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17-P-1115 Appeals Court

EMPIRE LOAN OF STOUGHTON, INC. vs. STANLEY CONVERGENT SECURITY 

SOLUTIONS, INC.

No. 17-P-1115.

Norfolk. November 8, 2018. - January 24, 2019.

Present: Sullivan, Kinder, & Shin, JJ.

Appeals Court, Jurisdiction. Practice, Civil, Notice of appeal, 

Motion to dismiss, Choice of forum. Contract, Choice of 

forum clause, Choice of law clause.

Civil action commenced in the Superior Court Department on 

July 24, 2015. 

A motion to dismiss was heard by Beverly J. Cannone, J., 

and a motion for reconsideration was considered by her.

A motion to dismiss the appeal was heard in the Appeals 

Court by Rubin, J.

Dana E. Casher for the plaintiff.

Christopher A. Duggan (Nicole B. Cordeiro also present) for 

the defendant.

KINDER, J. Pawn shop operator Empire Loan of Stoughton, 

Inc. (Empire), filed a complaint in Superior Court against 

Stanley Convergent Security Solutions, Inc. (Stanley), a 
2

supplier and servicer of security systems, alleging, among other 

things, that Stanley breached a contract with Empire by failing 

to properly monitor and maintain a security system it sold to 

Empire. A Superior Court judge allowed Stanley's motion to 

dismiss because the contract contained a forum selection clause 

that provided that any action against Stanley must be brought in 

Hartford, Connecticut. On appeal, Empire claims error in the 

order of dismissal, arguing that the forum selection clause is 

unenforceable. In a consolidated appeal, Stanley argues that 

its motion to dismiss Empire's appeal for lack of jurisdiction 

should have been allowed by the single justice. We affirm the 

order of the single justice and the judgment dismissing Empire's 

claims.

Background. Stanley filed its motion to dismiss the 

complaint under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 

(1974), which, in the normal course, "is the correct vehicle to 

employ when the ground for dismissal is alleged to be that the 

court lacks jurisdiction as a result of an enforceable forum 

selection clause." Boland v. George S. May Int'l Co., 81 Mass.

App. Ct. 817, 818 n.2 (2012). However, when "matters outside 

the pleading are presented to and not excluded by the court, the 

motion shall be treated as one for summary judgment and disposed 

of as provided in [Mass. R. Civ. P. 56, 365 Mass. 824 (1974)]." 

Mass. R. Civ. P. 12 (b). Because both parties submitted 
3

affidavits in connection with the motion to dismiss and the 

record does not show that the judge excluded them, we treat the 

motion as one for summary judgment.1 See Baby Furniture 

Warehouse Store, Inc. v. Meubles D&F Ltée, 75 Mass. App. Ct. 27, 

29 n.3 (2009). Our review of the record in the light most 

favorable to Empire, the nonmoving party, id., reveals the 

following material facts. 

Empire is a Massachusetts company that operates five 

Massachusetts pawn shops, including one in Stoughton.2 Stanley 

is a Delaware corporation doing business in Massachusetts with 

an office in Woburn. Beginning in 2011, Empire and Stanley 

entered into eight contracts in which Stanley agreed to install 

and monitor security systems in Empire's pawn shops in exchange 

for monthly payments. As relevant here, the contracts stated 

that they were entered into in Connecticut, that they "shall be 

interpreted, enforced and governed under the laws of the State 

of Connecticut without regard to application of conflicts of 

laws principals [sic] that would require the application of any 

 

1 Neither the memorandum of decision on the motion to 

dismiss nor the judgment indicates under which rule it entered,

and there is no transcript before us of the hearing on the 

motion.

2 We simplify here for convenience, but it does not affect 

our analysis. Empire is actually one of five corporations run 

by the same principals, with the other companies operating 

affiliated pawn shops at four other Massachusetts locations. 
4

other law," and that "[a]ny action regarding this agreement or 

otherwise brought against [Stanley] by or on behalf of any party 

to this agreement . . . shall be maintained in a court in 

Hartford, Connecticut." 

Stanley's Massachusetts salesperson Robert Corrieri 

negotiated the contracts with Empire's general manager, Steven 

Duva, and its president, Michael Goldstein. Viewing the 

evidence in the light most favorable to Empire, the negotiations 

actually occurred in Massachusetts. The parties negotiated 

prices, and Duva inserted handwritten terms into the agreement 

relating to Empire's pawn shop in Lynn. Each page of every 

contract bears the signature or initials of Duva or Goldstein, 

neither of whom objected to the forum selection clause. In 

executing each contract, Duva and Goldstein agreed that they had 

"read th[e] entire [a]greement" and would "be bound by all its 

terms and conditions." 

