MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial, a judge of the Superior Court entered a judgment that awarded $479,689.94 plus prejudgment interest to the plaintiff, Grieco Williams, LLC (LLC), and expelled the defendant, John Michael Williams, from the LLC.
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The defendant appeals, contending that the judge erred in finding that the contracts at issue were unambiguous and in relying on extrinsic evidence. We affirm.
Background. We draw our summary of the facts from the judges extensive findings of fact and rulings of law that he read into the record,
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supplemented as appropriate by uncontroverted evidence in the record. See Ciampa v. Bank of Am., 88 Mass. App. Ct. 28, 29 (2015).
Williams was an author and filmmaker. He often approached Grieco, a successful businessman, and asked him to invest in his film projects, but Grieco declined. Griecos daughter was a reporter for the Gloucester Daily Times. She wrote a story about a surge in pregnant students at the high school. At his urging, Griecos daughter contacted Williams about turning the story into a film.
At a meeting to discuss financing the project, Williams told Grieco that he would need $900,000 to make the film, would hire Griecos daughter to work on the film, and agreed that he would pay any production costs that exceeded the initial investment. Williams thought the project could make $20-$30 million.
In July 2008, Grieco and Williams formed the LLC; they signed an operating agreement and a production agreement (collectively, contracts). The operating agreement provided that the LLC, was “to fund, invest in, and own” the film produced by Williams under the production agreement. The operating agreement also provided that the first $900,000 of income would be used to repay Griecos capital contribution, and that any further profits would be split equally between Grieco and Williams.
As relevant here, the production agreement
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-- a contract between the LLC and Williams -- provided that Williams would “create, write, direct, film, and produce the Project,” and that Grieco would invest $900,000 to be used by Williams “solely for the purpose of producing the Project.” Grieco wired the $900,000 to Williams. Shortly thereafter, Williams transferred most of the money to his personal accounts. He spent much of the money on personal expenses unrelated to the film.
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Production of the film was completed in April 2009. It was not a commercial success.
Procedural history. As relevant here, Grieco filed a complaint in the Superior Court, both individually and on behalf of the LLC, for breach of contract and breach of fiduciary duty. The judge found that the operating agreement and the production agreement were fully integrated documents and should be read as one contract. He further found that the contracts were clear and unambiguous, and that Williams breached the production agreement by spending in excess of $479,000 on personal expenses unrelated to production of the film. In the event that his finding that the contracts were unambiguous did not hold up on appellate review, the judge found in the alternative that the extrinsic evidence presented at trial demonstrated that Williams breached the contracts. He also found that Williams breached his fiduciary duty to the LLC.
Discussion. Williamss claims on appeal are limited to the two issues set forth in his brief: (1) that the judge erred in finding that the contracts were unambiguous, and (2) that it was error to rely on extrinsic evidence. We review the trial judges findings of fact for clear error and review de novo the judges rulings on questions of law. See Martin v. Simmons Props., LLC, 467 Mass. 1, 8 (2014).
As an initial matter, Williams misconstrues and misstates the judges findings of fact and rulings of law on a critical issue. Williams claims that it was error for the judge to rely on extrinsic evidence in determining the meaning of the production agreement because the judge found that the contracts were unambiguous. But this is not what the judge found. The judge found that in the event that the finding that the contracts were unambiguous was incorrect, the extrinsic evidence introduced at trial would nevertheless result in the same conclusion -- that Williams breached the contract.
Whether a contract is ambiguous is a question of law, not a question of fact. See Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 823 (2015). Our review is de novo. Id. Here, the judge found that the contracts “unambiguously distinguish between, on the one hand, costs incurred to produce the film, and on the other hand, costs incurred to distribute it.” He further found that the plain language of the production agreement required that the $900,000 be used “solely for the purpose of producing the Project.” The judge then found that Williamss significant spending on personal expenses and luxury items was a clear breach. Williams did not challenge this ruling. Instead, he claims that because the contract did not specify a particular remedy for a breach and did not address the obligations of the parties if Williams failed to use all of the investment funds to produce the film, it lacked an essential term and therefore was ambiguous. Put another way, Williams contends that because the production agreement did not specify the consequences of such gross expropriation of funds or what would occur if it cost less than $900,000 to produce the project, the judgment cannot stand. However, Williams did not raise these issues in the Superior Court, and accordingly, they are waived.
