United States Court of Appeals For the First Circuit

No. 22-1837

GIBSON FOUNDATION, INC.,

Plaintiff, Appellant,

v.

ROB NORRIS; PIANO MILL GROUP, LLC,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Howard, Circuit Judges.

Kurt Schuettinger, with whom Andrea Bates, Bates & Bates LLC, Steven D. Howen, and Law Offices of Steven Howen, were on brief, for appellant. Daniel J. Gibson, with whom SKB, Attorneys was on brief, for appellees.

December 4, 2023 BARRON, Chief Judge. This case involves a rhinestone-

adorned piano, the now-deceased entertainer Liberace, a massive

snowstorm, and a collapsed roof. But the appeal that is before us

turns on something far less dramatic: the ins and outs of

Massachusetts bailment and contract law. For the reasons set forth

below, we conclude that this body of law requires that we reverse

the grant of summary judgment to the defendants on the plaintiff's

claims that concern the piano but affirm the denial of summary

judgment to the plaintiff on those same claims.

I.

The plaintiff is Gibson Foundation, Inc. ("Gibson

Foundation"), which is based in Nashville, Tennessee, and is the

charitable arm of Gibson Brands, Inc. ("Gibson Brands").1 Gibson

Brands sells several lines of musical instruments and accessories,

including a line of pianos that Baldwin Piano & Organ Company

("Baldwin") manufactures.

Baldwin is an American piano manufacturer that has been

a subsidiary of Gibson Brands since 2001. That year, Baldwin filed

for bankruptcy and was subsequently purchased by General Electric

Capital Corp. ("GE"). GE then assigned its rights, title, and

interest in the asset purchase agreement to Gibson Piano Ventures,

Inc. ("Gibson Piano Ventures") and designated Gibson Piano

Unless otherwise specified, the facts set forth are not in 1

dispute.

- 2 - Ventures as the buyer of Baldwin and "substantially all" its

assets.2

The defendants are Rob Norris and The Piano Mill Group,

LLC ("Piano Mill"). Norris owns and operates Piano Mill, which is

based in Gloucester, Massachusetts, and sells pianos on a retail

basis, services pianos, and offers a location for piano lessons.

At all relevant times, Norris and Piano Mill were authorized retail

sellers of Baldwin pianos.

Gibson Foundation filed suit against Norris and Piano

Mill on December 16, 2019, in the United States District Court for

the Middle District of Tennessee, based on diversity of

citizenship. See

. The complaint alleged claims

under Tennessee law for breach of contract, breach of bailment,

and conversion. The complaint alleged that Norris and Piano Mill

had breached a warehousing agreement and bailment with Gibson

Foundation when they refused to return to Gibson Foundation -- upon

Gibson Foundation's request -- a piano that Liberace had used in

his performances.3

The Tennessee district court concluded that there was no

personal jurisdiction over Norris and Piano Mill and that venue

2The record contains no evidence explaining the relationship between Gibson Brands and Gibson Piano Ventures. 3Gibson Brands filed for bankruptcy in 2018 and subsequently conveyed its rights in the piano at issue in this appeal to Gibson Foundation.

- 3 - was improper. The case was then transferred to the United States

District Court for the District of Massachusetts. Gibson

Foundation's amended -- and now operative -- complaint in the

United States District Court for the District of Massachusetts

sets forth several claims against Norris and Piano Mill, all of

which are brought under Massachusetts law. This appeal concerns

two of those claims, which are for breach of bailment and breach

of contract.

The breach-of-bailment claim alleges, as did Gibson

Foundation's earlier breach-of-bailment claim under Tennessee law,

that the transfer of the Liberace piano from Gibson Brands to

Norris and Piano Mill was a bailment and that Norris and Piano

Mill are liable for breach of bailment because they refused to

return the piano to Gibson Foundation when they were requested to

do so. The breach-of-contract claim alleges, as did Gibson

Foundation's earlier breach-of-contract claim under Tennessee law,

that the transfer of the same piano from Gibson Brands to Norris

and Piano Mill was made pursuant to a warehousing agreement between

Gibson Brands and Norris and Piano Mill, and that Norris and Piano

Mill breached the agreement by not returning the piano to Gibson

Foundation when they were requested to do so.

