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A defendant against whom a plaintiff has obtained a judgment sometimes seeks indemnification from another person or business, attempting to pass the entire liability on the judgment to that other party.  However, indemnification is available only in very limited circumstances.

Consider, for example, a situation in which a convenience store is sued by a customer who was injured when she slipped on juice which apparently had leaked from a juice dispenser on the premises.  The store, takes the position that if it is liable to the customer, it should be indemnified by the juice distributor who owned and installed the machine, and was responsible for its maintenance.  However, the contracts between the store and the distributor do not expressly provide for indemnification.  Can the store shift its liability to the distributor?  Probably not.

In Araujo v. Woods Hold Martha’s Vineyard Nantucket Steamship Authority, 693 F.2d 1 (1982), the Court of Appeals for the First Circuit, applying Massachusetts law, explained that indemnification is available only in three situations:

Three different sets of circumstances may give rise to a right to indemnification. First, an express agreement may create a right to indemnification. Second, a contractual right to indemnification may be implied from the nature of the relationship between the parties…. Third, a tort-based right to indemnification may be found where there is a great disparity in the fault of the parties.

Id. at 2.  (Citation omitted).  See also Medeiros v. Whitcraft, 931 F.Supp. 68, 75 (D. Mass. 1996); United States v. Dynamics Research Corp., 441 F.Supp.2d 259, 267 (D. Mass. 2006); In re Access Cardiosystems, Inc., 361 B.R. 626, 647-48 (Bkrtcy. D. Mass. 2007).

None of those theories applies in the hypothetical described above. First, there was no express contract written or oral, relating to or providing for indemnification.

Second, no contractual right to indemnification should be implied.  “A contractual right to indemnification will only be implied when there are unique special factors demonstrating that the parties intended that the would-be indemnitor bear the ultimate responsibility for the plaintiff’s safety … or when there is a generally recognized special relationship between the parties.”  Medeiros v. Whitcraft, 931 F.Supp. at 75, quoting Araujo, 693 F.2d at 2-3.  See also Coons v. A.F. Chapman Corp., 460 F.Supp.2d 209, 223 (D. Mass. 2006), citing Samos Imex Corp. v. Nextel Communications, Inc., 20 F.Supp.2d 248, 250 (D. Mass. 1998); Dynamics Research, 441 F.Supp.2d at 267-68.  The vendor-purchaser relationship between the store and the distributor does not rise to the level of a special relationship.  In Coons, the District Court stated:

As to the existence of a special relationship, Chapman neither identifies nor suggests the presence of a special relationship between Industrial and Chapman. See, e.g., Medeiros v. Whitcraft, 931 F.Supp. 68, 75 (D.Mass.1996) (allowing summary judgment on indemnity inasmuch as the party seeking indemnity “neither alleged any facts, nor offered any evidence, to even suggest … that any ‘special relationship’ exists between the parties”). …  Furthermore, the case law does not support the existence of such a relationship under the circumstances. See, e.g., Oates v. Diamond Shamrock Corp., 23 Mass.App.Ct. 446, 503 N.E.2d 58, 59-60 (1987) (defendant retailer not entitled to indemnification from co-defendant manufacturer inasmuch as there is no special relationship between the parties); Myrtle Beach Pipeline Corp. v. Emerson Electric Co., 843 F.Supp. 1027, 1064 (D.S.C.1993) (“courts have uniformly held that this vendor-vendee relationship does not constitute a ‘special’ or ‘unique’ circumstance justifying implied contractual indemnity”). Summary judgment on counts III and IV is therefore warranted.

460 F.Supp.2d at 224.  (Emphasis added).

Finally, there is no basis for common law (a/k/a “tort based”) indemnification of the store by the distributor.  With very rare exceptions, common law indemnification is available only when the party seeking indemnity is liable only vicariously or derivatively, and was not personally at fault for the plaintiff’s injuries.  Fireside Motors, Inc. v. Nissan Motor Corp. in USA, 395 Mass. 366, 369 (1985). (“At common law a person may seek indemnification if that person ‘does not join in the negligent act but is exposed to derivative or vicarious liability for the wrongful act of another’”).  See also Thomas v. EDI Specialists, Inc., 437 Mass. 536, 538 n.1 (2002).

In Medeiros, the court stated:

the tort-based theory of indemnification is “[d]esigned to shift the whole loss upon the more guilty of the two tortfeasors … [and] has usually been available only when the party seeking it was merely passively negligent while the would-be indemnitor was actively at fault. ‘Passive negligence’ has been limited to instances in which the indemnitee was vicariously or technically liable. Where the party seeking indemnification was itself guilty of acts or omissions proximately causing the plaintiff’s injury, tort indemnification is inappropriate.”

931 F.Supp. at 75-76.  See also Coons, 460 F.Supp.2d at 224.  (“indemnity … permissible where the person seeking indemnification did not join in the negligent act of another but was exposed to liability because of that negligent act. … The general rule, however, is that a person who negligently causes injury to a third person is not entitled to indemnification from another person who also negligently caused that injury.” (Internal quotation marks omitted)).[1]

In our hypothetical, the store, if liable to the customer at all, is liable for its own negligence in failing to maintain a safe premises, not derivatively or vicariously for any negligence of the distributor.  Tort based indemnity is therefore, not available.[2]

Whenever a defendant seeks to shift all liability to another, the claim should be carefully analyzed to determine whether the facts of the case fit within any of the limited situations in which indemnification is available.

[1] In rare circumstances the Massachusetts courts will grant tort-based indemnification to a party who has some fault, where that party’s fault is insignificant compared to the fault of the party from whom indemnification is sought.  It appears, however, that this differing degree of fault indemnification is very difficult to obtain.  Rathbun v. Western Massachusetts Electric Co., 395 Mass. 361 (1985).  This exception to the general rule requiring vicarious liability is discussed in more detail here.

