JACQUELINE ELECTRIC & CONTRACTING, INC. v. DAVID TETREAULT & 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

25-P-750

JACQUELINE ELECTRIC & CONTRACTING, INC.

vs.

DAVID TETREAULT1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jacqueline Electric & Contracting, Inc.

(JEC), brought this action seeking damages against its former

employee, David Tetreault.3 JEC claimed that Tetreault took

1 Also known as David R. Tetreault.

2Santander Bank, N.A.; TD Bank, N.A.; Citi Cards, a
Division of City Bank; and First Essex Bank of Lawrence as
trustee process, injunctive relief, and reach and apply
defendants.

3JEC's complaint alleged the following claims: (1) larceny
by embezzlement, pursuant to G. L. c. 266 § 30; (2) conversion;
and (3) money had and received; and sought (4) a declaratory
judgment; (5) an injunction preventing Tetreault from spending
or transferring any of the funds at issue and reach and apply
relief; and (6) real estate attachments against the bank holding
the mortgage on Tetreault's home, and trustee process
attachments against the bank which financed his personal credit
card.
approximately two million dollars from the company without

authority. At trial, Tetreault did not dispute that he took

large sums of money from JEC. He maintained, however, that he

had permission from JEC's owner and president, Jacqueline

Gorman, to take the funds as compensation pursuant to an oral

employment agreement. Gorman testified that she did not

authorize the payments at issue. The jury believed Tetreault

and returned a verdict in his favor. Thereafter, JEC's motion

for a new trial, motion for judgment notwithstanding the

verdict, or, in the alternative, for a new trial, and motions

for reconsideration were denied. This appeal ensued.4

Background. The relevant facts are as follows. JEC is a

general contracting and electrical company with a principal

place of business in South Easton. As noted, Gorman is the

owner of the company. She met Tetreault in 2014 at their local

gym. After learning that Tetreault was a disabled veteran,

Gorman offered him part-time employment, which Tetreault

accepted. Tetreault began working fifteen to sixteen hours a

week and was paid $13 an hour. Initially, Tetreault's duties

consisted of cleaning up jobsites and making deliveries. As

time went on, Tetreault assumed additional responsibilities,

which included data entry of invoices, bills and banking

Tetreault, who represented himself at trial, did not enter
4

an appearance and did not file a brief.

2
statements. In view of these new responsibilities, Gorman

orally agreed to raise Tetreault's hourly wage to $15 an hour

with a weekly cap of $500 a week. Occasionally, Gorman also

permitted Tetreault to use JEC's credit card to take his wife

out to dinner and gave him gift cards as bonuses. Tetreault's

responsibilities continued to increase and soon included

managing JEC's books and accounts. Ultimately, Tetreault was

involved in all day-to-day operations of the company, aside from

buying and bidding, and had almost full responsibility for the

company's finances.5 According to Tetreault, Gorman orally

agreed to increase his salary to compensate him for the added

responsibilities and additional hours although no specific

amount of compensation was discussed.

In 2016-2017, Gorman noticed discrepancies in JEC's

accounting statements, and she questioned how JEC's "money

started disappearing." In March of 2021, she contacted JEC's

corporate accountant, Charles Woodward, with whom she claimed to

have discovered that Tetreault had altered bank statements to

disguise his use of company funds to pay his personal credit

card bills. Gorman testified that she and Woodward also found

that Tetreault hid these payments within JEC's job cost reports,

5 Tetreault testified that he was involved in new aspects of
the business and was essentially running the office, which
required him to come in at 4:30 A.M. each morning.

3
which Tetreault prepared and uploaded into QuickBooks, an

accounting software program.6 Beginning in 2020, Tetreault used

as much as $40,000 a month in company funds to cover his credit

card debts.7 By 2021, that amount had increased substantially to

between $70,000 and $100,000 a month. Gorman estimated that

Tetreault had taken almost a million dollars in 2021 before she

terminated his employment in August.

As previously noted, Tetreault admitted that he used

company funds and claimed that he did so with Gorman's knowledge

and permission. At trial he explained how he transferred money

from JEC's operating accounts to pay his credit card bills and

disguised the payments as job costs.8 Although Tetreault

acknowledged that Gorman never expressly agreed to the amount of

money he could withdraw from JEC's accounts and that he never

6 Woodward also had no knowledge of any agreement between
Gorman and Tetreault and Tetreault testified that he did not
tell Woodward about the agreement because "the agreement was
between [him and Gorman]".