Norris and Piano Mill answered the complaint while also

filing counterclaims, though none of the District Court's rulings

on the counterclaims are at issue in this appeal. In answering

- 4 - Gibson Foundation's complaint, Norris and Piano Mill asserted that

Gibson Brands had no ownership interest in the piano at the time

of Gibson Brands's initial request that the piano be returned.

Norris and Piano Mill further asserted in answering the complaint

that Gibson Brands sent the e-mail request to return the piano

only after there had been widespread media coverage of Piano Mill

having a Liberace piano and the roof of one of the company's

buildings having collapsed during a massive snowstorm.

The parties filed cross-motions for summary judgment on

January 28, 2022. Norris and Piano Mill sought summary judgment

on, among other claims, Gibson Foundation's breach-of-bailment and

breach-of-contract claims under Massachusetts law. Norris's and

Piano Mill's motion included as an exhibit an appraisal of the

piano that contained pictures of it, approximated its value, and

estimated that 10,000 rhinestones originally adorned it. Gibson

Foundation sought summary judgment as to all its claims and

Norris's and Piano Mill's counterclaims.

On the breach-of-bailment claim, the District Court

granted Norris and Piano Mill summary judgment and denied Gibson

Foundation summary judgment on the ground that Gibson Foundation's

claim for breach of bailment is time-barred under the relevant

statute of limitations. On the breach-of-contract claim, the

District Court granted Norris and Piano Mill summary judgment and

denied Gibson Foundation summary judgment on the ground that

- 5 - "[Gibson] Foundation has not produced sufficient evidence from

which a jury could find an agreement on the material terms of a

contract." Gibson Foundation appeals both the grants of summary

judgment to Norris and Piano Mill on its breach-of-bailment and

breach-of-contract claims and the denials of its motion for summary

judgment on those same claims.

II.

We review the District Court's summary-judgment rulings

de novo and draw all inferences in favor of the party against whom

summary judgment was entered. Pleasantdale Condos., LLC v.

Wakefield,

(1st Cir. 2022). Summary judgment

is appropriate if, based on the record, there remains no dispute

of material fact -- that is, if, based on the record, there is no

factual determination which a "rational factfinder" could make as

to the "existence or nonexistence" of a fact that "has the

potential to change the outcome of the suit" -- such that "the

moving party is entitled to judgment as a matter of law." Borges

ex rel. S.M.B.W. v. Serrano-Isern,

(1st Cir. 2010).

The fact that the parties have filed cross motions and

appealed those cross motions does not alter these general

standards. See Wightman v. Springfield Terminal Ry. Co.,

(1st Cir. 1996). Rather, we review each party's motion

independently, viewing the facts and drawing inferences as

- 6 - required by the applicable standard, and we determine, for each

side, the appropriate ruling. See

III.

We start with the challenge to the District Court's grant

of summary judgment on the breach-of-bailment claim to Norris and

Piano Mill. The District Court relied for that ruling on the

ground that the claim is time-barred. The question of whether the

claim is time-barred is one of Massachusetts law. See West v.

Conrail,

, 39 n.4 (1987) ("When the underlying cause of

action is based on state law, and federal jurisdiction is based on

diversity of citizenship, state law . . . provides the appropriate

period of limitations . . . .").

Our analysis begins with a review of the relevant legal

background, which reveals that the key precedent for us to consider

is a decision of the Massachusetts Appeals Court ("MAC"), Aimtek,

Inc. v. Norton Co.,

(Mass. App. Ct. 2007). We

then explain why, given that precedent, we must reverse the grant

of summary judgment. We make clear, however, that Aimtek does not

affect resolution of Norris's and Piano Mill's alternate argument

that Gibson Brands never had ownership of the piano, which we

address in Part IV.

A.

The parties do not dispute that Gibson Foundation's

breach-of-bailment claim is timely if the six-year limitations

- 7 - period that Massachusetts sets forth for certain contract claims

applies, see

, or that the claim is

time-barred if, as the District Court held, the three-year

limitations period that Massachusetts sets forth for tort claims

applies instead, see Mass. Gen. Laws ch. 260, § 2A. The parties'

dispute concerns only whether the District Court was right to hold

that, on this record, it is indisputable that Gibson Foundation's

breach-of-bailment claim is in effect no different from a claim

for conversion and replevin and so for that reason is subject to

the three-year limitations period for tort claims. Gibson

Foundation contends that the District Court erred in so ruling

because a reasonable juror could find based on the record that the

claim is subject to the six-year limitations period that applies

to certain contract claims.