Business between Empire and Stanley proceeded without 

incident until December 25, 2014, when two unidentified burglars 

disabled the telephone wire to the Stoughton pawn shop, tore 

wiring from the security system, broke in, and damaged or stole 

property. Neither Stanley nor the security system alerted 

Empire or the police. As a result of the burglary, Empire 

sustained losses that were not covered by insurance.
5

Discussion. 1. Motion to dismiss the appeal. We first

address Stanley's claim that the Appeals Court lacks 

jurisdiction over this appeal because Empire did not file "a 

valid, timely notice of appeal." More specifically, Stanley 

argues that the single justice should have dismissed the appeal 

on its motion because Empire did not file a new notice of appeal 

after the denial of Empire's motion to reconsider. We disagree.

The procedural history follows, with all dates referring to 

the year 2016. On June 28, the Superior Court judge's order 

entered allowing the motion to dismiss Empire's complaint. On 

July 29, Empire served Stanley with a motion for 

reconsideration. Empire filed a notice of appeal from the order 

of dismissal on August 2; however, the judgment dismissing the 

complaint did not enter until August 5. On August 26, Empire 

filed a notice of appeal from the judgment of dismissal. 

Empire's motion for reconsideration was denied on August 31, and 

Empire did not notice an appeal after that decision.

We begin our analysis by assuming, without deciding, that 

if the August 26 notice of appeal is not effective, we would not 

have jurisdiction to hear the appeal from the judgment. See 

DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("A timely 

notice of appeal is a jurisdictional prerequisite to our 

authority to consider any matter on appeal"). But see Roch v. 

Mollica, 481 Mass. 164, 165 n.2 (2019) (deciding merits of 
6

appeal where sole notice of appeal was of no effect due to 

timely filed motion for reconsideration). To be effective, a 

notice of appeal must be filed "within thirty days of the date 

of the entry of the judgment appealed from." Mass. R. A. P.

4 (a), as amended, 464 Mass. 1601 (2013). The thirty-day appeal 

period may be tolled by the filing of a "timely motion," among 

other things, "to alter or amend a judgment under Rule 59 or for 

relief from judgment under Rule 60, however titled," Mass. 

R. A. P. 4 (a), which may include a motion to reconsider the 

judgment. See 2013 Reporter's Notes to Mass. R. A. P. 4, 2 

Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 11 

(LexisNexis 2018). Such motions to alter or amend a judgment or 

for relief from the judgment are timely only "if either motion 

is served within ten days after entry of judgment" (emphasis 

added). Mass. R. A. P. 4 (a). The parties then have thirty 

days after entry of the order disposing of the motion to file a 

new notice of appeal. "A notice of appeal filed before the 

disposition of any of the above motions shall have no effect." 

Id.

In denying Stanley's motion to dismiss for lack of 

appellate jurisdiction, the single justice concluded that

Empire's motion for reconsideration was not a "timely" one under 

rule 4 (a). We discern no error in that conclusion because it 

is undisputed that the motion was served before judgment 
7

entered. Moreover, Empire's motion for reconsideration, which 

only sought reconsideration of the allowance of the motion to 

dismiss, was not a motion for reconsideration that tolls the 

time period for filing a notice of appeal. Only motions seeking

reconsideration of a judgment have that effect under rule 4 (a). 

Accordingly, Empire's motion to reconsider did not toll the 

running of the thirty-day appeal period and a new notice of 

appeal was not required when the motion was denied. Empire's 

August 26 notice of appeal, filed within thirty days of entry of 

the judgment of dismissal, conferred jurisdiction on this court, 

and we therefore reach the merits.3

2. Enforceability of the forum selection clause. The 

Superior Court judge allowed Stanley's motion to dismiss, 

reasoning that "the forum selection language is clear and 

unambiguous, is presented fairly and conspicuously and . . . the 

contract was entered into by sophisticated parties who have 

agreed to litigate in Connecticut." She further concluded that 

(1) "[t]he forum selection clause is fair and reasonable because 

there is no evidence of fraud, duress, or substantial imbalance 

 