[2] Medeiros, 931 F.Supp. at 76 (“In order to be held responsible for any damages in the instant case, the jury would of necessity have to find that E.T. & L. was itself negligent. Put another way, E.T. & L. could not be held vicariously liable for any acts or omissions of Fellows/Whitcraft, but rather only for its own independent negligence, if any. There quite simply is no relationship between the third-party plaintiffs and the third-party defendant, i.e., agent and principal, such as would give rise to any vicarious or derivative responsibility one for the other. Because E.T. & L. would have to be an active wrongdoer, independently negligent in order to be found liable, a tort-based claim for indemnification is precluded.”).

A defendant against whom a plaintiff has obtained a judgment sometimes seeks indemnification from another person or business, attempting to pass the entire liability on the judgment to that other party.  In the absence of an express contractual right to indemnity, or a special relationship justifying between the parties, only a tort-based, so-called “common law” indemnity is allowed.  (For a more general discussion of the three types of indemnity, click here).

However, that tort-based indemnification usually requires that the party seeking indemnification be entirely fault free and liable to the plaintiff only vicariously or derivatively (as where an employer had no involvement in the torts of its employee but is liable solely due to the agency relationship).  But what if the party seeking indemnity, although slightly at fault, is far less at fault than the person from whom indemnification is sought?  Is such a person barred from receiving indemnity despite the great disparity in fault?

Although the answer is not entirely free from doubt, it appears that, in very rare circumstances, the Massachusetts courts will grant tort-based indemnification to a party who has some fault, where that party’s fault is insignificant, compared to the fault of the party from whom indemnification is sought.

In Rathbun v. Western Massachusetts Electric Co., 395 Mass. 361 (1985), the Court noted that in rare circumstances, a party at fault can obtain tort-based indemnification.  The Court stated:

The general rule is that a person who negligently causes injury to a third person is not entitled to indemnification from another person who also negligently caused that injury. Indemnification has been permitted, however, where the person seeking indemnification did not join in the negligent act of another but was exposed to liability because of that negligent act. Sometimes the successful indemnitee in such a situation is said to have been only “constructively” rather than “actually” negligent or to have been “derivatively” or “vicariously” liable rather than “directly” liable. These are distinctions that characterize the result in a case but hardly assist in reaching that result. Only in exceptional cases, however, has indemnity been allowed to one who was not free from fault….

The number of instances in which this court has allowed indemnity to a negligent indemnitee is small…. Probably no instructive general rule can be stated as to when indemnity will or will not be allowed to a negligent person…. In those cases in which indemnity has been allowed to a negligent indemnitee, the indemnitee’s negligence has been insignificant in relation to that of the indemnitor.

Id. at 364. (Emphasis added, footnote references omitted).  See also Economy Engineering Co. v. Commonwealth, 413 Mass. 791, 794 (1992) (“This is not one of those rare cases where the fault of one joint tortfeasor (the Commonwealth) is so slight as to grant it rights of indemnity against another joint tortfeasor.”); Ford v. Flaherty, 364 Mass. 382, 385 (1973) (“In a few cases indemnity has been allowed to persons who were not free of fault, but the facts and reasoning of those exceptional cases are not apposite here.”); American Ins. Co. v. Siena Const. Corp., 2007 WL 3317801, *5 n.7 (Mass. Super. 9/28/07) (“Only in rare instances, none of which exist here, has indemnity been allowed to one who is not free from fault”); Davis v. 575 Worcester Road, LLC, 2007 WL 5086368 (Mass. Super. 5/16/07) (“In rare cases where the fault of one joint tortfeasor is so slight as compared with another, common law rights of indemnity against another joint tortfeasor may be granted.”); Commonwealth v. JEMS of New England, Inc., 2002 WL 1839253, *3 (Mass. Super.  7/25/02); Demers v. Levine, 2001 WL 170994, *2 (Mass. Super. 1/31/01); Araujo v. Woods Hole, Martha’s Vineyard, Nantucket Steamship Authority, 693 F.2d 1, 3 (1^st Cir. 1982); Alexander, Nicholas, “Developments in Indemnity Law: Express, Implied Contractual, Tort-Based and Statutory”, 79 Mass. L. Rev. 50, 57 (1994).

In Knapik v. American Title Ins. Co., 1994 WL 878795, *2 (Mass. Super. 10/5/94), the Court stated:

To establish a claim for tort-based indemnity, Elander must be able to satisfy one of two recognized tests: the “vicarious and derivative” test or the “differing degree of fault” test….

The differing degree of fault test allows indemnity between tortfeasors if the indemnitee can both present a prima facie claim of liability against the indemnitor (usually judicially determined) and demonstrate a virtual lack of culpability by the indemnitee. See id. at 57. Although this test does not require a preexisting relationship between Carolina and Elander, the allegations in Elander’s third-party complaint do not satisfy either prong of this test.

1994 WL 878795, *2. (Emphasis added).

In Homart, the Court stated:

The general rule for tort-based indemnification is that indemnity is permitted where one party does not join in the negligent act but is exposed to derivative or vicarious liability for the wrongful act of another…. Courts have indicated, however, that in rare cases, the fault of one joint tortfeasor may be so slight as to grant it rights of indemnity against another joint tortfeasor….

Homart alleges that it had no involvement in or responsibility for the deposit of the asbestos-laced debris at Ternberry Estates, but that Ternberry knowingly purchased and utilized said debris as landfill at a financial profit. While the circumstances under which a negligent party may recover indemnification from a joint tortfeasor are indeed rare, this Court cannot say beyond doubt, based solely on the pleadings, that Homart is not entitled to relief under such a theory. Accordingly, Homart’s motion to dismiss Count XX of the second amended third-party complaint must be denied.