We assume for present purposes that there is a genuine

issue of material fact in dispute as to whether, as Gibson

Foundation alleges, there was both a valid bailment and a breach

of that bailment, such that the breach-of-bailment claim would

survive summary judgment if it were timely. After all, if there

were no such genuine issue of material fact in dispute, then there

would be no reason for us to address the timeliness issue at all,

as in that case the grant of summary judgment to Norris and Piano

Mill could be affirmed even if the claim were timely. See John G.

Danielson, Inc. v. Winchester-Conant Props. Inc.,

, 37

- 8 - (1st Cir. 2003) (explaining that a judgment may be affirmed on any

ground manifest in the record).

No Massachusetts statute sets forth the limitations

period that applies specifically to a breach-of-bailment claim.

Thus, under Massachusetts law, we must look "to the 'gist of the

action' or the essential nature of the plaintiff's claim,"

Hendrickson v. Sears,

(Mass. 1974), to

determine the applicable limitations period.

The District Court appears to have undertaken this

inquiry and reasoned that, under Massachusetts law, the "essential

nature" of all breach-of-bailment claims makes any such claim a

species of a claim for replevin and conversion, both of which are

claims that sound in tort. The District Court then appears to

have concluded on that basis that Gibson Foundation's breach-of-

bailment claim is subject to a three-year limitations period, as

that claim was in its nature a tort claim just as surely as is a

claim for replevin or conversion.

In Aimtek, however, the MAC explained that "no hard and

fast rule has emerged to dictate the applicable limitations period

for claims arising from bailments" based on their "essential

nature."

. Rather, the MAC concluded that

while, under Massachusetts law, some breach-of-bailment claims are

properly subject to the three-year limitations period for tort

claims, others are properly subjected to the six-year limitations

- 9 - period for certain contract claims.

. The MAC then

proceeded in Aimtek to assess whether the "essential nature, or

gist" of the plaintiff's breach-of-bailment claim in that specific

case made it subject to the three-year or the six-year limitations

period,

, and concluded that the claim's contractual

nature made the longer limitations period applicable,

.

Of course, a decision by the MAC does not necessarily

bind us here, as our task is to determine how the highest court of

Massachusetts, which is the Massachusetts Supreme Judicial Court,

would rule on the timeliness issue. See Showtime Ent., LLC v.

Town of Mendon,

(1st Cir. 2014). But we see no

basis for engaging in a different inquiry to determine the

applicable limitations period for this breach-of-bailment claim

than the one in which the MAC engaged in Aimtek. Indeed, the

District Court's analysis supplies no reason for our doing so, as

the District Court appeared to be relying, in part, on Aimtek

itself in concluding that this claim was subject to the limitations

period for tort claims. Moreover, on appeal, the parties appear

to agree that if the reasons that Aimtek gave for determining that

the "essential nature, or gist,"

, of the breach-

of-bailment claim at issue there was contractual in nature equally

support the conclusion that the breach-of-bailment claim at issue

here is also contractual in nature, then the six-year limitations

period would apply to this claim just as the MAC held it applied

- 10 - to that claim. As a result, assuming that this breach-of-bailment

claim otherwise can survive summary judgment, we must decide

whether a reasonable juror could find based on the record that the

claim at issue here is in all relevant respects the same as the

claim in Aimtek. Reviewing de novo, Pleasantdale Condos.,

, we conclude, for the reasons that we will next explain,

that a reasonable juror could so find.

B.

In Aimtek, a Massachusetts company, Aimtek, Inc.

("Aimtek"), entered into a contract in 1984 with another

Massachusetts-based business, Norton Company ("Norton"), to

provide liquid nitrogen and argon gases to Norton. Under that

contract, Norton had a lease with Aimtek to store two 1,500-gallon

tanks, owned by Aimtek, at Norton's Worcester, Massachusetts,

facility to hold such gas products. Aimtek,

.

Roughly a decade later, in 1994, Norton notified Aimtek

that it was terminating the contract.

