DANIEL J. BENWAY v. CRAIG J. CALLAHAN & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1441

DANIEL J. BENWAY1

vs.

CRAIG J. CALLAHAN & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Daniel J. Benway, appeals from a judgment in

the Superior Court dismissing his unjust enrichment claim

against the defendants, Craig and Cynthia Callahan.3 Because it

is unclear whether this judgment amounted to an improper

reconsideration of the decision of a prior panel of this court,

as opposed to merely a determination of no damages on the

1 Doing Business as Irrigation Plus.

2Cynthia Provencher and Connorstone Engineering, Inc.
Although the plaintiff's complaint named Cynthia Provencher as a
defendant, the defendants' brief refers to her as Cynthia
Callahan, and we do likewise.

3The plaintiff's breach of contract claim against
Connorstone Engineering, Inc. was dismissed before the first
trial. We use the term defendants to refer to Craig and Cynthia
Callahan.
plaintiff's claim, we vacate the judgment and remand the case

for clarification of the judgment and, if necessary, further

proceedings consistent with this memorandum and order.

Background. In 2016, the plaintiff filed a complaint

against the defendants claiming breach of contract, unjust

enrichment, violation of the covenant of good faith and fair

dealings, and violation of G. L. c. 93A. The plaintiff's claims

arise from work he performed for the defendants involving the

development of a subdivision on the defendants' property.

Following a jury trial in 2019, the jury found that, even though

the parties did not enter into a contract, the defendants were

unjustly enriched and awarded the plaintiff $200,000 in damages.

The defendants filed a motion for judgment notwithstanding the

verdict (judgment n.o.v.) or, in the alternative, for remittitur

or a new trial. The trial judge allowed the request for

judgment n.o.v. and entered judgment in the defendants' favor.

The plaintiff appealed from that judgment to this court.

On appeal, a panel of this court concluded in an

unpublished decision that although the jury's award of $200,000

was unsupported by the evidence, the defendants' request for

judgment n.o.v. should have been denied and "there was a basis

for a remittitur" on the plaintiff's unjust enrichment claim.

See Benway v. Callahan, 100 Mass. App. Ct. 1114 (2021). The

panel held that remittitur was "the more appropriate remedy"

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because at trial the plaintiff "proved that he conferred a

benefit -- the subdivision approval -- on the Callahans, that he

expected to be compensated for his work, and that he suffered

the opportunity cost of other work." It stated that "the

Callahans retained the subdivision approval . . . that was

acquired with the help of [the plaintiff's] efforts." While the

plaintiff was not able to realize his expectation to share in

the profits of the development due to Mr. Callahan's termination

of their relationship, the plaintiff "could nonetheless seek

compensation in an amount by which the Callahans were unjustly

enriched." Accordingly, the panel ordered that the defendants'

motion for judgment n.o.v. or, in the alternative, for

remittitur or a new trial should be "modified to deny the

request for [judgment n.o.v.]." It remanded the case "for entry

of a revised order on that motion giving [the plaintiff] an

opportunity to remit so much of the damages as are excessive,

the amount of which is to be determined by the trial judge in

the first instance, or for a new trial, pursuant to Mass. R.

Civ. P. 59 (a), 365 Mass. 827 (1974)."

On remand, the same judge issued an order on remittitur

that placed a value on the plaintiff's unjust enrichment claim

at $10,000. The order further stated that "[s]hould [the

plaintiff] decline to accept this remitter, he shall be entitled

to a new trial pursuant to Mass. R. Civ. P. 59 (a) on the issue

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of damages." After the plaintiff rejected the remittitur, the

case proceeded to a jury-waived trial before a second judge.

Both the plaintiff and Mr. Callahan testified. In a thoughtful

written memorandum of decision, the second judge addressed the

parties' testimony regarding their professional relationship and

expectations as well as the elements that a plaintiff must prove

in order to recover on a claim for unjust enrichment. After

finding that "[t]here was no credible evidence from which the

court could determine by any measurable calculus what, if any,

benefit [the plaintiff's] activities provided," the judge

concluded that the plaintiff "failed to meet his burden of proof

as required on the first element of an unjust enrichment claim."

The memorandum of decision stated that "the court enters

judgment in favor of the defendant." The judgment, which was

authored by the clerk, and the corresponding docket entry stated

that the action was "dismissed on the merits" and the defendants

"will recover statutory costs."

Discussion. On appeal, the plaintiff contends that the

second judge erred by dismissing his unjust enrichment claim on

the merits because the prior panel's decision limited the scope

of any new trial to the issue of damages.

On remand, a trial court judge must follow the terms of an

appellate court's decision as to matters addressed in that

decision. See City Coal Co. of Springfield. v. Noonan, 434

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Mass. 709, 710–711 (2001). The appellate court's instructions

become "the governing 'law of the case' and should not [be]

reconsidered by the remand judge" (citation omitted). Id. at

712 (vacating portion of judgment that exceeded trial judge's

authority by reconsidering issue that appellate court already

decided). See Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168

(1939) ("The general proposition which moved [the trial court] -

- that it was bound to carry the mandate of the upper court into

execution and could not consider the questions which the mandate

laid at rest -- is indisputable").