1997 WL 124103, *5-6.  (Emphasis added).

In his article, Alexander explains,

The vicarious and derivative test is not the only tort-based indemnity test created by Hollywood Barbeque. Over the years, Hollywood Barbeque has also been frequently cited as authority for allowing tort-based indemnity between tortfeasors. The case stands for the proposition that under certain circumstances a remotely responsible tortfeasor can claim indemnity from a predominantly responsible tortfeasor.

***

Clearly defined guidelines stating the extent of the disparity of fault necessary to satisfy the test do not exist. However, prevailing indemnitees present (1) a prima facie claim of liability against the indemnitor, usually judicially determined and (2) a near absence of any culpability on the part of the indemnitee….

Unlike vicarious and derivative type tort-based indemnity, the disparity of fault type does not require a preexisting relationship between putative indemnitor and indemnitee. ….

(Emphasis added, footnote omitted).

It should be noted that some Massachusetts courts have questioned the continued vitality of the differing degree of fault basis for common law indemnity.  Fraco Products, LTD v. Bostonian Masonry Corp., 84 Mass. App. Ct. 296 (2013).  See also Cartagena, 2002 WL 1283669, *3-4.  In Fraco, the Appeals Court stated:

Citing Rathbun v. Western Mass. Elec. Co., 395 Mass. 361, 479 N.E.2d 1383 (1985), Fraco argues in the alternative that further fact finding is necessary because if its own negligence (if any) were determined to be de minimis as compared to that of Bostonian, Fraco would be entitled to common-law indemnification under a “differing degree of fault” theory. In Rathbun, the Supreme Judicial Court noted that in rare exceptions, indemnification has been allowed to a joint tortfeasor….

Fraco contends that under the aforementioned language in Rathbun, Fraco would be entitled to common-law indemnification from Bostonian if Fraco’s fault is relatively insignificant in relation to that of Bostonian. Even assuming the continuing vitality of the differing degree of fault theory—an assumption which can be fairly questioned—we are unpersuaded by Fraco’s argument. Although the Supreme Judicial Court has adverted to the differing degree of fault theory in two modern decisions, see Rathbun, supra and Economy Engr. Co. v. Commonwealth, supra, in neither case was indemnification allowed. Moreover, a review of the cases cited in Rathbun reveals only one case, more than a century ago—before the existence of statutory contribution and workers’ compensation—in which the court allowed indemnification to one of two joint tortfeasors based on differing degrees of fault. See Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 236–237, 59 N.E. 657 (1901). Further, as the court indicated in Rathbun, indemnification between joint tortfeasors based on relative fault would seem functionally indistinguishable from contribution based on degree of fault, an approach the Legislature expressly precluded in G.L. c. 231B, § 2(a )…. Similarly, allowing for recovery based on differing degrees of fault in cases where, as here, the third-party defendant-employer has already paid workers’ compensation (a circumstance not considered in Rathbun or Economy Engr. Co.) would conflict with the policy behind the exclusivity provision of the workers’ compensation statute, G.L. c. 152, § 23. Accordingly, the trial judge correctly entered summary judgment on behalf of Bostonian, denying Fraco’s request for common-law indemnification.

84 Mass. App. Ct. at 304-05.  (Emphasis added).  The Court in Cartagena v. Lotus Development Corp., 2002 WL 1283669, *3-4 (Mass. Super. 6/3/02), also questioned whether the vitality of the degree of fault ground for common law indemnity, but felt bound by precedent to deny the indemnitor’s motion for partial summary judgment.  The Court stated,

A review of the cases cited in Rathbun reveals only one case in which the Court allowed indemnification to one of two joint tortfeasors, both of whom had been held liable for negligence, based on differing degrees of fault. See Boston Woven Hose and Rubber Company v. Kendall, 178 Mass. 232, 236-237 (1901). The facts there were remarkably similar to those presented here, considered in the light most favorable to Lotus, although the statutory context was significantly different, in that neither worker’s compensation nor statutory contribution yet existed.

***

Thus, although the Supreme Judicial Court has acknowledged the existence of the theory on which the plaintiff relies in at least two modern decisions, Rathbun and Economy Engineering Co. v. Commonwealth, 413 Mass. at 794, it appears to have actually applied that theory to approve an award of indemnification only once, a full century ago, before the existence of statutory contribution. In light of this history, one could fairly question the continued viability of the theory.

Nevertheless, based on the quoted language in Rathbun, at least two Superior Court decisions have denied pre-trail motions seeking dismissal of indemnification claims asserted on a theory of differing degrees of fault. See Commonwealth v. Homart Development Co., No. 95-2280B, 1997 WL 124103 (Mass.Super.Ct.1997) (Doerfer, J.); Knapik v. American Title Insurance Co., No. 922088, 1994 WL 878795 (Mass.Super.Ct.1994) (Butler, J.). This Court is obliged to do the same. It is not the role of this Court to declare moribund a doctrine that the Supreme Judicial Court appears to consider still in existence, albeit only for exceptional cases. Nor, on the record presented at this stage, can the Court determine that the facts developed at trial could not prove this case to be exceptional in some manner not presently apparent, such that the doctrine might have proper application.

2002 WL 1283669, *3-4.  (Emphasis added).

Based on the forgoing, it appears that despite doubts expressed by some courts, the Supreme Judicial Court decisions in Rathbun, Economy and Ford remain good law and that common law indemnity based on differing degrees of fault remains a viable argument.  A claim for indemnification should, therefore, be considered by a defendant who is only minimally at fault, where another defendant was significantly more to blame.

A recent decision of the Massachusetts Appeals Court arguably expands the “mode of operation” approach, a theory by which a slip and fall plaintiff can hold a commercial property owner liable for damages.  In Bowers v. P. Wile’s, Inc., 87 Mass. App. Ct. 362, 30 N.E.3d 847 (2015), the Court clarified that application of the mode of operation approach is not limited to cases where the dangerous condition causing the plaintiff’s accident resulted from breakage or spillage of items the defendant store is offering for sale.