After the contract was

terminated, however, Aimtek left the tanks with Norton, at Norton's

request, in the event that Norton wished to resume purchasing gas

for those tanks from Aimtek in the future.

.

Norton later scrapped the tanks, and more than three but

less than six years after Aimtek learned that the tanks had been

scrapped, Aimtek filed a claim against Norton in Massachusetts

state court that alleged that Norton was in breach of a bailment

- 11 - with respect to the tanks.

Following a jury verdict in

Aimtek's favor on the claim, Norton moved for judgment

notwithstanding the verdict on the ground that the three-year

limitations period for tort claims applied to Aimtek's breach-of-

bailment claim and thus that the claim was time-barred.

. The trial court denied the motion after determining that

the six-year limitations period for certain contracts claims

applied instead, Aimtek, Inc. v. Norton Co., No. 01-0709C,

(Mass. Supp. Sept. 7, 2005), and the MAC then affirmed

that ruling on appeal, Aimtek,

.

The MAC reasoned that the six-year limitations period

for certain contract claims applied because the record supportably

showed that the underlying bailment stemmed from "a consensual

arrangement between the parties that the two 1,500-gallon tanks

would remain at Norton's facility after the written rental

agreement expired, in case Norton wished to resume gas deliveries

in the future."

(emphasis added). Moreover, the MAC

emphasized that the record sufficed to show that the bailment

established by this consensual arrangement was for the "mutual

benefit" of the parties and so was not a gratuitous bailment in

which Norton received "no benefit or compensation from the tanks

left behind at its facility."

The MAC based this latter

determination on the ground that the record sufficed to show that,

under the consensual arrangement that resulted in the bailment,

- 12 - Aimtek benefitted by avoiding the expense of removing the tanks

while Norton benefitted because "the tanks were left in Norton's

possession at Norton's request, to facilitate possible future gas

deliveries."

The MAC did make a point of explaining that the

determination of whether a bailment was gratuitous or for the

mutual benefit of the bailor and the bailee does not necessarily

determine whether a breach-of-bailment claim is subject to the

three-year limitations period for tort actions or the six-year

limitations period for certain contract actions.

at 1119 n.5.

The MAC concluded that "[t]he cases do not lend themselves to such

a convenient dichotomy."

But the MAC still ruled that the

bailment in question was subject to that latter contract-based

limitations period because the underlying bailment was the result

of a "consensual arrangement . . . for the parties' mutual

benefit."

(emphasis added).

We see nothing in the record to distinguish the case at

hand from Aimtek. Rather, we conclude that a reasonable juror

could find based on the record that the breach-of-bailment claim

here, like the breach-of-bailment claim in Aimtek, stems from a

consensual arrangement between the parties that mutually

benefitted them and not from a merely gratuitous bailment, as

Norris and Piano Mill contended is the case for the first time at

- 13 - oral argument. In this regard, we conclude that, based on the

record, a reasonable juror could find as follows.

On June 20, 2011, Baldwin's business-development

manager, Tom Dorn, e-mailed several people, including Norris,

about the immediate availability of two new model BD275/BH275

concert grand pianos from Baldwin Dongbei. Norris then responded

by e-mail that "Piano Mill would still very much like to have a

Baldwin concert grand to use for symphony rentals and promotional

opportunities" but that he was "not currently in a position to

shell out the 30k to purchase one outright." In addition, Norris

mentioned in the e-mail that his business partner was connected to

several touring acts and wondered whether Dorn might be able to

come up with a "creative arrangement" to help both Piano Mill and

Baldwin gain exposure.

Dorn responded, in turn, with an e-mail that stated that

such an arrangement was "beyond [his] scope" but that he would

forward Norris's e-mail to someone in Gibson Brands's

entertainment-relations department. Norris sent Dorn an e-mail in

response in which Norris thanked Dorn and added as "just another

thought" that Piano Mill had a full-service restoration shop and

that, "[i]f there was a road worn concert grand in Baldwin[']s

stable," Norris would be able to do any restoration required "to

get it to concert level play and back on the road."

- 14 - After this e-mail exchange, Norris had several phone

calls with Dorn and Jim Felber, an employee in Gibson Brands's

entertainment-relations department, about a Baldwin model SD-10 in

which Norris might be interested. That model was the Liberace

piano that is now at the center of this dispute.