7 Tetreault used his credit card to pay for gas, food, home
and auto repair, and "online gaming."

8 Tetreault testified,

" If I get a credit card statement, I would look at the
amount. I then log onto my credit card statement, make the
payment. The monies funds were transferred from JEC's
operating accounts to pay that amount. I would then credit
that amount in said checkbook, so it balanced. And then I
would put a matching invoice into commodities and do a job
cost, so the books were balanced."

4
told her how much money he was taking each month, he asserted

that Gorman was aware of the amounts he took because he gave her

the job cost reports to review. Thus, according to Tetreault,

"if there was an issue," Gorman would have "address[ed] it

[with] [him]." Gorman contradicted Tetreault's claim and

testified that she could not have known what Tetreault was doing

by examining the job cost reports because Tetreault hid the

"unauthorized" transfers by "collaps[ing] the categories" of

expenses on a project instead of listing them out on the job

cost reports as he had done previously.

At the close of all the evidence, JEC moved for a directed

verdict. The thrust of JEC's argument was that Tetreault's

testimony was so unbelievable no rational jury could accept it

as true. In addition, JEC argued that the evidence did not

warrant a finding that Tetreault and Gorman had entered into an

enforceable employment contract because the two had never agreed

on the amount of compensation to which Tetreault was entitled.

The judge denied the motion, explaining that it was "the jury's

role (and not the judge's)" to decide if Tetreault was telling

the truth. He further concluded that "there's no doubt there

was an agreement [between Gorman and Tetreault]" and the issue

for the jury was whether Tetreault took more compensation than

authorized under the agreement and, if so, how much. The judge

then informed the parties that he would instruct the jury on a

5
claim of breach of the parties' employment agreement and would

not instruct the jury on JEC's claims for conversion or money

had and received.9

Thereafter, the judge instructed the jury in accordance

with his ruling on the theory of liability and provided the jury

with two preprinted general verdict slips: one for a verdict in

favor of JEC, and one in favor of Tetreault. After deliberating

for about four hours, the jury returned its verdict. The

correct verdict slip ("VERDICT OF THE JURY FOR THE DEFENDANT")

was signed by the foreperson and dated. In addition, the

foreperson wrote "not guilty" on the verdict slip and initialed

that insertion. The transcript reflects that the judge reviewed

the verdict slip, stated that the additional words were not

necessary, and instructed the foreperson to strike the words

"not guilty." The foreperson complied, and the verdict was

returned to the court clerk, who read it aloud. The verdict was

then confirmed by the foreperson and all the jurors to be a true

verdict.

After judgment entered, JEC filed a motion for a new trial

on the ground that the judge improperly altered the jury's

verdict, and a motion for judgment notwithstanding the verdict,

9 The judge also dismissed JEC's claim of embezzlement,
reasoning that "[e]mbezzlement is not a cause of action. It's
not a civil cause of action. It's a crime." JEC does not
challenge this ruling on appeal.

6
or, in the alternative for a new trial, on the ground that the

evidence did not support the verdict and the judge erred by not

instructing the jury on conversion and money had and received.

The judge denied both motions in two separate well-reasoned

memoranda of decisions and orders.10

Discussion. 1. Denial of JEC's motions for a directed

verdict and judgment notwithstanding the verdict. JEC argues

that it was entitled to a verdict in its favor because

(1) Tetreault was not credible and no reasonable jury could find

that he had permission to pay himself such large sums of money;

and (2) the evidence did not warrant a finding that Tetreault

and Gorman had entered into an enforceable employment contract

because there was no "meeting of the minds" with regard to the

amount of Tetreault's compensation. I & R Mech. Inc. v.

Hazelton Mfg. Co., 62 Mass. App. Ct. 452, 455 (2004), quoting

Restatement (Second) of Contracts § 17 comment c (1981). We

conclude that the motions were properly denied.

Review of the denial of a motion for directed verdict or

judgment notwithstanding the verdict,

"requires us to construe the evidence in the light most
favorable to the nonmoving party [here, Tetreault] and
disregard that favorable to the moving party [JET]. . . .
Our duty in this regard is to evaluate whether anywhere in
the evidence, from whatever source derived, any combination
of circumstances could be found from which a reasonable
inference could be made in favor of the [nonmovant]."