The traditional premises liability rule.

Under traditional premises liability rules, where a foreign substance causes a plaintiff invitee’s slip and fall accident, the plaintiff can establish negligence on the part of the business owner in one of three ways: (1) by proving that the defendant caused the substance to be there; (2) by proving that the defendant had actual knowledge of the existence of the foreign substance; or (3) by proving that the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.  If, under (2) or (3), above, the owner knows or should know of the dangerous condition, then the plaintiff must also show that the owner should have expected that invitees would not discover the danger or protect themselves from it, and that the owner failed to exercise reasonable care to protect invitees from the danger.

The Sheehan decision.

In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007), the Supreme Judicial Court adopted the so-called “mode of operation” approach, which focuses on whether the nature of the defendant’s business gives rise to a substantial risk of injury to customers. Under this approach, where a store owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner can be held liable for injuries to a customer if the customer proves that the owner failed to take all reasonable precautions necessary to protect customers from these foreseeable dangerous conditions.

The Sheehan Court held that the defendant supermarket’s use of a self-service mode of operation (in which customers select their items from the shelves rather than being waited on by store personnel) created the foreseeable risk that products would end up on the floor, posing a danger to customers who might be distracted by the store’s attractive displays of products. The plaintiff in Sheehan had slipped on a grape which had fallen to the floor in the self-service produce section of the store.

According to the Sheehan Court, the mode of operation approach does not eliminate the requirement that the store owner knows or should know of the presence of the foreign substance on the floor prior to the accident. However, notice is presumed where the owner knows or should know that its very method of operation is likely to cause such dangers. The plaintiff is relieved of the burden of proving notice by, for example, showing how long the foreign substance has been on the floor. The plaintiff is still required to show that the accident was caused by a foreign substance or other dangerous condition and that the store failed to take reasonable measures, commensurate with the dangers of self-service, to make the store safe for patrons. The plaintiff must also show that the dangerous condition was caused by the self-service mode of operation and not by other causes (e.g. a fall caused by a newly waxed floor).

The mode of operation approach could, theoretically, apply whenever a defendant’s method of doing business poses foreseeable dangers to customers.  Indeed, the Sheehan Court made clear that the rationale supporting the mode of operation approach “was based on the foreseeable likelihood that hazards could result from the owner’s self-service mode of operation, and that such ‘ conditions may include, but are not limited to, spilled foreign substances or fallen matter.’”  Bowers, 30 N.E.3d at 851, quoting Sheehan, 448 Mass. at 786 n.6.  Nevertheless, until recently, the courts have applied the mode of operation approach only in cases where defendant businesses were self-service establishments similar to supermarkets and the hazard was caused by the breakage or spillage of items which the defendant store was offering for sale.

The Bowers decision.

The plaintiff in Bowers was a customer who fell after stepping on a small river stone which was on the sidewalk after it had been moved from an adjacent gravel area maintained by the defendant store.  The sidewalk ran parallel to the store front and the gravel area was a strip, also parallel to the store front and located between the store and the sidewalk.  Between the gravel area and the front wall of the store was a porch area.  There was evidence that the store displayed merchandise on the porch and in the gravel area, and allowed customers to help themselves to products from those areas.  In other words, the store operated on a self-service basis in those areas.

It was a common occurrence for stones from the gravel area to be moved, by customer foot traffic or other causes, from the gravel area to the sidewalk.  Store personnel were aware of this fact and, when outside the store for other reasons, would look for stones on the sidewalk and kick them back onto the gravel area.  However, the store had no formal schedule for inspections of the sidewalk.

The trial court judge granted the store’s motion for summary judgment, “based on his view that the mode of operation approach applies only where the dangerous condition results from breakage or spillage of items offered for sale.”  Bowers, 30 N.E.3d at 848.  However, the Appeals Court reversed, holding that the mode of operation approach is not so limited in its application.  The Court explained,

We acknowledge that Sheehan, supra at 781, 863 N.E.2d 1276, itself, involved an injury caused by an item (a grape) that apparently fell from a self-service display to the supermarket floor before a customer slipped on it. However, under the rationale supporting the mode of operation approach, it should not matter whether the item that migrates from the self-service display to the floor (thereby causing a slipping hazard) is a grape or a quantity of shaved ice from the bed keeping the grapes cool. The distinction drawn by the motion judge between items offered for sale and other hazards foreseeably occurring as a result of the store’s use of a self-service mode of operation accordingly should make no difference in the applicability of the mode of operation approach. Moreover, as we have observed, the Supreme Judicial Court explicitly cautioned that its adoption of the mode of operation was not limited to “spilled foreign substances or fallen matter.” Sheehan, 448 Mass. at 786 n. 6, 863 N.E.2d 1276.

Returning to the facts of the instant case, … it is undisputed that the gravel area, the source of the stone causing the plaintiff’s injury, was a self-service area used for the display and sale of store merchandise, including large items, the manipulation of which foreseeably could (and often did) cause stones to move onto the sidewalk, creating a risk of tripping or falling. In our view, it is accordingly an appropriate circumstance for application of the mode of operation approach.

Bowers, 30 N.E.3d 847 at 852-53.

Having concluded that the mode of operation approach applied, the Appeals Court noted that there remained a factual dispute as to whether, in light of the risks posed by its mode of operation, the store had failed to take reasonable steps to prevent the accident that occurred.  It therefore reversed the summary judgment for the store and sent the case back to the trial court.

The Bowers decision expands the reach of the mode of operation approach.  By making clear that the dangerous condition leading to a plaintiff’s injury may be any condition foreseeably occurring as a result of the store’s use of a self-service mode of operation, and is not limited to the presence of store merchandise on the floor, the Bowers decision makes it easier for more plaintiffs to recover compensation.

This article appears as published in the January 22, 2015, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

Having drafted an effective statement of issues (the subject of my Aug. 18, 2014, column), your next task is to present the facts of the case.