During one phone call between Norris and Felber about

the piano, Felber told Norris that it was on the seventh floor of

the Manhattan Center in the Hammerstein ballroom, which was being

renovated. Felber further told Norris in the phone call that the

piano would be "all yours" if Norris could remove it by the end of

the week.

Subsequently, on July 11, 2011, Norris's contractors

moved the piano from the Hammerstein ballroom to Norris's

restoration shop in Hampton, Massachusetts. After picking up the

piano, Norris e-mailed Dorn and Felber to "[t]hank [them] both for

[the] opportunity," and Norris asked whether he could "make some

cosmetic repairs as well as . . . do some fine regulation" on the

piano. Felber responded that he was "OK with repairs and aware of

missing pieces."

In the years following, the piano stayed in Norris's and

Piano Mill's possession, and the piano was used as a promotional

tool, including in connection with a Liberace biopic. It was not

until years later, after Gibson Brands and Gibson Foundation

executed a bill of sale purporting to transfer ownership of a

- 15 - "Baldwin Liberace SD-10" to Gibson Foundation, that Gibson

Foundation sued Norris and Piano Mill over the Liberace piano at

the center of this dispute.

Based on the above communications and events, a

factfinder could reasonably determine that, insofar as there was

a bailment of the piano at all, it was a "consensual arrangement,"

, between Gibson Brands and Norris and Piano Mill, as

Gibson Brands requested that Norris and Piano Mill take possession

of the piano, and Norris and Piano Mill agreed to do so. Moreover,

a factfinder could also reasonably determine from these

communications and events that Gibson Brands as bailor and Norris

and Piano Mill as bailees each benefitted from this consensual

arrangement, as a reasonable jury could find based on the record

that Gibson Brands obtained storage for a valuable asset and

avoided the costs of moving the piano while Norris and Piano Mill

obtained substantial publicity and marketing opportunities from

having possession of the piano.

Norris and Piano Mill do make one further argument in

defense of the District Court's statute-of-limitations ruling,

although they advanced this argument, too, for the first time at

oral argument. They contend that because there was a contract

between the bailor and the bailee in Aimtek, there was a basis

there that is not present here for treating that breach-of-bailment

claim as contractual in nature. But the contract in Aimtek that

- 16 - Norris and Piano Mill identify was a rental agreement that had

expired prior to the bailment.

. We thus do not see

how Aimtek may be distinguished on this ground. Accordingly, we

hold that Norris and Piano Mill are not entitled to summary

judgment on Gibson Foundation's breach-of-bailment claim on the

ground that the claim is time-barred.

IV.

Norris and Piano Mill argue, as a fallback, that they

are entitled to summary judgment on the breach-of-bailment claim

even if the claim is not time-barred because, as a matter of law,

the claim is without merit. See John G. Danielson,

(explaining that a judgment may be affirmed on any ground manifest

in the record). They point out that a bailment "is the delivery

of goods by their owner to another for a specific purpose, and the

acceptance of those goods by the other, with the express or implied

promise that the goods will be returned after the purpose of the

delivery has been fulfilled." Goudy & Stevens, Inc. v. Cable

Marine, Inc.,

(1st Cir. 1991) (emphasis added);

see Nash v. Lang,

(Mass. 1929). Thus, they

explain, one of the essential elements of a bailment is that the

bailor owns, or holds title to, the property in question, see

Goudy,

, and they stress that the burden of proving

the existence of a bailment under Massachusetts law rests with the

party that alleges the breach of a bailment, see Orient Overseas

- 17 - Container Line v. John T. Clark & Sons of Bos., Inc.,

(D. Mass. 2002). They then contend that Gibson Foundation

has failed to meet its burden to show that there is a supportable

basis for finding that it has proved the element of ownership

because "[Gibson] Foundation [has] provided nothing more than

unsupported, conclusory statements and vague documentation in

support of its claim that [its] alleged predecessor in interest,

Gibson Brands, Inc., owned the piano during the timeframe up to

and including July 2011" -- the month in which Norris and Piano

Mill picked up the piano and transferred it to their restoration

shop in Hampton, Massachusetts.4

To back up this argument, Norris and Piano Mill point to

the fact that Cesar Gueikian, Brand President of Gibson Brands,

testified that, although he believed Gibson Brands acquired the

piano through the 2001 asset purchase agreement of Baldwin, he was

unaware of the existence or location of any inventory documents

that show the piano coming into Gibson Brands's possession.