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See NES Rentals v. Maine Drilling & Blasting, Inc., 465 Mass. 856, 860 n.8 (2013); Jacobs v. Massachusetts Div. of Med. Assistance, 97 Mass. App. Ct. 306, 311 n.7 (2020).
Ultimately, the judge found against Williams on three alternative theories. As we have concluded, the ambiguity claim is waived. As a result, we need not reach the second theory -- the use of extrinsic evidence -- but we again note that the judge considered this evidence only in the event that his finding that the contract was unambiguous did not withstand appellate review. Williams fares no better on the third theory -- breach of fiduciary duty -- as, once again, he makes no argument on appeal that the judge erred in finding that he breached his fiduciary duty to the LLC. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) (“The appellate court need not pass upon questions or issues not argued in the brief”). See Zora v. State Ethics Commn, 415 Mass. 640, 642 n.3 (1993).
As is the case here, where a judgment rests on independent, alternative grounds, the defendant must address and prevail on both grounds in order to succeed on appeal. Cf. Marlow v. New Bedford, 369 Mass. 501, 507 (1976) (“There were two distinct, alternative grounds for the trial judges order for entry of judgment for the [plaintiff] ․ To succeed in [the] appeal, the [defendant] must prevail on both”). Williams failed to demonstrate reversible error on the judges findings on both the breach of contract and breach of fiduciary duty claims. See Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 629 (2010) (unnecessary to address malicious prosecution claim where it was substantially similar to abuse of process claim; abuse of process claim was affirmed, and damages under each claim were identical); VMark Software v. EMC Corp., 37 Mass. App. Ct. 610, 612, 625 (1994) (unnecessary to address contract based challenge to damage award where opposing party was entitled to same damages under alternative theory). Given that the damages for breach of contract and breach of fiduciary duty were identical “it is unnecessary to expound upon [Williamss] arguments against the judgment entered in favor of [the LLC] on its breach of contract ․ count[ ].” VMark Software, supra at 612. See Millennium Equity Holdings, supra. See also Marlow, supra at 507-508.
Appellate attorneys fees. The LLC seeks attorneys fees and costs incurred defending this appeal under G. L. c. 211A, § 15, and Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). “An appeal is frivolous ‘[w]hen the law is well settled, when there can be no reasonable expectation of a reversal ․’ ” Avery v. Steel, 414 Mass. 450, 455 (1993), quoting Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984). “The determination whether an appeal is frivolous is left to the sound discretion of the appellate court.” Avery, supra. As addressed supra, Williams misrepresented the judges ruling concerning the use of extrinsic evidence. And, when this error was highlighted in the LLCs brief, Williams filed a reply brief that was devoid of any correction. Moreover, he pressed this claim at oral argument despite the plain language of the judges findings of fact and rulings of law.
Consequently, we conclude that the appeal is frivolous. The LLC may submit a petition for appellate attorneys fees and costs, together with supporting materials to the clerk of this court within fourteen days of the date of this decision. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Williams shall then have fourteen days thereafter to respond. See id.
Judgment affirmed.
FOOTNOTES
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. The judge did not award damages to Grieco in his personal capacity. He did not appeal that ruling. The defendants counterclaims were dismissed as a sanction for “deliberate spoliation of potentially significant evidence.” As Williams did not make any arguments on this issue in his brief, we do not address it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
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. The judge did not issue written findings of fact or rulings of law. The parties provided a transcript of the rulings, which span seventy plus pages.
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. The production agreement referred to a contract between the LLC and John Michael Williams Productions. However, the judge found that “[a]lthough the contract refer[ed] to Mr. Williams as the Production Company ․ Mr. Williams entered into this contract as an individual.” This ruling was not challenged on appeal.
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. Williams spent approximately $600,000 on personal expenses including three cars, $41,000 in clothing and personal items, $35,000 towards personal debt, $18,500 for travel, $23,000 for landscaping and gardening at his home, $16,000 to pay house expenses, $6,000 in restaurant bills, and $5,500 for jewelry.
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. Additionally, Williams failed to cite any legal authority to support his claim that the lack of a remedy for breach requires a conclusion that the contract is ambiguous. As such, this argument does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (appellate court unable to consider issues that lack legal argument).