Boston Segway Tours, Inc., et al. v. Danley, et al. (Lawyers Weekly No. 09-066-17)



SUFFOLK, ss.                                                                             SUPERIOR COURT

                                                                                                            CIV. NO. 15-1498 BLS 2








                        ALLAN DANLEY and EASTERA PHOU






This case began as a dispute over ownership interests in a company, Boston Segway Tours, Inc. (BST) that offers Boston tours by the use of Segways.  Plaintiff Ian Meyer claimed that he was the full owner, whereas the defendant Allan Danley claimed that he was the owner.  Beyond the question of ownership, each party asserted multiple common law counts against the other, as well as violations of Chapter 93A. Following a jury -waived trial on the limited question of ownership, this Court issued a written opinion determining that Meyer was the full owner.  See Findings of Fact and Rulings of Law dated January 12, 2016 (the January 2016 Decision).  Shortly thereafter, Danley filed for bankruptcy and a Trustee was appointed by the Bankruptcy Court.  The Trustee, on behalf of Danley, filed an Amended Counterclaim in this action.  The case is now before the Court on Cross Motions for Partial Summary Judgment as to the Amended Counterclaim.

Plaintiff seeks summary judgment in his favor on the following counts of the Amended Counterclaim:  Count I (breach of contract), Count II (monies owed), Count III (unjust enrichment), Count IV (fraud), Count V (breach of the covenant of good faith and fair dealing) and Count VI (violation of chapter 93A).  Before the hearing on the plaintiff’s motion, the defendant agreed to dismiss Counts IV through VI, so that those counts are no longer at issue.  As to the remaining Counts (I through III), the defendant cross moved for summary judgment in his favor.  The basis for these counts is  Danley’s claim that he provided consulting services and equipment to BST and Meyer for which he is entitled to payment.  Those counts also encompass Danley’s claim that he loaned Meyer $ 73,200 which has not been fully repaid.  This Court concludes that Danley is entitled to summary judgment in his favor as to liability, with the precise amount of damages to be determined at later hearing.

The Court reaches this conclusion based on the fact findings it rendered in its January 2016 Decision.  As explained in that decision, Danley had originally formed the Segway tour company under the name Boston by Segway, but in 2011 decided to sell it to Meyer.  This Court found that in order to facilitate that transfer of ownership:

Danley agreed to lease his fleet of Segways to the new company and would front the startup costs by way of a personal loan to Meyer, who would pay it back from the profits of the new company…Danley would also assist Meyer in setting up the company and would provide him with general advice and guidance as to its operations.  For this assistance and for allowing Meyer to use his fleet of Segways, Danley would be paid $ 240,000 for the first year.


January 2016 Decision, page 2.  It is undisputed that, although Meyer did make some payments on the loan, he still owes some amount of money (a fact he also conceded at the jury-waived trial).  As to the consulting services, the January 2016 Decision makes it clear that Danley did assist Meyer in setting up the new business from October 2014 (when Meyer, with Danley’s help, filed Articles of Organization for the new company) until the relationship soured in May 2015, and that  Meyer used  Danley’s Segways during this period.  Although there is some dispute as to the value to be placed on these services and how the $ 240,000 is to be apportioned between the lease of the equipment and the payment for consulting services,  these are disputes that can be determined at a hearing assessing damages on these counts.

In opposing the defendant’s motion for summary judgment and in pressing for judgment in his favor on these same counts, Meyer contends that Danley should be foreclosed from seeking compensation for the consulting services because, in asserting that he owned BST, Danley specifically denied that he was a consultant and that his involvement in the business was because he was the sole owner.      This Court did not credit Danley’s testimony and concluded that Meyer was the owner and that (as Meyer had testified), Danley was only a consultant.   Having benefited from that finding, Meyer is hardly in a position to claim that Danley is prevented from being paid for his services, provided that there is credible evidence that would permit the Court to place a dollar value on those services.  That determination can be made at a hearing assessing damages, however. It does not prevent this Court from entering summary judgment on these Counts in favor of Danley as to liability only. [1]


For the foregoing reasons,  Danley’s Motion for Partial Summary judgment as to Counts I through III is ALLOWED as to liability only.  Counts IV through VI are DISMISSED at the request of the defendant.  Meyer’s Motion for Partial Summary Judgment is DENIED.  This mater is scheduled for a Rule 16 Conference on February 12, 2018 at 2:00 p.m. to determine how the parties intend to proceed in order to resolve the issue of damages.


Janet L. Sanders

Justice of the superior Court


Dated: December 21, 2107





[1] Meyer also argued that the loan was from Phou, not Danley, because her parents were the source of the funds. The Court found (and Meyer testified) that the loan agreement was between him and Danley, however.  Where Danley got the money to fund the loan is irrelevant.

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