead, the brief focuses on the midtrial
Background. We briefly summarize the facts the jury could’
: = aed
Ley Ac
have fould foliowing the appro xima ately one “week “long #£%
2008, Neal Goff, Jonathan Williams, and Frank Wetmore weré in”
the red crab fishing business. Williams owned three fishing
vessels and was the principal of the defendant corporations.
Goff and Wetmore were owners of Ocean Eco,* and from 1994 until
2008, Goff dwied “the fishing vessel “Frank wetmore™-(the
Wetmore) .° All of the vessels operated out of the Fall River
State Pier. Around 2001, the National Marine Fisheries Service
began to regulate the fishery in which Williams, Goff, and
Wetmore participated, which is the only red crab fishery in-the
United states. ““Thé Service issued five -pefmits allowing the’ 3
holders t6° Gatch a maximum amount of red crab per trip. Ocean”
Eco's permit allowed it to catch up to 125,000 pounds per ‘trip,
while the remaining permit holders could catch up to 75,000
pounds. ‘By June, 2008, Williams or the corporations that he
controlled owned four of the five permits.
on dune 25, 2008, Williams
on behalf of Hannah Boden, and
Goff on behalf of Ocean Eco executed three agreements. ‘One was
~
a pu rchase and sale agreement for the Wetmore and the permit,
another was the "Bareboat Charter Agreement" (charter
-- oO
denial“of ‘Ogean Eco"s motion to “ariend the Gomplaint,‘ whitch .wWasic
allowed after trial.
4 Goff ‘dwhed ninety-one “percent: and Wetmore owred nine percent. £.
5 The vessel previously was owned by Wetmore.
agreement), andthe. third was
wae
th
"Red Crab Conop Agre nt"
pho
{covop agreement}.. ,Through these agreements, Hannah Boden, r
purchased
the Wetmore and the permit and leased, the vessel back, .
i
to Ocean Eco in exchange for a portion of Ocean Eco's share of
profits from the co-op agreement. Hannah Boden paid Ocean Eco
$550,000 for the Wetmore, with the price of the permit to be
“established.according to the profits of the lease agreements."
Pursuant to the lease provision, Hannah Boden's "rate of
compensation" was fifty-one percent of the profits Ocean Eco
received from the co-op. The co-op consisted of the defendant
corporations (excluding Hannah Boden) and Ocean E¢o., Benthic,
Fishing was. the :¢ p-manager;, Ocean Eco ,or.its..designee
would
mana the Wetmor, n exchange -for $40,000 per year off was.
5. -
guaranteed $40,000 per year from the co-op's profits;
and "Ocean
Ecosystems -w[ould] always manage one vessel in the co-op."
.
After the sale, Goff added Williams as a signatory on Ocean
Eco's accounts and Hannah Boden took over managing Ocean Eco's
books. Inevitably, problems soon arose. Goff would make cash
withdrawals without accounting for them to the bookkeeper,
prompting Williams to withdraw $175,000 from Ocean Eco's account
without Goff's knowledge. Goff neglected to tell Williams about
paymentson two personal loans that were automatically deducted
- ~ ~
from Ocean Eco"s account, and..Goff -did not, know that W ms
had. apolicy. of withholding money from the cre By Januar *
’ sa
2009, the relationship between Williams and had Goff
ood as i tty
deteriorated to the point where they communicated Snty’ “Entough
Wetmore Williams offered to pay Ocean Eco $490 000 ‘to ‘ond the
relationship, and, through electronic mail messages, Wetmore,
Williams, and Goff negotiated and. came to an agreement regarding
a buy-out of Ocean Eco by Hannah Boden They agreed on a price
and met on February 1, 2009, to confirm Wetmore drafted “a
document entitled "Red Crab Permit Sale," which set forth the
terms of the parties agreement and which Wetmore and Goff
signed (the permit sale agreement) The agreement did not
provide for dissolution of the co-op or termination of Goff'
employment. Hannah Boden wrote Ocean Eco a check for $12,000-as
aan
a down payment: for the permit; however, ‘Williams did Hot sign”
the permit sale agreement.
