United States District Court, D. New Hampshire
Gary F. Joyal
Aminda Daviduk Opinion No. 2017 DNH 130
MEMORANDUM AND ORDER
K. Johnstone United States Magistrate Judge.
plaintiff, Gary Joyal, brings this action seeking the
enforcement of four promissory notes executed by the
defendant, Aminda Daviduk, in 2010 and 2011. Doc. no. 1.
Daviduk brings counterclaims against Joyal for fraud and
negligent misrepresentation. Doc. no. 6. Joyal moves for
summary judgment (doc. no. 15), and Daviduk objects (doc. no.
19). The court held a hearing on June 12, 2017. For the
reasons that follow, Joyal's motion is granted as to
Daviduk's counterclaims and granted in part and denied in
part as to his own claim.
judgment is appropriate where "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a);
see also Xiaoyan Tang v. Citizens Bank, N.A., 821
F.3d 206, 215 (1st Cir. 2016). "An issue is
'genuine' if it can be resolved in favor of either
party, and a fact is 'material' if it has the
potential of affecting the outcome of the case."
Xiaoyan Tang, 821 F.3d at 215 (internal quotation
marks and citations omitted). At the summary judgment stage,
the court "view[s] the facts in the light most favorable
to the non-moving party" and "draw[s] all
reasonable inferences in the nonmovant's favor . . .
." Garmon v. Nat'l R.R. Passenger Corp.,
844 F.3d 307, 312 (1st Cir. 2016) (citation and quotation
marks omitted). The court will not, however, credit
"conclusory allegations, improbable inferences, and
unsupported speculation." Fanning v. Fed. Trade
Comm'n, 821 F.3d 164, 170 (1st Cir. 2016) (citation
and quotation marks omitted) cert, denied, 137 S.Ct.
party moving for summary judgment must identify for the
district court the portions of the record that show the
absence of any genuine issue of material fact."
Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st
Cir. 2016) . Once the moving party makes the required
showing, "'the burden shifts to the nonmoving party,
who must, with respect to each issue on which [it] would bear
the burden of proof at trial, demonstrate that a trier of
fact could reasonably resolve that issue in [its]
favor.'" Id. (citation omitted). "This
demonstration must be accomplished by reference to materials
of evidentiary quality, and that evidence must be more than
'merely colorable.'" Id. (citations
omitted). The nonmoving party's failure to make the
requisite showing "entitles the moving party to summary
relevant facts, when viewed in the light most favorable to
Daviduk, are as follows.
November 2010 and March 2011, Daviduk executed four
promissory notes payable to Joyal. The first two notes were
executed on November 12 and November 30, 2010, and totaled
$40, 886.20 ("November 2010 notes"). See
doc. no. 15-2; doc. no. 15-3. The remaining two notes were
executed on March 15 and March 17, 2011, and totaled $40,
000.00 ("March 2011 notes"). See doc. no.
15-4; doc. no. 15-5.
than the amounts, the notes were identical and contained, in
relevant part, the following terms:
. . . [The] principal and interest shall be paid on demand.
Notwithstanding the forgoing, Maker is required to repay in
full the entire outstanding Loan Balance upon the earlier of
either thirty (30) days, or upon restructure of the debt.
Maker further agrees to pay all costs of collection,
including a reasonable attorney's fee, including
attorney's fees in event of appeal, in case the principal
of this Note or any interest thereon is not paid on demand.
This Note may not be changed orally, but only by agreement in
writing, signed by the party against whom enforcement of any
waiver, charge, modification or discharge is sought.
See, e.g., Doc. no. 15-2. The notes also contained two
provisions concerning interest, the first stating that
outstanding principal would be subject to an interest rate of
ten percent compounded annually, and the second stating that
the note would bear an annual interest rate of ten percent
commencing five business days after Daviduk received notice
of a demand of payment. Id. The notes stated that
they were to be "construed and enforced according to the
laws of the State of Massachusetts." Id.
four notes were executed contemporaneously with the
negotiation and execution of several other, related
transactions involving Joyal and Daviduk. In mid-to-late
2010, Daviduk was in the process of divorcing her husband.