3 Our holding is limited to the particular procedural 

situation before us. We do not decide whether a premature 

motion for reconsideration might toll the time period for filing 

a notice of appeal in other circumstances. However, it should 

serve as a reminder that a party who relies on a prejudgment 

motion for reconsideration in delaying its notice of appeal does 

so at its peril.
8

of bargaining power between the two parties," (2) the forum 

selection clause is not in contravention of public policy, and 

(3) "a trial in Connecticut, as agreed to by the parties, would 

not be so gravely difficult that the plaintiff would be deprived 

of its day in court." We review the judge's decision de novo to 

determine whether Stanley has established that, viewing the 

evidence in the light most favorable to Empire, there is no 

genuine issue as to any material fact and that Stanley is 

entitled to a judgment as a matter of law. See Scarlett v.

Boston, 93 Mass. App. Ct. 593, 596-597 (2018), citing Mass. R.

Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). 

a. Choice of law. We first determine which State's 

substantive law should be used to analyze the enforceability of 

the contract's forum selection clause. "Where, as here, 'the 

parties have expressed a specific intent as to the governing 

law, Massachusetts courts will uphold the parties' choice as 

long as the result is not contrary to public policy.'" Oxford 

Global Resources, LLC v. Hernandez, 480 Mass. 462, 468 (2018), 

quoting Hodas v. Morin, 442 Mass. 544, 549-550 (2004). A 

choice-of-law provision is not contrary to public policy unless 

"'(a) the chosen state has no substantial relationship to the 

parties or the transaction and there is no other reasonable 

basis for the parties' choice, or (b) [where] application of the 

law of the chosen state would be contrary to a fundamental 
9

policy of a state which has a materially greater interest than 

the chosen state [in the determination of the particular issue]' 

and is the State whose law would apply . . . 'in the absence of 

an effective choice of law by the parties.'" Id. at 469, 

quoting Hodas, supra at 550.

The record in this case shows little connection between the 

parties and Connecticut. According to the contract, Stanley is 

located in Naperville, Illinois. Although Stanley's memorandum 

in support of its motion to dismiss suggests that it has a 

national branch office in Trumbull, Connecticut, there is no 

record evidence to support that claim. The contract states that 

it was entered into in the State of Connecticut, but that fact

is disputed. Marc Gundersheim, an officer and director of 

Empire, states in an affidavit that the contract was entered 

into in Massachusetts.4 Other than these unsupported or disputed 

claims, there is nothing in the record establishing any 

relationship between the parties and the State of Connecticut, 

 

4 Gundersheim fails to state the basis for his personal 

knowledge of these facts as required by Mass. R. Civ. P. 56 (e) 

("affidavits shall be made on personal knowledge, shall set 

forth such facts as would be admissible in evidence, and shall 

show affirmatively that the affiant is competent to testify to 

the matters stated therein"). See Madsen v. Erwin, 395 Mass. 

715, 721 (1985). However, because Stanley did not move to 

strike the affidavit and the record is open to our independent 

consideration, we consider the location of the execution of the 

contract to be disputed. See Matthews v. Ocean Spray 

Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997).
10

much less a substantial relationship. It is undisputed, 

however, that Empire is located in Massachusetts, where (1) both 

parties do business, (2) the contract was negotiated, (3) the 

conduct at issue occurred, and (4) Empire sustained losses. On 

this record, we conclude that Connecticut does not have a 

substantial relationship to the parties or the transaction and 

there is no other reasonable basis for the parties' choice of 

law. See Oxford Global Resources, LLC, supra at 467 (setting 

forth factors to be considered in identifying State with most 

significant relationship). The choice-of-law provision in the 

contract is therefore unenforceable, and we apply the 

substantive law of Massachusetts to determine the enforceability 

of the forum selection clause. 

b. Forum selection. Forum selection clauses are 

presumptively enforceable in Massachusetts "so long as they are 

fair and reasonable." Melia v. Zenhire, Inc., 462 Mass. 164, 

182 (2012). See Jacobson v. Mailboxes Etc. U.S.A., 419 Mass. 

572, 575 (1995). The proponent of a forum selection clause 

bears the burden of showing that the clause was reasonably 

communicated and accepted. Ajemian v. Yahoo!, Inc., 83 Mass. 

App. Ct. 565, 574 (2013), S.C., 478 Mass. 169 (2017), cert. 

denied sub nom. Oath Holdings, Inc. v. Ajemian, 138 S. Ct. 1327 

(2018). By contrast, "[t]he opponent of a forum selection 

clause bears the 'substantial burden' of showing that 
11

enforcement of a forum selection clause would be unfair and 

unreasonable." Melia v. Zenhire, Inc., supra, quoting Cambridge 

Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 133 

(2000).