How you present the facts in your appellate brief can be at least as important as your legal analysis. A skillfully drafted factual section will both establish your credibility in the eyes of the court and tell a compelling story, leading the judges to view the case from the perspective most favorable to your client and making them more receptive to the legal positions you take in the argument section.

The statement of the case section of your brief should have three subsections: the nature of the case, the course of proceedings below, and the relevant facts.

Nature of the case

The nature of the case subsection should offer a very short, general description of the dispute between the parties and your view of the issues on appeal.

Course of proceedings below

The course of proceedings below is a procedural history of the case, nothing more, with appropriate citations to the record (i.e., to the appendix). It should include all procedural events that are relevant to the appellate issues, but should omit events that are not relevant. Accordingly, if the critical issues on appeal deal with evidentiary rulings at trial, there is no need to refer to most pre-trial events.

While it usually makes sense to set forth the events below in chronological order, it is not required. In certain cases, when a procedural event or ruling gives rise to the central issue on appeal, it may make more sense to start the proceedings below section with that critical event.

Relevant facts

In the relevant facts section, you present in a neutral, non-argumentative tone all the facts relevant to the issues on appeal. If you prepared a summary of the record while reviewing it in preparation for drafting the brief, that summary can provide an initial draft of the relevant facts section.

Your relevant facts section has two primary goals: (1) to develop and maintain your credibility; and (2) to present the facts in such a way that the judges finish reading them with the sense, if you represent the appellant, that the trial court erred in a way that needs to be corrected or, if you represent the appellee, that no reversible error occurred below.

Maintaining credibility is essential. If the judges conclude that they cannot trust your presentation of the facts, they are much less likely to trust the law you present and the arguments you make in the argument section of your brief. To build credibility in your relevant facts section:

• Maintain a neutral tone and avoid presenting the facts in an overtly argumentative manner;
• Include only facts that are in the record (i.e., that were presented to the trial court);
• Be honest and complete. Include all relevant facts, whether they help your case or damage it. In addition to ethical concerns, omitting negative facts is counterproductive as it offers the opposing party an opportunity to attack your honesty;
• Cite meticulously to the record. Every factual statement should be followed by a citation to the appendix. If you convince the judges and their clerks that your citations are reliable, they will be more likely to use your brief as a reference document.

Your other goal, of course, is to structure this presentation so as to persuade the Appeals Court to rule in your client’s favor. Use this section to tell the judges a story, explaining the case from your client’s perspective and personalizing your client when possible. Usually, a chronological structure will work best for this narrative.

As the name of the subsection implies, you must include all relevant facts. Think ahead to your argument section. Any fact on which your argument will rely must be included in your relevant facts section. Strictly speaking, if a fact is not relevant to any of the appellate issues, and is not necessary to an understanding of the relevant facts, you can omit it. However, some facts that are not technically relevant will still contribute to the “story” you are trying to tell.

Like the statement of issues, while maintaining a neutral tone, you should craft your relevant facts section to stress facts favorable to your case and diminish facts that harm it. Ways in which that can be accomplished include:

• Placing positive facts near the beginning or end of paragraphs and sentences within paragraphs, while burying negative facts in the middle of paragraphs and sentences;
• Linking any negative facts to the circumstances that explain them;
• Placing paragraphs containing negative facts between paragraphs containing positive facts;
• Using active voice for positive facts (“Jones applied the brakes”) and passive voice for negative facts (“the brakes were applied by Jones”);
• Placing negative facts in subordinate clauses of sentences.

I offer the following additional suggestions:

• Use specific dates only when they are relevant (e.g., to a statute of limitations issue). Unnecessary dates distract the reader;
• Use subheadings within your relevant facts section. They help the reader navigate complex facts and also will appear in your table of contents, allowing it to serve as a summary of the facts and argument;
• Do not refer to the parties as appellant and appellee. Instead, use names that help the reader remember who is who (e.g., “Brown” and “the Company”);
• Use short quotations from the record, but avoid long quotes that will lose the reader’s attention;
• Revisit your relevant facts section after you finish drafting the argument section of your brief. Often, as the argument section becomes more developed, it may come to rely on facts that you did not initially include in the relevant facts.

Devote the time necessary to drafting an effective statement of relevant facts. By presenting the judges with a compelling story, and offering them the facts in the form most favorable to your client, you increase the likelihood that they will be receptive to your legal arguments.

My next column will focus on how to make those arguments clear and persuasive. 

This article appears as published in the August 18, 2014, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

My last column concerned how to ensure that a brief complies with the appellate rules. Here, the topic is the importance of drafting a clear and persuasive statement of issues.

A carefully drafted statement of issues is critical to the success of your appellate brief. An Appeals Court judge probably knows little if anything about your case before reading the briefs and is likely to go to those sections that provide an overview of the nature of the appeal, how the appellant claims the trial court erred, and what relief the appellant is seeking from the Appeals Court.

Accordingly, a judge may look at the statement of issues first.

Because your statement of issues may be the judge’s point of entry to your brief, it is very important that it clearly explains what the case is about. Care should also be given to choosing which issues, and how many, to appeal.

I recommend that you draft your statement before writing other portions of the brief. Having forced yourself to clearly identify and concisely explain the legal issues, you will be better prepared to decide which facts are relevant to those issues and should be included in your statement of relevant facts.

You also will have a better sense of how to structure the argument section of the brief to address those issues while ignoring irrelevant issues.

Form and clarity

Each issue should be stated in not more than one relatively short paragraph. Although many issues can be summed up in a single sentence, sometimes two or three sentences explain the issue more clearly.

Your appellate issues always should be stated as questions that can be answered “yes” or “no.”

I often begin an issue with “Whether …”, but other formulations (“Did…”, “Was…”) also work well. Unless there is good reason not to, the issue should be phrased so that the court can rule in your client’s favor by answering the question “yes.”