Moreover, we note that the record does show that, while the asset

Norris and Piano Mill also contend that Gibson Foundation's 4

breach-of-bailment claim fails as a matter of law because Gibson Foundation cannot show that a reasonable juror could find based on the record that the material terms -- whether express or implied -- of the alleged bailment agreement are sufficiently definite to create an enforceable agreement. Because this contention mirrors Norris's and Piano Mill's contention as to why Gibson Foundation's breach-of-contract claim fails, we address this argument in Part V, where we discuss the claim for breach of contract.

- 18 - purchase agreement did contemplate the sale of Baldwin's "personal

property" and specified that certain categories of personal

property would be excluded from the sale, the agreement did not

identify whether any pianos were included among the personal

property being sold.

In addition, Norris and Piano Mill point to the fact

that, when Gibson Brands filed for bankruptcy in 2018, Gibson

Brands did not disclose the piano as one of its assets in its

filings. Norris and Piano Mill argue that because Gibson

Foundation cannot point to any evidence in the record of Gibson

Brands having title or ownership of the piano, there is no

supportable basis in the record for finding that Gibson Foundation

can meet its burden to show that there was a bailment. The

contention is that, to meet that burden, Gibson Foundation must

show that a reasonable juror could find based on the record that

Gibson Brands owned the piano at the time that Norris and Piano

Mill took possession of it. Therefore, Norris's and Piano Mill's

argument goes, Gibson Foundation's breach-of-bailment claim fails

as a matter of law given that Piano Mill cannot breach a bailment

that does not exist.

Under Massachusetts law, however, the burden to prove

the ownership element for a bailment may be satisfied with proof

of the bailor's possession of the property at issue at the time

that the claimed bailment was established, given that "possession

- 19 - [of personal property] is prima facie evidence of title, good

against everybody but one proving property; that is, against any

one but the right owner." Magee v. Scott,

(1851); see Hurley v. Noone,

(Mass. 1964).

And it is undisputed that Gibson Brands physically possessed the

piano before Gibson Brands transferred it to Norris and Piano Mill.

Thus, as Norris and Piano Mill identify no evidence that anyone

other than Gibson Brands owned the piano before or during the time

of the piano transfer, we see no basis for affirming the District

Court's grant of summary judgment to Norris and Piano Mill on the

ground that, as a matter of law, Gibson Foundation cannot show

that a reasonable juror could find based on the record that Gibson

Brands owned the piano at the relevant times.5 See Magee,

.

Our determination on this score does not mean, however,

that there is merit to the related contention by Gibson Foundation

that we must reverse the District Court's denial of Gibson

Foundation's own summary-judgment motion on the claim. To be sure,

as we have explained, Norris and Piano Mill have not conclusively

rebutted Gibson Foundation's prima facie case for ownership of the

piano because they have not indisputably established that a party

Norris and Piano Mill do not argue that, if there was a 5

bailment, it was between them and Gibson Brands, not them and Gibson Foundation -- the current plaintiff. We thus do not address that contention.

- 20 - other than Gibson Brands was the rightful owner when the piano was

in Gibson Brands's possession.

But it remains the case that

the record contains no inventory documents that show how the piano

came into Gibson Brands's possession and that the record shows

that Gibson Brands failed to include the piano as one of its assets

in its 2018 bankruptcy filings. A reasonable factfinder could

conclude on this record, therefore, that Gibson Brands did not own

the piano at the relevant times. Thus, because there is a genuine

dispute of material fact as to the ownership issue, we affirm the

denial of the grant of summary judgment to Gibson Foundation on

this claim.

V.

We turn our attention now to Gibson Foundation's breach-

of-contract claim. "To prove a breach of contract under

Massachusetts law, a plaintiff must show 'that there was a valid

contract, that the defendant breached its duties under the

contractual agreement, and that the breach caused the plaintiff

damage.'" Shaulis v. Nordstrom Inc.,

(D.

Mass. 2015) (quoting Guckenberger v. Boston Univ.,

(D. Mass. 1997)).