Williams then left the country for ten days Goff agreed
to watch the vessel while he was gone On February 17 2009,
following a “cold spell," frost damage was discovered on the
ne ~
vessel Water pipes had split, an exhaust manifold had cracked,
and there were several cracks on one of the main engine blocks
,
News of the damage left Williams "reeling," and ultimately he
decided not to repair the vessel Williams “fired” Goff and
requested ‘chat the Fall
River State Pier deny Gott access “unless
{te ‘ wae bass shy
he was accompanied by one of williams" s "employees ora guard;
gett i c = ” -, . = eer 2
fee
and by March, 2009, the co- op “was, done. " In August, 2010,
oe » ma
,
Williams sold the Wetmore for $65,000
Z -
On March 30, 2011, Ocean Eco filed a complaint against
Hannah Boden and the other co-op members alleging breach and
wrongful termination of the charter and co-op agreements It
also sought an accounting and damages The defendants answered
and asserted counterclaims for breach of the charter and co-op
agreements, breach of the covenant of good faith and fair
dealing, deceit, negligent misrepresentation, unjust enrichment,
and embezzlement. Trial took place before a jury and, as the
evidence was drawing to a close, the Judge expressed his
WY
inclination 1 subm. tia Series of questions that will not
*
separate agreements but ;will tell the jurors to begin with that
these agreements are two in number but one in terms of breaches
of contract." Neither party objected. The judge dismissed
without. objection, Hannah Boden's claims for deceit and
negligent misrepresentation, and he reserved for himself
disposition of the permit The jury returned special verdicts
in favor of Ocean Eco on its claims for breach and wrongful
termination of the.agreements, and it awarded damages in the
amount of $391,000 The jury found in favor of Hannah Boden on
the accounting claims, and it found that Ocean Eco wrongfully
withdr onies fr it own bank account in the amount of
ee Me =
$22,133.42. Judgment entered in ‘favor of Ocean Eco in the
amount of $391,000 with interest iri the amount of $100,012 18,
in
and in “favor
“of* Hannah Boden | the’ amount ‘of $22 (133.43 with *
~ - :
interest of $5,661.35.°
After trial, Ocean Eco moved to amend the judgment to
include the remaining defendants, and Hannah Boden moved for a
new trial. The "court decline[d] to order a new trial,” but it
did "amend[] the pleadings to® conform to the ‘evidence pursuant
to Mass.R.Civ.P. 15(b)." Nearly four months later, the
defendants moved pursuant to Mass.R.Civ.P. 59, to alter or amend
the judgment to remove the award of prejudgment interest. The
trial-judge denied both Ocean Eco and Hannah Boden's motions to
+ '
amend- if a written decision.’
. aoe
“.»Diséussion: T “Motion for anew trial. “Hannah Bodes!
seeks a new trial on the basis that the verdict was against the~~
weight of the evidence. Although Hannah Boden did not move at
trial for a directed verdict, "[a] proper motion for a directed
verdict is not a prerequisite for a motion for new trial."
Bonofiglio v.- Commercial Union Ins. Co., 411 Mass. ‘31; 36 1.2 :
(1991). See Service Publications, Inc. v. Goverman,. 396 Mass.
567, 571 n.5 (1986) ("The filing of a motion for directed
verdict is a prerequisite to.filing a motion for judgment
~,
notwithstanding -the verdict" ) Hannah Boden does not argu en at
- i
tye
ay He
® A dé so entered ati rights, 1 an tere:
in*theBerinit’ beldng to the Deféndant, Hanna [sic] Boden! Corp."
the jpdge' Ss denial of its motion constitutes an, abuse of
woe -
discretion, and the verdict was, supported by, evidence that 1 ‘ .