The issue must always be phrased in a neutral, non-argumentative way. Moreover, it should include the relevant facts, both those favorable and unfavorable to your case.

Consider, for example, a case in which the issue is whether an owner of property containing a swimming pool is liable under the child trespasser statute, G.L.c. 231, §85Q, for the death of a 17-year-old trespasser who drowned in the pool.

The primary defense is that the teen was old enough to discover and appreciate the risk posed by the pool. The issue of “whether the pool owner is liable under c.231, §85Q” is not nearly as good as one that includes the critical facts. The appellee pool owner might better state the issue as:

“Whether the pool owner is liable under c.231, §85Q, where the child trespasser was 17 years old, the pool was surrounded by a locked, 10-foot fence, and the pool contained no hidden dangers, although the pool area was unlit and unguarded.”

As that example demonstrates, you can stress favorable facts (e.g., by placing them near the beginning of the issue) and minimize unfavorable facts (e.g., by placing them later or by putting them in a subordinate clause).

It is often useful to incorporate the applicable standard of review in an issue. Thus, instead of asking whether the trial court erred when it excluded scientific expert testimony, ask whether the court abused its discretion in doing so.

Choice of issues

Although the trial court record may present many possible appellate issues, you should limit the appeal to issues that offer your client a realistic chance of success.

Given that only about 14 percent of appeals result in reversal, there are relatively few truly reversible errors. Thus, it is unlikely that you would have one, much less four, seven or 10 in your case.

Including a large number of issues can be detrimental. You should not waste the limited pages of an appellate brief making arguments that are predestined to fail. Further, pursuing weak arguments undermines your credibility and may reduce the effectiveness of an otherwise strong brief.

Be selective

Consider the strength of your argument on each issue, both factually and legally. Investigate whether each potential issue was properly preserved for appeal (e.g., by objection at trial).

Also take into account the applicable standard of review. An issue subject to de novo review is more likely to succeed than one for which the standard is abuse of discretion.

A carefully drafted statement of issues introduces the Appeals Court judge to your case and provides a context for the facts and the law you present in later sections of the brief. The issues provide the lens through which the judge views those facts and arguments.

My next column focuses on how to present the facts, telling a story that convinces judges to rule for your client.

This article appears substantially as published in the June 16, 2014, issue of the Massachusetts Lawyers Weekly, but has been edited to reflect later changes in applicable rules. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

Having completed your research and other preparations, you are now ready to begin drafting a concise and compelling appellate brief.  Before you start typing, however, review the Massachusetts Rules of Appellate Procedure and Appeals Court Standing Orders, which contain detailed requirements for the form and content of appellate briefs and appendices.

Because rules can change, you should consult them each time you draft an appellate brief.  It would be unfortunate to find out after completing your brief that it fails to comply with Appeals Court requirements.

Formatting.

Make sure that the margins, font, line spacing and other attributes of your document comply with Mass. R. App. P. 20(a), which governs the formatting of appellate briefs.  Rule 20 requires:

• Paper:  Standard 8.5 x 11 inch paper should be used.
• Binding:  Pages should be bound on their left side.
• Margins:  The top and bottom margins should be 1 inch, while the left and right margins should be 1.5 inches, so that the text area is 5.5 by 9 inches.  Page numbers can appear in the margin.
• Typeface:  A mono-spaced font such as pica or courier should be used.  Type for both text and footnotes should be 12 point with character spacing such that no more than 10.5 characters fit within one horizontal inch.
• Spacing:  Text should be double-spaced except for footnotes, headings and indented quotations.
• Printing on both sides of pages is allowed.
• Cover colors:  appellant’s brief – blue; appellee’s brief – red; reply brief – gray; intervenor/amicus brief – green.
• Information on cover of brief:  The cover should contain the name of the court, the case number, the title of the case (e.g. Jones v. Smith), the nature of the proceeding, the name of the lower court (e.g. “On appeal from a judgment of the Suffolk Superior Court”), the title of the document (e.g. “Brief for the Appellant”) and the name, Board of Bar Overseers number, firm name (if any), address, telephone number and email address of counsel.

Also keep in mind the length limitations for primary and reply briefs set forth in Rule 16(h):  Primary briefs cannot exceed 50 pages, exclusive of tables and addenda.  A reply brief cannot exceed 20 pages.

Major headings.

Next, create major headings that correspond to the sections of the brief required by Rule 16(a).  For the appellant, these include:

• A corporate disclosure statement, if applicable, must appear in the brief, prior to the table of contents, even if it was previously filed separately.
• A table of contents and a table of authorities, including sub-headings for cases, statutes and other authorities.
• A statement of the issues presented for review.
• A statement of the case, including (1) the nature of the case, (2) the proceedings below and its disposition in the lower court, and (3) a statement of relevant facts, with appropriate references to the record.
• In a brief with more than 24 pages of argument, a short summary of argument.  I recommend including such a summary in all briefs.
• The argument: within the argument section, insert headings for each appellate issue and subheadings which you drafted based on your research (headings and subheadings will be discussed more fully in a future column).
• A conclusion stating the precise relief sought.
• The printed names, BBO numbers, addresses, telephone numbers and email addresses of individual counsel, and, if an individual counsel is affiliated with a firm, the firm name.
• The Rule 16(k) certification:  Rule 16(k) requires that the brief contain a certification of counsel that the brief complies with all rules governing briefs;  the certification should appear on the last page of the brief.
• An addendum, containing:  (1)  the decision, findings, etc., pertinent to the issue on appeal and (2) copies of statutes, rules or regulations cited but not otherwise reproduced in the appellant’s brief; the addendum should have its own table of contents and should be consecutively paginated.

The appellee’s brief should contain the same sections but need not include the conclusion or a statement of the issues or of the case unless the appellee is dissatisfied with the statements of the appellant.