As we have explained, a reasonable juror could find based

on the record both that the bailment at issue here was a consensual

arrangement between Gibson Brands and Norris and Piano Mill and

that this arrangement was for the "mutual benefit" of the parties

- 21 - to it, Aimtek,

. Our question with regard to

the breach-of-contract claim, however, is whether, Massachusetts

bailment law aside, a reasonable juror could find based on the

record that there was a warehousing agreement6 between the parties

as to this piano such that there was a valid contract between them.

For, if a reasonable juror could not so find, then there could be

no breach-of-contract claim that could survive summary judgment.

Under Massachusetts law, "[i]t is axiomatic that to

create an enforceable contract, there must be agreement between

the parties on the material terms of that contract, and the parties

must have a present intention to be bound by that agreement."

Situation Mgmt. Sys., Inc. v. Malouf, Inc.,

(Mass. 2000). And while "[i]t is not required that all terms of

the agreement be precisely specified, and the presence of undefined

or unspecified terms will not necessarily preclude the formation

of a binding contract[,] . . . [t]he parties must . . . have

progressed beyond the stage of 'imperfect negotiation.'"

(citation omitted). Moreover, although an exchange of e-mail

communications can constitute a contract under Massachusetts law,

see Fecteau Benefits Grp., Inc. v. Knox,

(Mass.

App. Ct. 2008), "[a]ll the essential terms of a contract must be

definite and certain so that the intention of the parties may be

Gibson Foundation sometimes refers to this warehousing 6

agreement in its briefing to us as a "loan agreement."

- 22 - discovered, the nature and extent of their obligations

ascertained, and their rights determined," Cygan v. Megathlin,

(Mass. 1951).

The District Court ruled that Norris and Piano Mill were

entitled to summary judgment on Gibson Foundation's breach-of-

contract claim because a reasonable juror could not find based on

the record that all the essential terms of the alleged contract

were definite and certain. Gibson Foundation disagrees.

According to Gibson Foundation, the record suffices to

show that Gibson Brands offered for Norris and Piano Mill to take

possession of the piano on the condition that they would have to

return it to Gibson Brands if and when Gibson Brands asked for it.

Gibson Foundation then goes on to argue that a reasonable juror

could find based on the record that Norris and Piano Mill accepted

this offer by taking possession of the piano.7 Accordingly, Gibson

7 Gibson Foundation also contends that the agreement that Norris and Piano Mill themselves posit as having been struck is just as simple -- the offer was that Norris and Piano Mill could have the piano, so long as they bore the expense of moving it, and the acceptance occurred when Norris and Piano Mill picked up the piano and stored it. Gibson Foundation then argues that under that view of the agreement, there is "everything needed to be a contract [--] mutual assent through offer and acceptance and consideration for each party." But this contention does little to support Gibson Foundation's position on appeal. As Gibson Foundation concedes, Norris and Piano Mill accepted Gibson Brands's offer that Norris and Piano Mill could have the piano so long as they bore the expense of moving it by taking possession of the piano. Thus, if the simple contract at issue were only the one that Gibson Foundation argues even Norris and Piano Mill accept

- 23 - Foundation argues, a reasonable juror could find based on the

record that the claimed warehousing agreement with respect to the

piano has "everything needed to be a contract [--] mutual assent

through offer and acceptance and consideration for each party."

Gibson Foundation describes the consideration as Gibson Brands

being able to avoid storage costs and Norris and Piano Mill

benefitting from having a promotional item to use until Gibson

Brands (and now Gibson Foundation) were to ask for the piano to be

returned. Reviewing de novo, Pleasantdale Condos.,

, we agree with Gibson Foundation.

As we have previously explained, a reasonable juror

could find on this record that Gibson Brands owned the piano before

and when Norris and Piano Mill picked it up. Gibson Foundation

also points to several facts in the summary-judgment record that

supportably show that Gibson Brands did not transfer ownership of

the piano to Norris and Piano Mill. In that regard, the record

supportably shows that Norris, via an e-mail to Dorn, asked to

use -- not buy -- a piano from Gibson Brands for promotional

opportunities and that Norris, after picking up the piano from the

existed, then there would appear to be no basis in the record for finding that the breach-of-contract claim could survive summary judgment, because, in that event, there would appear to be no basis in the record for finding that the contract had been breached.