L
Williams "fired" Goff, that the captain of the Wetmore was an
employee of Williams and not Ocean Eco, and that the permit was
not disposed of until after trial See J. Edmund & Co Vv.
Rosen, 412 Mass 572 576 (1992) (citations omitted) ("A trial
judge may set aside a jury verdict ‘and order a new trial if the
verdict is against the clear weight of the evidence That
determination rests in the sound discretion of the trial
judge")
Hannah Boden next seeks a new trial.on the basis that the
judge erroneously instructed the jury that it-could find for =
Ocean Eco if it determined that Hannah Boden breached permit
sale agreement. As Hannah Boden recognized in its Superior
Court filing, the judge's instruction regarding the permit sale
agreement related to damages He instructed the jury that Ocean
7 The charter agreement states that it "shall remain binding _
until federal’ fisheries permit #410535 is either-~sold or ,
transferred to a different owner[,]" and that "Ocean ecosystems
will always manage one vessel in the co-op. The co-op
agreement: provides that "Ocean Ecosystems or it's [sic] designee
will manage it's [sic] vessel for $40,000 per year."
8 The judge instructed the jury that, if they found that Hannah
Boden wrongfully terminated the. agreements, they could consider
in assessing damages the "alleged plan" by Williams and Goff to
end their relationship in exchange for $490,000 Counsel for
Hannah Boden objected to the inclusion of a specific sum, and
the judge gave a curative instruction ("it's for you to - ne
determine if that was the understanding that eventually uld wm
have én put into ‘effec Harinah Boden did not, gbject - n, th
i
Eco-bore the burden of proving that Hannah Boden "actially
terminated the ‘contract consisting of the Chartér and Cdé-Op
“
Agreements," and we see no error
Finally, Hannah Boden seeks a new trial so that a jury can
determine whether Goff's wrongful withdrawal of $22,133.42
constituted a material breach of contract which would preclude
Goff from recovering Hannah Boden waivéd'the right to have the
jury decide this issue by failing to request a special question
or demand its submission to the jury. Mass.R.Civ.P 49(a), 365
Mass 812 (1974) "As put to the jury, [Hannah Boden's]
cancellation of the contract could be excused only by [Ocean
ae
Eco's] material breach." G.M. Abodeely Ins Agency, Inc
Commerce In: Co., 41 Mass App. Ct 274, 281 (1996) The jury
found that Ocean Eco did not breach the agreements by failing to
perform in a workmanlike manner to prevent frost damage to the
Wetmore Hannah Boden did not "move to correct [any apparent]
-
grounds now raiséd on appéal, it did not argue thosé grounds ‘in
support of its motion for a new trial and we do not consider
them See Mass.R.Civ.P. 51(b), 365 Mass 816 (1974) ("No party
may assign as error the giving or the failure to give an
instruction unless he objects thereto . , Stating distinctly
the matter to which he objects and the grounds of his
objection"); Narkin v. Springfield, 5 Mass App. Ct 489, 49]
(1977) ("A party who fails to comply with [Mass.R.Civ.P 51(b)]
forfeits his right to complain on appeal of the giving or
omission of an instruction"); Laveck v. Pascoe Pizza, Inc. 29
Mass. App. foe: 935, 935 (1990) ("None of the four points: wiih
the defendants now press was properly called to the attention of
the trialGudge “And those’ igsues ‘aré, therefore,” “Yost: “or
appeal").
inconsistency, prior to d. ismissal of the jury," Holder Gilban
ett - ~
Bldg. Co., 19 Mass
App. CE. 214, 219 (1985)7, 42 aig not,
ask the
judge to "resubmit the questions to the jury with additional
instructions" that they determine whether the wrongful
withdrawal of monies constituted a material breach of the
agreements, ibid.; and it "makes no complaint on appeal about
the form of the special .questions[.]" G.M. Abodeely Ins.