10 JEC's motions to reconsider also were denied.

7
O'Brien v. Pearson, 449 Mass. 377, 383 (2007) (quotations

omitted). As the judge correctly noted when he denied the

motions, Tetreault's testimony provided sufficient factual

support for a reasonable inference that Gorman gave him

permission to take company funds as compensation and that he did

so pursuant to an oral agreement. Even if Tetreault's testimony

was highly implausible, the issue of credibility is "properly

left for the jury." Lupia v. Marino, 353 Mass. 749 (1967).

Here, Tetreault testified that he was authorized to withdraw

funds from JEC's accounts based on the number of hours he

worked, and that he was entitled to additional compensation

because he was working long hours in a role with significant

authority. That it may seem unlikely that Gorman would

authorize the withdrawal of such large sums or that Gorman

disputed Tetreault's claims at trial is inconsequential. The

testimony created a factual dispute which could only be resolved

upon determining Tetreault's and Gorman's credibility, a

decision the judge properly left for the jury. See Commonwealth

v. Fitzgerald, 376 Mass. 402, 411 (1978). See also Situation

Mgmt. Sys. v. Malouf, Inc., 430 Mass. 875, 879 (2000)

(resolution of whether material terms were yet to be negotiated

was fact question properly reserved for jury). Accordingly, JEC

8
was not entitled to a judgment in its favor on the ground that

Tetreault's testimony, in JEC's view, was not credible.

Additionally, while it "is axiomatic that to create an

enforceable contract, there must be agreement between the

parties on the material terms of that contract[,] . . . [i]t is

not required that all terms of the agreement be precisely

specified." Id. at 878 (citations omitted). "The parties must,

however, have progressed beyond the stage of 'imperfect

negotiation.'" Id., quoting Lafayette Place Assocs. v. Boston

Redevelopment Auth., 427 Mass 509, 517-518 & n.4 (1998), cert.

denied, 525 U.S. 1177 (1999). Although there was no dispute

that the parties did not specify the precise amount that

Tetreault was allowed to withdraw each month, Tetreault's

testimony provided a sufficient basis from which the jury could

infer that he and Gorman had agreed that he was entitled to

significant compensation. Given these circumstances, the

failure to specify the amount did not render the agreement

unenforceable.

2. Theory of liability. The judge concluded that the

evidence supported only one viable theory of liability, namely

breach of contract.11 As a result, he declined to instruct the

11JEC also challenges the judge's instruction on breach of
contract and argues that the judge erred when he stated
"Tetreault has testified that the agreement was modified . . .
to have [JEC] pay his personal credit card bills in an

9
jury on JEC's claims of conversion or money had and received.

We discern no error.

"The elements of conversion may be established by a showing

that one person exercised dominion over the personal property of

another, without right, and thereby deprived the rightful owner

of its use and enjoyment." Matter of Hilson, 448 Mass. 603, 611

(2007). At trial, the judge ruled that the evidence did not

support a claim of conversion because Tetrault had control over

JEC's finances. In other words, Tetreault properly "exercised

dominion" over the funds at issue. The judge stated:

"[conversion] does not apply here because, to prove
conversion, you have to prove that the defendant did not
have possession of the money or other property. And here,
there's no dispute that Tetreault was in charge of the
finances. He had control over where the money went.
In denying JEC's motion for a new trial, the judge explained his

ruling that conversion did not apply slightly differently.

Relying on Gossels v. Fleet National Bank, 453 Mass. 366, 372

(2009), in which the Supreme Judicial Court stated "[c]onversion

occurs only when a defendant exercises wrongful control over

specific personal property, not a debt; therefore, bank accounts

cannot be the subject of conversion[,]" the judge determined

unspecified amount," as "there was no such testimony nor
evidence of any such statements, agreements, nor . . .
understanding between the parties." However, there was no
objection to this language and, therefore, the argument is
waived, and we need not address it. See Hill v. Metropolitan
Dist. Comm'n., 439 Mass. 266, 275 (2003).

10
that Tetreault's conduct of "divert[ing] the company's credit by

use of credit cards and transfers from a bank account and then

altered bank statements and records to conceal the transfers"

did not support a claim of conversion.

Although we believe that the facts presented here are

distinguishable from those in Gossels, supra, we agree with the

judge that the evidence did not support a claim of conversion.

First, there is no question that Tetreault had control over the

company's finances. Second, and more importantly, the jury

unequivocally decided that Tetreault's control over the

company's finances was not wrongful. Thus, even if we were to

assume that the evidence established the elements of conversion,

there was no prejudicial error because the jury rejected JEC's

assertion that Tetreault took the money without authority. The

judge instructed the jury that "the issues for you to decide are

simple and pretty straightforward . . . did Tetreault take

(i.e. convert) more compensation than he was entitled to under

the employment agreement" and "if so, how much more did he take

than he was entitled to?" To answer this question, the jury had

to decide whether Tetreault had a right to the money he took.