- 24 - Hammerstein ballroom, then asked for permission via e-mail to

Gibson Brands to conduct repairs on it.8

In concluding that a reasonable factfinder could find on

this record that the "simple" contract posited by Gibson Foundation

exists, we emphasize that the aspects of the record just described

supportably show that both parties understood which piano was to

be picked up from the Hammerstein ballroom and that this piano was

the one that grounds this claim. Moreover, although the District

Court emphasized to the parties in the final pretrial conference

on October 14, 2022, that there was no "price" specified for this

simple contract, the contract that is being alleged here is not

for the sale of goods. Cf. Jacobson v. Perman,

(Mass. 1921) ("[T]he memorandum was sufficient evidence of [a]

contract . . . [because] it contains all the essential elements of

the contract . . . [including] the quantity sold and the price to

be paid therefor . . . ."). Rather, the consideration that Gibson

Brands allegedly received took the form of avoiding storage

costs -- in consequence of Norris and Piano Mill having taken

possession of the piano -- and not a payment. Thus, we do not

8 Gibson Foundation also raises on appeal the issue of whether the District Court improperly disregarded, as hearsay, evidence of internal e-mails between Gibson Brands employees that tended to show the existence of a warehousing agreement between Gibson Foundation and Piano Mill. Because we find, even without these e- mails, a genuine issue of material fact as to whether a contract exists between Gibson Foundation and Norris and Piano Mill, we do not address this contention.

- 25 - see, and Norris and Piano Mill do not explain, why there must be

a price for a contract of this nature to be valid. And, finally,

while the District Court also suggested at the final pretrial

conference that there was no agreement between the parties as to

duration, a reasonable juror could find on this record that the

parties agreed that Norris and Piano Mill would retain possession

of the piano until Gibson Brands requested that it be returned.

Thus, because we conclude that a reasonable juror could find on

this record that the alleged contract's "essential terms" were

"definite and certain" such that the "intention of the parties

could be discovered, the nature and extent of their obligations

ascertained, and their rights determined," Cygan,

, we must reverse the District Court's grant of summary judgment

to Norris and Piano Mill on the breach-of-contract claim.9

At the same time, we also must reject Gibson Foundation's

contention that it is entitled to summary judgment on the claim

and thus that we may not uphold the District Court's ruling to the

contrary. As discussed in Part IV, there is a genuine issue of

material fact as to whether Gibson Foundation or its purported

predecessor in title, Gibson Brands, owned the piano in question.

And that is significant because if Gibson Foundation or Gibson

9 Norris and Piano Mill do not argue that, if there was a warehousing agreement, it was between them and Gibson Brands, not them and Gibson Foundation -- the current plaintiff. We thus do not address that contention.

- 26 - Brands never owned or held title to the piano in question, then

there would be no basis in this record for finding that there was

a warehousing agreement between the parties.

Moreover, Norris and Piano Mill contend that, in any

event, even if a reasonable juror could find based on the record

that Gibson Brands did own the piano before Norris and Piano Mill

took possession of it, a reasonable juror also could find on this

record that, insofar as Gibson Brands owned the piano, Gibson

Brands then gave it away to Norris and Piano Mill as a gift.10

They point to the evidence in the record that supportably shows

that Felber, an employee in Gibson Brands's entertainment-

relations department, told Norris and Piano Mill that the piano

would be "all yours" if Norris and Piano Mill could remove the

piano by the end of the week, which they did. Thus, because we

conclude that Norris and Piano Mill are right that the record

evidence would permit a rational factfinder to determine that the

piano was given to them as a gift, we must reject, for this reason,

too, Gibson Foundation's challenge to the District Court's denial

of its summary-judgment motion.

Of course, should this case proceed to trial, the parties 10

would be able to introduce evidence in addition to what is in the summary-judgment record.

- 27 - VI.

The District Court's award of summary judgment to Norris

and Piano Mill for the breach-of-bailment claim is reversed, while

the District Court's denial of summary judgment to Gibson

Foundation for the breach-of-bailment claim on alternative grounds

is affirmed. In addition, the District Court's award of summary

judgment to Norris and Piano Mill for the breach-of-contract claim

is reversed, while its denial of summary judgment to Gibson

Foundation for the breach-of-contract claim is affirmed. Costs

are taxed in favor of Gibson Foundation.

- 28 -