Agency, Inc., supra at 279. The judge made no finding regarding
material breach and he did not address the issue in denying
Hannah Boden's motion for a new trial. We deem the judge "to
have made a finding in accord with the judgment on .the special =:
verdict." Mass R.Civ.P 9a, “The judgment against ,[Hannah -
Boden] is . consistent -with the jury's determination that
(Ocean Eco] did not materially breach the contract[,]" G.M.
Abodeely ins. Agency, Inc., supra at 281, and we see no abuse of
discretion in denying Hannah Boden a new trial on these grounds.
See Gath v. M/A-CON, Inc., 440 Mass. 482, 492 (2003) ("We grant
considerable, deference to a judge's disposition ef a.motion for, .
a new trial, especially where he was the ‘trial judge, and we
will reverse the ruling only for an abuse of discretion"). -
2 Motion to alter or amend. Five months after judgment
entered, Hannah Boden moved to amend the judgment-to remove. the.”
.
award, of Bre vdgtient: iterest. ‘Tt argued that the case was,
os -
controlled,by Federal maritime. Law,. pursuant:to which th
1h
question of interest must be submitted to the jury The jhdge
found that the harter and co-op agreements "meet[] the
definition of.a maritime contract[,]" but that Hannah Boden
waived its right to have the jury decide the question of
interest when it failed to ask that it be put to the jury.
me was no error.
Hannah Boden neither brought ‘claims under Federal maritime
law, contrast Militello v. Ann & Grace, Inc., 411 Mass. 22
(1991), nor raised that law at any point before trial. See
Mass.R.Civ.P. 44.1, 365 Mass. 809 (1974) ("A party who intends
to raise an issue concerning the law of the United States .
shall give notice in his pleadings or other reasonable written
notice"). As Hannah Boden did not demand that the issue be
submitted to the jury at any point, we agree with the judge that
SCR
10
the. issue _is waived ‘See Mass.R,Ciy.P. 49(a). “atts
- : - ‘
¢ - Judgment affirmed.
Order entered July 2, 2013,
on Hannah Boden
Corporation's motion for
new trial affirmed.
Order entered November 29
2013, denying parties'
posttrial motions affirmed.
bec
By the Court (Vuono,
Carhart & Kinder, JJ.%),
fpr’ or Sa
Clerk
Entered: -March -16,- 2016. .
alo fe
° The panelists are listed in order of seniority.
11
COMMONWEALTH OF MASSACHUSETTS
BRISTOL, 85 ouPERIOR COURT
FLED APPEALS COURT CLERK'S OFFICE
John Adams Courthouse
JUN 13 2016 One Pemberton Square, Suite 1200
Boston, Massachusetts 02108-1705
(617) 725-8106; mass.gov/courts/appealscourt
MARC J. SANTOS, ESQ.
CLERK/MAGISTRATE
Bristol Superior Court
Clerk for Civil Business
9 Court Street
Taunton, MA 02780
RE: No. 2014-P-1978
OCEAN ECOSYSTEMS, INC.
vs.
BENTHIC FISHING CORP & others
Lower Court Docket number: 1173CV00348
NOTICE OF RESCRIPT
In accordance with Massachusetts Rule of Appellate
Procedure 23, please note that rescript in the above-referenced
case has been entered on the Appeals Court docket and is
enclosed.
