Posts tagged "1110617"

Zelby Holdings, Inc. v. Videogenix, Inc. (Lawyers Weekly No. 11-106-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-874                                         Appeals Court   ZELBY HOLDINGS, INC.  vs.  VIDEOGENIX, INC.     No. 16-P-874.   Norfolk.     February 10, 2017. – August 18, 2017.   Present:  Green, Milkey, & Neyman, JJ.     Negotiable Instruments, Note, Payment.  Uniform Commercial Code, Payment on negotiable instrument.  Payment.  Limitations, Statute of.  Practice, Civil, Motion to dismiss, Statute of limitations.  Common Law.  Contract, Unjust enrichment.  Unjust Enrichment.       Civil action commenced in the Superior Court Department on July 24, 2015.   A motion to dismiss was heard by Rosalind H. Miller, J.     Thomas Hemmendinger for the plaintiff. Andrea L. Martin for the defendant.     NEYMAN, J.  Zelby Holdings, Inc. (Zelby), brought this action in 2015 in the Superior Court against VideogeniX, Inc. (VideogeniX), to collect on a promissory note (note) due in 2006.  VideogeniX successfully moved to have the complaint dismissed.  The primary issue on appeal is whether the common-law partial payment rule applies to actions subject to the six-year statute of limitations set forth in G. L. c. 106, § 3-118.  We conclude that it does and reverse accordingly. Background.  We summarize the facts alleged in Zelby’s complaint, accepting them as true.  On March 24, 2005, VideogeniX’s predecessor signed a note for $ 30,000 in favor of Zelby’s predecessor.  The note was due on March 25, 2006.  On September 15, 2008, Zelby’s predecessor demanded payment.[1]  On June 1, 2010, VideogeniX issued a check for $ 250 to Zelby’s predecessor.  VideogeniX made no other payments.[2] On July 24, 2015, Zelby filed the present action alleging breach of contract, “book account,” and unjust enrichment.  A Superior Court judge allowed VideogeniX’s subsequent motion to dismiss, concluding that all three counts were barred by the statute of limitations under G. L. c. 106, § 3-118, and that the unjust enrichment count failed to state a cognizable claim under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Discussion.  1.  Legal standards.  a.  Motion to dismiss.  “We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor.”  Harrington v. Costello, 467 Mass. 720, 724 (2014).  “To survive a motion to dismiss, the factual allegations must plausibly suggest that the plaintiff is entitled to relief.”  Ibid., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Statute of limitations.  In 1998, the Legislature adopted G. L. […]

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Posted by Massachusetts Legal Resources - August 19, 2017 at 6:48 am

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