Inserting all of the required section headings at the outset helps ensure that you won’t forget a required section.

Certificate of service.

When filed, your brief should be accompanied by a separate certificate of service.  The court prefers a separate document to a certificate appearing as part of a document.  Both appellant and appellee must serve two copies of their briefs on each party separately represented.  The appellant must also serve two copies of the appendix (unless fewer are allowed by Rule 18(e)).

Filing.

Both appellant and appellee must file four paper copies of their briefs with the Appeals Court clerk.  The appellant must also file four paper copies of each volume of the appendix (unless fewer are allowed by Appeals Court Standing Order).  In the alternative, briefs and appendices in many cases can be electronically filed through the Appeals Court’s Odyssey File and Serve site.  Information about e-filing may be obtained here.

Having ensured compliance with the appellate rules, you are now ready to draft a clear and persuasive brief.  That process begins with a statement of issues on appeal, which will be the subject of my next column.

Updated: January 20, 2017.

Suppose you gave Bill Gates $1,000 to help him start a small company in his garage.  When that company turned out to be Microsoft, you would prefer that the money be treated as an equity investment, so that you could share in the increased value of the company, instead of a loan, in which case you would only be entitled to repayment of the $1,000 principal.  On the other hand, imagine that you are a part owner of a company that is having cash flow problems.  You provide money to help pay its debts but it later declares bankruptcy.  In that case, you would prefer that your contribution be deemed a loan, because such loans are paid off in full before shareholders of a bankrupt company receive anything.  The proper characterization of funds provided to corporations, as debt or equity, is a recurrent subject of litigation.

A. Hypothetical.

Greensleeves, Inc. is an environmentally aware business specializing in the production of formal wear made entirely of plant foliage.   Abe and Alice are short on money to start Greensleeves.  Having failed to obtain loans from two banks, they approach Jackson Banana Plantations for help in funding the new company.  Jackson agrees to do so, anticipating that Greensleeves would purchase a great number of its, until then, useless banana leaves.  Without the money provided by Jackson, Greensleeves would not have been able to cover its operating expenses.

It is agreed that Jackson would own 40% of the Greensleeves stock.  However, because Jackson wants to conceal its involvement with Greensleeves, it is further agreed that the funding will be provided in the form of personal loans to Abe and Alice, evidenced by demand promissory notes.  All stock will be held by Abe and Alice, but they agree, on demand, to transfer 40% of the stock to Jackson.

Correspondence between the parties sometimes refers to the Jackson funding as loans, but at other times makes clear that the stock in Greensleeves being held by Abe and Alice is actually owned by Jackson.  Jackson never demands payment of any of the notes and no payments are ever made.

After a dispute between the parties, Greensleeves attempts to terminate its relationship with Jackson.  Jackson demands transfer of the stock, but Greensleeves refuses to make the transfer.  Letters from attorneys ensue.

Jackson files suit demanding full repayment of all of the “loans” it had made to Greensleeves by the demand notes.  Greensleeves responds that the so-called loans are, in fact, equity investments; and are nearly worthless as Greensleeves is close to insolvent, its banana leaf undergarments having failed to generate much consumer interest.  The Court must decide whether the Jackson funding was debt or equity.

B.   Massachusetts law.

Massachusetts cases identify a number of factors which a court should consider when determining whether a purported loan is, in reality, a capital contribution (equity investment).  In Yankee Microwave, Inc. v. Petricca Communications Systems, Inc., 53 Mass. App. Ct. 497 (2002), the Massachusetts Appeals Court recharacterized as capital contributions alleged loans made by shareholders to their corporation, holding that repayment of those “loans” prior to payment of the company’s other creditors was, therefore, fraudulent.  Emphasizing the corporation’s initial undercapitalization, the Yankee Court stated:

“Whether an advance should be treated as a capital contribution to, rather than creating a debt of, the bankrupt depends to some extent on the objective intention of the contributor, and in part on whether, in particular circumstances, equitable considerations require treatment of the advance as a capital contribution.” Where a corporation is formed with initial capital that is grossly inadequate to the purposes of the corporation’s business, requiring immediate shareholder loans in order to operate, shareholders’ so-called debt should be treated as equity capital, and given no preference over creditors in the distribution of assets…. We think that where the loans are indeed a substitute for capital to the extent necessary to the operation of the business, they must be treated as capital and be subordinate to claims of creditors….  Here, … careful scrutiny … leaves no doubt that these loans from Basil and Robert were in effect capital contributions.

Id. at 522-23.  (Emphasis added, citation omitted, footnote references omitted).  See also, Buchanan v. Warner, 2006 WL 4119791, *9 (Mass. Super. 11/8/06); TLP Leasing Programs, Inc. v. Northern Light Tech. LLC, 2005 WL 3605414, *1 (Mass. Super.  11/1/05); Garvey v. Lemle, 2005 WL 2009552, *8 (Mass. Super. 7/29/05); Milliken & Co. v. Duro Textiles, LLC, 2005 WL 1791562, *13 (Mass. Super. 6/10/05); American Twine Limited Partnership v. Whitten, 392 F.Supp.2d 13, 21-22 (D. Mass. 2005).

In Overnight Transportation Co. v. Commissioner of Revenue, 54 Mass. App. Ct. 180 (2002), the Appeals Court noted additional factors indicating that a loan is really a capital contribution, holding that, for tax purposes, a promissory note in favor of the corporate taxpayer’s parent company was not a true debt such that interest on the note would qualify as a deductible expense.  According to the Court, the fact that the company lacked the resources to pay back the alleged loan, and that repayment was, therefore, dependent “upon the success of the recipient corporation, … suggests that the amounts were in fact an equity investment.”  The Overnight Court explained that a “person ordinarily would not advance funds likely to be repaid only if the venture is successful without demanding the potential enhanced return associated with an equity investment.”