Very truly yours,
The Clerk's Office
Dated: June 9, 2016
he
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BRISTC:. SUPERIOR COURT FILED U3) JUN 13 2016 MARC J. SAI NT CLERK/MAGI Gg@monwealth of Massachusetts | Appeals Court for the Commonwealth At Boston In the case-no. 14-P-1978 )|-a4& OCEAN ECOSYSTEMS, INC. vs. HANNAH BODEN CORPORATION & others. Pending in the Superior Court for the County of Bristol Ordered, that the following entry be made on the docket: Judgment affirmed. Order entered July 2, 2013, on Hannah Boden Corporation's motion for new trial affirmed. Order entered November 29, 2013, denying parties' posttrial motions affirmed. By the Court, Qeanak SSE, cers (Pate March 16, 2016. NOTICE: Summary decisions issued by the Appeals Court pursuant to it. 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 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 14-P-1978 OCEAN ECOSYSTEMS, Inc. vs. HANNAH BODEN CORPORATION & others.? MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 In this complex civil case. involving red crab fishing, defendant Hannah Boden Corporation (Hannah Boden) appeals from a Superior Court judgment and from the denial of its posttrial motions for a new trial and to alter or amend the judgment. The plaintiff, Ocean Ecosystems, Inc. (Ocean Eco), cross-appeals from the judgment and from the denial of its posttrial motion to amend the judgment to include the remaining defendants.? We affirm. + Benthic Fishing Corporation; Benthic Mariner, LLC; and Diamond G Crab, LLC. ®? The defendants collectively filed a notice of appeal. However, only Hannah Boden filed a brief. 3? We decline to address Ocean Eco's appeal from the order denying its motion'to amend the judgment as it makes no argument in its brief regarding this order. See Mass.R.A.P. 16(a) (4), as amended, 367 Mass. 921 (1975); Travenol Labs.,- Inc. v Zotal, Ltd., 394 Mass. 95, 97 (1985); Budish v. Daniel, 417 Mass. 574, ate 577 n.5 (1994). Instead, the brief focuses on the midtrial Background. We briefly summarize the facts the jury could’ : = aed Ley Ac have fould foliowing the appro xima ately one “week “long #£% 2008, Neal Goff, Jonathan Williams, and Frank Wetmore weré in” the red crab fishing business. Williams owned three fishing vessels and was the principal of the defendant corporations. Goff and Wetmore were owners of Ocean Eco,* and from 1994 until 2008, Goff dwied “the fishing vessel “Frank wetmore™-(the Wetmore) .° All of the vessels operated out of the Fall River State Pier. Around 2001, the National Marine Fisheries Service began to regulate the fishery in which Williams, Goff, and Wetmore participated, which is the only red crab fishery in-the United states. ““Thé Service issued five -pefmits allowing the’ 3 holders t6° Gatch a maximum amount of red crab per trip. Ocean” Eco's permit allowed it to catch up to 125,000 pounds per ‘trip, while the remaining permit holders could catch up to 75,000 pounds. ‘By June, 2008, Williams or the corporations that he controlled owned four of the five permits. on dune 25, 2008, Williams on behalf of Hannah Boden, and Goff on behalf of Ocean Eco executed three agreements. ‘One was ~ a pu rchase and sale agreement for the Wetmore and the permit, another was the "Bareboat Charter Agreement" (charter -- oO denial“of ‘Ogean Eco"s motion to “ariend the Gomplaint,‘ whitch .wWasic allowed after trial. 4 Goff ‘dwhed ninety-one “percent: and Wetmore owred nine percent. £. 5 The vessel previously was owned by Wetmore. agreement), andthe. third was wae th "Red Crab Conop Agre nt" pho {covop agreement}.. ,Through these agreements, Hannah Boden, r purchased the Wetmore and the permit and leased, the vessel back, . i to Ocean Eco in exchange for a portion of Ocean Eco's share of profits from the co-op agreement. Hannah Boden paid Ocean Eco $550,000 for the Wetmore, with the price of the permit to be “established.according to the profits of the lease agreements." Pursuant to the lease provision, Hannah Boden's "rate of compensation" was fifty-one percent of the profits Ocean Eco received