Stanley has met its burden of showing that the forum 

selection clause was reasonably communicated and accepted by 

Empire. Stanley negotiated eight separate contracts with 

Empire's president and general manager, each of which contained 

an identical forum selection clause. Neither the president nor 

the general manager objected to the forum selection clause, and 

nothing in the record supports an inference that they did not 

see or understand that clause. Rather, by executing the 

contracts, they agreed that they "read th[e] entire 

[a]greement." The president or the general manager signed or 

initialed each page of every contract, and in the case of the 

contract relating to the Lynn shop, the general manager inserted 

additional contract terms directly under the forum selection 

clause. In these circumstances, Empire's assertion that it 

signed the contracts with little or no knowledge of their terms 

rings hollow.

Empire claims the forum selection clause is unfair and 

unreasonable because (1) the contract is one of adhesion, (2) 

its witnesses would be unavailable for a trial in Connecticut, 

and (3) forcing Empire to litigate in Connecticut would deprive 
12

Empire of its contract-based G. L. c. 93A claim, in violation of 

Massachusetts public policy. We address each argument in turn.

A contract of adhesion is one that is "drafted unilaterally 

by the dominant party and then presented on a 'take-it-or-leaveit' basis to the weaker party who has no real opportunity to 

bargain about its terms." Restatement (Second) of Conflict of 

Laws § 187 comment b (1971). While there is no dispute that 

Stanley drafted the contracts at issue here, they were subject 

to negotiation. Empire concedes that the parties negotiated 

"what components would be installed, the level of service and

maintenance plans, and the pricing," and it is undisputed that

handwritten terms were inserted into the agreement relating to 

Empire's pawn shop in Lynn. Thus, we agree with the motion 

judge that this was not a contract of adhesion. Moreover, even 

adhesion contracts are enforceable "unless they are 

unconscionable, offend public policy, or are shown to be unfair 

in the particular circumstances." Chase Commercial Corp. v. 

Owen, 32 Mass. App. Ct. 248, 253 (1992). We see nothing 

unconscionable or unfair in this case where the principals were 

sophisticated business people and there is no claim of fraud in 

the contract's execution. See Miller v. Cotter, 448 Mass. 671, 

680 (2007). Accordingly, on this point, Empire has failed to 

meet its substantial burden of showing that enforcement of the 

forum selection clause would be unfair and unreasonable.
13

Second, we find no merit in Empire's claim that it would be 

unfair and unreasonable to enforce the forum selection clause 

because it cannot present the testimony of Massachusetts 

witnesses in a Connecticut proceeding. Even assuming that the 

subpoena power of a Hartford forum would not extend to 

Massachusetts witnesses, which is not clear from this record, 

nothing would prevent depositions taken in Massachusetts from 

being presented in the courts of Connecticut. See Connecticut

Practice Book §§ 13-27(f), 13-29(d), 13-31 (2018).

Finally, we are not persuaded by Empire's claim that 

enforcing the forum selection clause in this case would deprive 

Empire of its contract-based G. L. c. 93A claim in violation of 

Massachusetts public policy. Assuming, without deciding, that 

Empire has a viable G. L. c. 93A claim against Stanley, Empire 

has not shown that a Connecticut forum could not apply 

Massachusetts law to its unfair or deceptive business practice 

claim. In Connecticut, "[a] principled search for the local law 

of the state with the most significant relationship to the 

occurrence and the parties will often cause foreign law to be 

recognized as the law that should govern the controversy." 

O'Connor v. O'Connor, 201 Conn. 632, 648 (1986). Thus, we see 

no reason why a Connecticut court could not properly apply our 

statute, where (1) the injury and the conduct alleged to have 

caused the injury occurred in Massachusetts, (2) Empire is a 
14

Massachusetts company, (3) Stanley maintains an office in 

Massachusetts, and (4) the parties' relationship is centered in 

Massachusetts. See id. at 652, quoting Restatement (Second) of 

Conflict of Laws § 145(2) (1971). 

For all of these reasons we discern no error in the judge's 

conclusion that the forum selection clause is valid and 

enforceable. The judgment dismissing Empire's complaint is 

affirmed, as is the order of the single justice denying 

Stanley's motion to dismiss Empire's appeal.

So ordered.