The Court also found significant the lack of security for the loan. The “absence of security for the advances is a strong indication that the advances were capitalcontributions rather than loans.”  According to the Court, “[a]lthough some loans are made ‘on signature,’ … the absence of provision for security in a loan of this scale is telltale that a ‘loan’ is not real, … and so, also, for the absence of meaningful enforcement mechanisms.”  See also Kimberly-Clark Corp. v. Commissioner of Revenue, 83 Mass. App. Ct. 65 (2013) (the absence of default provisions and the failure of the “debtor” to make any payments on the “loan” supported the conclusion that funds advanced were capital contributions, not debt).

Also relevant, according to the Court in Overnight, is whether a third party lender would have made the alleged loan.

What is assumed here is a hypothetical independent lender willing to make a ten-year advance of $600 million in cash to Overnight without exacting security in specific assets of the company (at best the approximately $300 million). …  Agreeing with the board, we think the hypothetical willing lender could not be found in the flesh. The point can also be made by asking whether anyone could be found to buy the existing note from Holding (or Union Pacific) and at what point in time and at what discount.

54 Mass. App. Ct. 189-90.

Federal law.

Federal cases, usually decided in the bankruptcy context and usually involving purported “loans” made by corporate insiders to their companies, identify additional factors to be used in determining whether a loan is really a capital contribution.  Relevant factors include:

(1) the adequacy of capital contributions;

(2) the ratio of shareholder loans to capital;

(3) the amount or degree of shareholder control;

(4) the availability of similar loans from outside lenders;

(5) certain relevant questions, such as,

(a) whether the ultimate financial failure was caused by undercapitalization;

(b) whether the note included payment provisions and a fixed maturity date;

(c) whether a note or other debt document was executed;

(d) whether advances were used to acquire capital assets; and

(e) how the debt was treated in the business records.

In re: Shamus LLC, 2008 WL 3191315, *12 (D. Mass. 8/6/08), quoting In re: Atlantic Rancher, Inc., 279 B.R. 411 (Bankr. D. Mass. 2002).  See also American Twine, 392 F. Supp.2d at 22-23; In re: Felt Mfg. Co., Inc., 371 B.R. 589, 629-32 (D.N.H. 2007).  These are the factors applied by federal courts in the First Circuit.

Federal courts elsewhere examine additional factors:

These are: “(1) the names given to the certificates evidencing the indebtedness; (2) the presence or absence of a fixed maturity date; (3) the source of payments; (4) the right to enforce payment of principal and interest; (5) participation in management flowing as a result; (6) the status of the contribution in relation to regular corporate creditors; (7) the intent of the parties; (8) ‘thin’ or adequate capitalization; (9) identity of interest between creditor and stockholder; (10) source of interest payments; (11) the ability of the corporation to obtain loans from outside lending institutions; (12) the extent to which the advance was used to acquire capital assets; and (13) the failure of the debtor to repay on the due date or to seek a postponement.

In re: Blevins Concession Supply Co., 213 B.R. 185, 187-88 (Bktcy. S.D. Fla. 1997).

Analysis.

In our hypothetical, many relevant factors support a finding that the funds transferred from Jackson to Greensleeves were capital contributions or equity investments rather than loans.  First, the funds were needed to initially capitalize Greensleeves, which would have been severely undercapitalized without the Jackson funds.  As the Yankee Court said: “We think that where the loans are indeed a substitute for capital to the extent necessary to the operation of the business, they must be treated as capital.”  53 Mass. App. Ct. at 523.

Second, Jackson took no security for the “debt”.  This, in itself, is indicative of an equity investment as opposed to a loan.  Overnight, 54 Mass. App. Ct. at 189.

Third, because Greensleeves had little capital other than what Jackson had provided, and because Jackson took no security, repayment of Jackson’s advances was dependent upon the success of Greensleeves, again indicative of an equity investment.  Overnight, 54 Mass. App. Ct. at 190.  Jackson could not reasonably expect to be paid back regardless of the performance of Greensleeves.

Fourth, the notes did not provide for a fixed maturity date and no payments were ever demanded by Jackson or made by Greensleeves.

Fifth, there is no reason to believe that a third party lender would have made the same loan to Greensleeves.  Two banks declined to extend credit.  Jackson might claim that it was a third party lender, not an insider of Greensleeves, but Jackson funded Greensleeves in return for equity.  It seems highly unlikely that a disinterested third party lender would have given Greensleeves, a penniless start-up company with a questionable product line, significant unsecured loans.

Perhaps most importantly, the parties themselves treated the funds as an equity investment rather than a loan.  Although Jackson at one time referred to the funding as personal loans, other correspondence between the parties shows that they believed Jackson had purchased a 40% equity interest in Greensleeves.  Indeed, when Greensleeves refused to transfer the stock certificates to Jackson, Jackson threatened to sue.

Certain other factors support the view that Jackson’s funding of Greensleeves was a loan transaction: (1) there is no evidence that Jackson exerted any management or control over Greensleeves; (2) the notes were executed; and (3) Jackson was not an insider of Greensleeves.  To the extent that the Jackson funds were used for operating expenses rather than capital purchases (e.g. equipment), that would also support a finding that the funding was debt rather than equity.

On balance, the factors support the conclusion that the alleged “loans” were actually equity investments or capital contributions.  Thus, Greensleeves is likely to succeed in its defense of Jackson’s suit for payment of the notes.

Whether funds provided to a business constitute debt or equity is often a difficult question requiring a detailed factual analysis.  Parties entering into such funding transactions should take steps to make clear whether the source of the funds is making an investment or merely lending money.  They should be aware, however, that the ultimate characterization of the funding depends not just on how the parties refer it, but also on the financial circumstances of the business, the terms of any alleged loan, the parties’ course of conduct, and many other factors.

This article appears as published in the April 7, 2014, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

Study the record.

This article appears as published in the March 3, 2014, issue of the Massachusetts Lawyers Weekly.  Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.