from the co-op. The co-op consisted of the defendant corporations (excluding Hannah Boden) and Ocean E¢o., Benthic, Fishing was. the :¢ p-manager;, Ocean Eco ,or.its..designee would mana the Wetmor, n exchange -for $40,000 per year off was. 5. - guaranteed $40,000 per year from the co-op's profits; and "Ocean Ecosystems -w[ould] always manage one vessel in the co-op." . After the sale, Goff added Williams as a signatory on Ocean Eco's accounts and Hannah Boden took over managing Ocean Eco's books. Inevitably, problems soon arose. Goff would make cash withdrawals without accounting for them to the bookkeeper, prompting Williams to withdraw $175,000 from Ocean Eco's account without Goff's knowledge. Goff neglected to tell Williams about paymentson two personal loans that were automatically deducted - ~ ~ from Ocean Eco"s account, and..Goff -did not, know that W ms had. apolicy. of withholding money from the cre By Januar * ’ sa 2009, the relationship between Williams and had Goff ood as i tty deteriorated to the point where they communicated Snty’ “Entough Wetmore Williams offered to pay Ocean Eco $490 000 ‘to ‘ond the relationship, and, through electronic mail messages, Wetmore, Williams, and Goff negotiated and. came to an agreement regarding a buy-out of Ocean Eco by Hannah Boden They agreed on a price and met on February 1, 2009, to confirm Wetmore drafted “a document entitled "Red Crab Permit Sale," which set forth the terms of the parties agreement and which Wetmore and Goff signed (the permit sale agreement) The agreement did not provide for dissolution of the co-op or termination of Goff' employment. Hannah Boden wrote Ocean Eco a check for $12,000-as aan a down payment: for the permit; however, ‘Williams did Hot sign” the permit sale agreement. Williams then left the country for ten days Goff agreed to watch the vessel while he was gone On February 17 2009, following a “cold spell," frost damage was discovered on the ne ~ vessel Water pipes had split, an exhaust manifold had cracked, and there were several cracks on one of the main engine blocks , News of the damage left Williams "reeling," and ultimately he decided not to repair the vessel Williams “fired” Goff and requested ‘chat the Fall River State Pier deny Gott access “unless {te ‘ wae bass shy he was accompanied by one of williams" s "employees ora guard; gett i c = ” -, . = eer 2 fee and by March, 2009, the co- op “was, done. " In August, 2010, oe » ma , Williams sold the Wetmore for $65,000 Z - On March 30, 2011, Ocean Eco filed a complaint against Hannah Boden and the other co-op members alleging breach and wrongful termination of the charter and co-op agreements It also sought an accounting and damages The defendants answered and asserted counterclaims for breach of the charter and co-op agreements, breach of the covenant of good faith and fair dealing, deceit, negligent misrepresentation, unjust enrichment, and embezzlement. Trial took place before a jury and, as the evidence was drawing to a close, the Judge expressed his WY inclination 1 subm. tia Series of questions that will not * separate agreements but ;will tell the jurors to begin with that these agreements are two in number but one in terms of breaches of contract." Neither party objected. The judge dismissed without. objection, Hannah Boden's claims for deceit and negligent misrepresentation, and he reserved for himself disposition of the permit The jury returned special verdicts in favor of Ocean Eco on its claims for breach and wrongful termination of the.agreements, and it awarded damages in the amount of $391,000 The jury found in favor of Hannah Boden on the accounting claims, and it found that Ocean Eco wrongfully withdr onies fr it own bank account in the amount of ee Me = $22,133.42. Judgment entered in ‘favor of Ocean Eco in the amount of $391,000 with interest iri the amount of $100,012 18, in and in “favor “of* Hannah Boden | the’ amount ‘of $22 (133.43 with * ~ - : interest of $5,661.35.