Ultimately, JEC's claim of conversion was no more than an

alternative theory, which the jury would have rejected for the

same reason that it concluded there was no breach of contract.

11
With regard to JEC's claim that the judge erred by not

submitting its claim of money had and received to the jury, we

agree with the judge that this theory of liability only applies

where, unlike here, there is no adequate remedy at law. See

Ruiz v. Bally Total Fitness Holding Corp., 447 F.Supp.2d 23, 29

(D. Mass. 2006) ("money had and received [is an] equitable

cause[] of action . . . available to plaintiffs who lack

adequate remedies at law"). Here, the judge correctly concluded

that the evidence established that JEC and Tetreault had an

employment agreement. The dispute between the parties centered

on the terms of the agreement, and, if Tetreault breached the

agreement, the amount of damages owed to JEC. In other words,

the evidence supported a viable claim for a breach of contract,

an adequate remedy at law. See 477 Harrison Ave., LLC v. JACE

Boston, LLC, 483 Mass. 514, 523 (2019). Accordingly, we discern

no error in the judge's decision to deny JEC's request to

instruct the jury on money had and received.

3. The verdict slip. Lastly, JEC argues that it is

entitled to a new trial based on the judge's handling of the

jury verdict. JEC alleges that the judge secretly asked the

foreperson to strike the handwritten words "not guilty" on the

verdict slip and doing so was a violation of due process and

contrary to the procedure set forth in Mass. R. Civ. P. 49, 365

12
Mass. 812 (1974), regarding inconsistent verdicts. We do not

agree.

First, we are not persuaded by JEC's claim that the judge

acted secretly or in any way improperly after the jury returned

its verdict. Simply put, there was no subterfuge. After the

judge was given the verdict slip from the court officer who had

taken it from the foreperson, he said: "All right. So we don't

need the additional writing on the verdict slip. That's not

necessary. So I'm just going to ask the foreperson to cross

that out and initial it, and the verdict will otherwise stand."12

This occurred in the presence of the jury, the parties, and

counsel; the transcript reflects no sidebar discussion. The

judge responded to JEC's allegations in his memorandum and order

wherein he stated,

"The court never held a private meeting with the
foreperson of the jury or secretly altered the verdict
slip. During the return of the verdict, the judge never
called the foreperson to the bench. The foreperson never
left the jury box. The court publicly directed the
foreperson to strike out an extraneous remark on the
verdict slip . . . . Everything took place in open court
on the record."

12JEC submitted several affidavits from individuals in the
courtroom, at least four of whom were affiliated with JEC, and
each affiant stated they did not hear the judge's statement
which was captured on the record. Tetreault filed an affidavit
in which he stated he clearly recalled hearing the judge's
statement in court. Because we rely on the official transcript
which makes clear that the entire sequence of events occurred in
open court, we need not consider the information contained
within any of the affidavits.

13
Based on the foregoing, which is supported by the official

record of the proceedings, we reject without hesitation JEC's

arguments that the judge violated JEC's right to due process.13

We also reject JEC's claim that the verdict was ambiguous

or inconsistent due to the addition of the words "not guilty."

It suffices to note that the words "not guilty," in the

circumstances of this case, constituted no more than mere

"surplusage." Collings v. Pioneer Shade & Screen Co., 356 Mass.

729 (1969) (addition of written word "Guilty", to verdict for

plaintiff in civil case was "pure surplusage [and] not

inconsistent with the verdicts for the plaintiffs").

We affirm the judgment and the orders denying JEC's (i)

motion for a new trial, (ii) motion for judgment notwithstanding

13The judge imposed a sanction on JEC's counsel in
connection with his misrepresentations about what occurred in
the courtroom. Although JEC appealed from that order, it did
not address the issue in its brief and, therefore, any argument
regarding the sanction is waived. See Mass. R. A. P.
16(a)(9)(A), as appearing in 481 Mass. 1628 (2019).

14
the verdict or, in the alternative for a new trial, and (iii)

motions for reconsideration, and the order imposing sanctions.

So ordered.

By the Court (Vuono, Neyman &
Sacks, JJ.14),

Clerk

Entered: May 12, 2026.

14 The panelists are listed in order of seniority.

15