In reversing or modifying a judgment, an appellate court

may remand a case to the trial court for a new trial limited to

the issue of damages. See, e.g., West v. Shawmut Design &

Const., 39 Mass. App. Ct. 247, 253, S.C. 421 Mass. 1108 (1995),

citing Corsetti v. Stone Co., 396 Mass. 1, 27 (1985). Although

the prior panel did not specify that any trial on remand would

be so limited, that is the most sensible interpretation of its

decision. At the first trial, the jury found for the plaintiff

on his unjust enrichment claim and awarded him $200,000. While

the prior panel found that these damages were unsupported by the

evidence, it concluded that judgment n.o.v. was improperly

entered and a remittitur or a new trial was appropriate. In

particular, the panel concluded that "a remittitur is the more

appropriate remedy" because the plaintiff "proved that he

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conferred a benefit . . . that he expected to be compensated for

his work, and that he suffered the opportunity cost of other

work." See Tody's Serv., Inc. v. Liberty Mut. Ins. Co., 496

Mass. 197, 200 (2025), quoting Columbia Plaza Assocs. v.

Northeastern Univ., 493 Mass. 570, 589 (2024) ("To succeed on an

unjust enrichment claim, a plaintiff must establish that (1) it

'conferred a measurable benefit' on the defendant, (2) it

'reasonably expected compensation,' and (3) 'the defendant

accepted the benefit with knowledge' of that reasonable

expectation").

The prior panel ordered the trial court on remand to modify

"[t]he order allowing the [defendants'] motion for JNOV, or in

the alternative, for remittitur or a new trial" and enter "a

revised order on that motion giving [the plaintiff] an

opportunity to remit so much of the damages as are excessive

. . . or for a new trial." In support of that order, the panel

cited rule 59 (a), which allows for a new trial on the issue of

damages where they are found to be excessive, provided that "the

prevailing party has first been given an opportunity to remit so

much thereof as the court adjudges is excessive." Mass. R.

Civ. P. 59 (a), 365 Mass. 827 (1974). Importantly, rule 59 (a)

"only comes into play when the issue in dispute is damages, not

an issue relating to liability." Pelletier v. Somerset, 458

Mass. 504, 522 (2010).

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On remand, the first judge stated in his order on

remittitur that, "[s]hould [the plaintiff] decline to accept

this remitter, he shall be entitled to a new trial pursuant to

Mass. R. Civ. P. 59 (a) on the issue of damages." After the

plaintiff rejected the remittitur, the case proceeded to a

second trial which both parties understood was limited to the

issue of damages. In his opening statement, the plaintiff's

counsel told the second judge that "the only question remaining

is how much money the [plaintiff] is owed. And, you know,

that's what we're going to be presenting to you today." The

defendants' counsel similarly acknowledged that "[t]he only part

of the case that remains is whether plaintiff can prove any

damages for his unjust enrichment claim."

The plaintiff contends that, following the second trial,

the second judge departed from the prior panel's mandate by

dismissing the plaintiff's unjust enrichment claim on its merits

rather than determining an award of damages. At the outset of

his memorandum of decision, the second judge stated that "[t]he

plaintiff rejected the remittitur and accordingly opted for a

new trial on Count II," the unjust enrichment claim. The judge

then concluded that, based on his review of the evidence, the

plaintiff "failed to meet his burden of proof as required on the

first element of an unjust enrichment claim," i.e., that the

plaintiff conferred a measurable benefit on the defendants. See

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Tody's Serv. Inc., 496 Mass. at 200. While the judge's

assessment of the evidence presented by the plaintiff as to

damages may be sound, his conclusion as to the first element of

the claim is in tension with the panel's determination that the

plaintiff "proved that he conferred a benefit" and could "seek

compensation in an amount by which the [defendants] were

unjustly enriched." Furthermore, the memorandum of decision

concluded by stating that the court "enter[ed] judgment in favor

of the defendant," and the clerk-authored judgment dismissed

"the action . . . on the merits" and awarded costs to the

defendants. Those dispositions do not reflect a decision on

remand limited to the issue of damages.

As the defendants correctly point out, the prior panel "did

not direct any fact finder to determine that any amount of

damages [was] proven." In fact, the panel identified various

shortcomings in the plaintiff's evidence concerning damages at

the first trial, and it did not go so far as to hold that the

benefit proven by the plaintiff at the first trial was

"measurable." In light of these facts, we do not foreclose the

possibility that, based on the evidence presented at the second

trial, a determination of no damages on the plaintiff's unjust

enrichment claim may be appropriate. However, because it is

unclear from the memorandum of decision and judgment whether the

second judge limited the second trial to the issue of damages,

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as both the first judge and the parties at trial anticipated, we

vacate the judgment entered on July 31, 2024, and remand the

case for clarification of the judgment and, if necessary,

further proceedings consistent with this memorandum and order.4

So ordered.

By the Court (Vuono,
Desmond & Toone, JJ.5),

Clerk

Entered: November 19, 2025.

4 The defendants' request for attorney's fees is denied.

5 The panelists are listed in order of seniority.

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