° After trial, Ocean Eco moved to amend the judgment to include the remaining defendants, and Hannah Boden moved for a new trial. The "court decline[d] to order a new trial,” but it did "amend[] the pleadings to® conform to the ‘evidence pursuant to Mass.R.Civ.P. 15(b)." Nearly four months later, the defendants moved pursuant to Mass.R.Civ.P. 59, to alter or amend the judgment to remove the award of prejudgment interest. The trial-judge denied both Ocean Eco and Hannah Boden's motions to + ' amend- if a written decision.’ . aoe “.»Diséussion: T “Motion for anew trial. “Hannah Bodes! seeks a new trial on the basis that the verdict was against the~~ weight of the evidence. Although Hannah Boden did not move at trial for a directed verdict, "[a] proper motion for a directed verdict is not a prerequisite for a motion for new trial." Bonofiglio v.- Commercial Union Ins. Co., 411 Mass. ‘31; 36 1.2 : (1991). See Service Publications, Inc. v. Goverman,. 396 Mass. 567, 571 n.5 (1986) ("The filing of a motion for directed verdict is a prerequisite to.filing a motion for judgment ~, notwithstanding -the verdict" ) Hannah Boden does not argu en at - i tye ay He ® A dé so entered ati rights, 1 an tere: in*theBerinit’ beldng to the Deféndant, Hanna [sic] Boden! Corp." the jpdge' Ss denial of its motion constitutes an, abuse of woe - discretion, and the verdict was, supported by, evidence that 1 ‘ . L Williams "fired" Goff, that the captain of the Wetmore was an employee of Williams and not Ocean Eco, and that the permit was not disposed of until after trial See J. Edmund & Co Vv. Rosen, 412 Mass 572 576 (1992) (citations omitted) ("A trial judge may set aside a jury verdict ‘and order a new trial if the verdict is against the clear weight of the evidence That determination rests in the sound discretion of the trial judge") Hannah Boden next seeks a new trial.on the basis that the judge erroneously instructed the jury that it-could find for = Ocean Eco if it determined that Hannah Boden breached permit sale agreement. As Hannah Boden recognized in its Superior Court filing, the judge's instruction regarding the permit sale agreement related to damages He instructed the jury that Ocean 7 The charter agreement states that it "shall remain binding _ until federal’ fisheries permit #410535 is either-~sold or , transferred to a different owner[,]" and that "Ocean ecosystems will always manage one vessel in the co-op. The co-op agreement: provides that "Ocean Ecosystems or it's [sic] designee will manage it's [sic] vessel for $40,000 per year." 8 The judge instructed the jury that, if they found that Hannah Boden wrongfully terminated the. agreements, they could consider in assessing damages the "alleged plan" by Williams and Goff to end their relationship in exchange for $490,000 Counsel for Hannah Boden objected to the inclusion of a specific sum, and the judge gave a curative instruction ("it's for you to - ne determine if that was the understanding that eventually uld wm have én put into ‘effec Harinah Boden did not, gbject - n, th i Eco-bore the burden of proving that Hannah Boden "actially terminated the ‘contract consisting of the Chartér and Cdé-Op “ Agreements," and we see no error Finally, Hannah Boden seeks a new trial so that a jury can determine whether Goff's wrongful withdrawal of $22,133.42 constituted a material breach of contract which would preclude Goff from recovering Hannah Boden waivéd'the right to have the jury decide this issue by failing to request a special question or demand its submission to the jury. Mass.R.Civ.P 49(a), 365 Mass 812 (1974) "As put to the jury, [Hannah Boden's] cancellation of the contract could be excused only by [Ocean ae Eco's] material breach." G.M. Abodeely Ins Agency, Inc Commerce In: Co., 41 Mass App. Ct 274, 281 (1996) The jury found that Ocean Eco did not breach the agreements by failing to perform in a workmanlike manner to prevent frost damage to the Wetmore Hannah Boden did not "move to correct [any apparent] - grounds now raiséd on appéal, it did not argue thosé grounds ‘in support of its motion for a new trial and we do not consider them See Mass.R.Civ.P. 51(b), 365 