See doc. no. 15-11 at 2. Daviduk and her husband
jointly owned five Dunkin' Donuts franchises. Affidavit
of Aminda Daviduk (doc. no. 19-2) ¶ 2. Daviduk agreed to
purchase her husband's share of all five franchises in
exchange for a fifteen year annuity, payable to her husband
in the amount of $78, 000.00 per year in gross annual income.
Doc. no. 15-13 at 1, 2. It is plain from the record that
Joyal, through his company Joyal Capital Management
("JCM"), was involved in that transaction, though
the specific nature of his involvement is unclear.
See doc. no. 15-11; doc. no. 15-12 .
order to fund the annuity, Joyal suggested that Daviduk sell
one of the five Dunkin' Donuts franchises. Daviduk Aff.
¶ 1, 5. Joyal stated that the sale proceeds would cover
the annuity and leave Daviduk approximately $100, 000.00 that
she could put toward overhead for the remaining four
franchises. Id. ¶ 5. On January 14, 2011,
Daviduk entered into a purchase and sale agreement to sell
one of the franchises for $1, 240, 000.00. Doc. no. 15-14 at
1, 3. Joyal "organized and orchestrated" this sale.
Daviduk Aff. ¶ 8.
sale of the franchise closed on March 15, 2011. Doc. no.
15-9. On that date, Daviduk discovered that she would not
receive any net proceeds from the sale, and would in fact
have to pay approximately $10, 000.00. Daviduk Aff. ¶
10. She further learned that Joyal would receive a
considerable amount in disbursements and commissions as part
of the transaction. Id. ¶ 11. Daviduk
threatened to walk away from the closing, but Joyal and his
associates assured her that the transaction "would all
work out" and promised that they would "take care
of any shortfalls." Id. ¶ 12.
the date of the closing, Daviduk and Joyal had already
executed the November 2010 notes. See doc. no. 15-2;
doc. no. 15-3. Joyal promised at the closing that proceeds
received from the sale of the franchise would pay off the
November 2010 notes. Daviduck Aff. ¶ 13. The March 2011
notes were executed on the day of the closing, see
doc. no. 15-4, and two days later, see doc. no.
15-5. Joyal assured Daviduk at the time those notes were
executed that they were only being presented as promissory
notes for tax purposes, that they were intended to "help
make things right, " and that he would only need a
"payment or two" to satisfy any tax concerns.
the closing, Joyal, through JCM, secured Daviduk's
husband an annuity through the Guardian Insurance &
Annuity Company, Inc. ("Guardian"), see
doc. no. 15-16, and a life insurance policy through Allianz
Life Insurance Company of North America
("Allianz"), see doc. no. 15-17. Joyal
attached a copy of the application for the Guardian annuity
to his motion for summary judgment. See doc. no.
15-15. At the end of this attachment is a single-page
document captioned "Aminda Daviduk; Northern Loan
Request; Sources/Uses of Funds; Dec-10" (hereinafter the
"Dec-10 document"). Id. at 13 (formatting
altered; semicolons indicate new line in original). The top
of this document reads "keep 4 stores, sell 1 location,
" and appears to contemplate a $2, 200, 000.00 loan.
Id. The document includes several line items
seemingly related to how that loan money would be used.
Id. One of the line items is for "JCM-funds
owed regarding Morgan Stanley payments made on Minda's
behalf" with an amount entry of "(41, 000) ."
Id. A separate entry reads "Net Cash from 2
store sale to Cafua" with an amount entry of "$1,
200, 000." Id. Though the Dec-10 document was
apparently in Joyal's possession, neither party can
explain its provenance.
made four payments toward the promissory notes: $2, 000 in
April 2011, $1, 500 in July 2014, $2, 500 in August 2014, and
$1, 000 in September 2014. See doc. no. 15-6. All
four payments were applied toward the November 12, 2010 note.
See id. Between October 3, 2014, and September 8,
2015, Becky Green, a controller at JCM, reached out to
Daviduk repeatedly in an attempt to coordinate additional
payments toward the notes. See doc. no. 15-10. On
April 27, 2016, Joyal, through his present counsel, sent
Daviduk a ...