Mass 816 (1974) ("No party may assign as error the giving or the failure to give an instruction unless he objects thereto . , Stating distinctly the matter to which he objects and the grounds of his objection"); Narkin v. Springfield, 5 Mass App. Ct 489, 49] (1977) ("A party who fails to comply with [Mass.R.Civ.P 51(b)] forfeits his right to complain on appeal of the giving or omission of an instruction"); Laveck v. Pascoe Pizza, Inc. 29 Mass. App. foe: 935, 935 (1990) ("None of the four points: wiih the defendants now press was properly called to the attention of the trialGudge “And those’ igsues ‘aré, therefore,” “Yost: “or appeal"). inconsistency, prior to d. ismissal of the jury," Holder Gilban ett - ~ Bldg. Co., 19 Mass App. CE. 214, 219 (1985)7, 42 aig not, ask the judge to "resubmit the questions to the jury with additional instructions" that they determine whether the wrongful withdrawal of monies constituted a material breach of the agreements, ibid.; and it "makes no complaint on appeal about the form of the special .questions[.]" G.M. Abodeely Ins. Agency, Inc., supra at 279. The judge made no finding regarding material breach and he did not address the issue in denying Hannah Boden's motion for a new trial. We deem the judge "to have made a finding in accord with the judgment on .the special =: verdict." Mass R.Civ.P 9a, “The judgment against ,[Hannah - Boden] is . consistent -with the jury's determination that (Ocean Eco] did not materially breach the contract[,]" G.M. Abodeely ins. Agency, Inc., supra at 281, and we see no abuse of discretion in denying Hannah Boden a new trial on these grounds. See Gath v. M/A-CON, Inc., 440 Mass. 482, 492 (2003) ("We grant considerable, deference to a judge's disposition ef a.motion for, . a new trial, especially where he was the ‘trial judge, and we will reverse the ruling only for an abuse of discretion"). - 2 Motion to alter or amend. Five months after judgment entered, Hannah Boden moved to amend the judgment-to remove. the.” . award, of Bre vdgtient: iterest. ‘Tt argued that the case was, os - controlled,by Federal maritime. Law,. pursuant:to which th 1h question of interest must be submitted to the jury The jhdge found that the harter and co-op agreements "meet[] the definition of.a maritime contract[,]" but that Hannah Boden waived its right to have the jury decide the question of interest when it failed to ask that it be put to the jury. me was no error. Hannah Boden neither brought ‘claims under Federal maritime law, contrast Militello v. Ann & Grace, Inc., 411 Mass. 22 (1991), nor raised that law at any point before trial. See Mass.R.Civ.P. 44.1, 365 Mass. 809 (1974) ("A party who intends to raise an issue concerning the law of the United States . shall give notice in his pleadings or other reasonable written notice"). As Hannah Boden did not demand that the issue be submitted to the jury at any point, we agree with the judge that SCR 10 the. issue _is waived ‘See Mass.R,Ciy.P. 49(a). “atts - : - ‘ ¢ - Judgment affirmed. Order entered July 2, 2013, on Hannah Boden Corporation's motion for new trial affirmed. Order entered November 29 2013, denying parties' posttrial motions affirmed. bec By the Court (Vuono, Carhart & Kinder, JJ.%), fpr’ or Sa Clerk Entered: -March -16,- 2016. . alo fe ° The panelists are listed in order of seniority. 11 COMMONWEALTH OF MASSACHUSETTS BRISTOL, 85 ouPERIOR COURT FLED APPEALS COURT CLERK'S OFFICE John Adams Courthouse JUN 13 2016 One Pemberton Square, Suite 1200 Boston, Massachusetts 02108-1705 (617) 725-8106; mass.gov/courts/appealscourt MARC J. SANTOS, ESQ. CLERK/MAGISTRATE Bristol Superior Court Clerk for Civil Business 9 Court Street Taunton, MA 02780 RE: No. 2014-P-1978 OCEAN ECOSYSTEMS, INC. vs. BENTHIC FISHING CORP & others Lower Court Docket number: 1173CV00348 NOTICE OF RESCRIPT In accordance with Massachusetts Rule of Appellate Procedure 23, please note that rescript in the above-referenced case has been entered on the Appeals Court docket and is enclosed. Very truly yours, The Clerk's Office Dated: June 9, 2016 he