Mullins v. Corcoran, et al. (Lawyers Weekly No. 09-032-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV02302-BLS2 ____________________ JOSEPH R. MULLINS v. JOSEPH E. CORCORAN and GARY A. JENNISON ____________________ MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO BIFURCATE AND DEFENDANTS’ MOTIONS IN LIMINE This lawsuit concerns failed attempts to develop certain property in Somerville, Massachusetts. The parties jointly own the property through a closely-held company known as Cobble Hill Center LLC. They agreed to develop it together in a 1987 contract that divided up many of their other real estate interests. Joseph Mullins has asserted claims against Joseph Corcoran and Gary Jennison for breach of contract and breach of fiduciary duty. Corcoran and Jennison, in turn, assert similar counterclaims against Mullins for breach of contract and breach of fiduciary duty. The case is scheduled to be tried before a jury starting on May 14, 2018. The Court rules as follows on three motions in limine that were filed by Corcoran and Jennison and a motion to bifurcate trial into separate liability and damages phases that was filed by Mullins. 1. Measure of Damages. The Court will ALLOW the request by Corcoran and Jennison within Motion in Limine No. 1 for leave to present evidence of alleged damages calculated as the future profits Defendants claim to have lost as a result of Mullins’ alleged breaches of contract and fiduciary duty. The general measure of damages is the same for breach of contract as for breach of fiduciary duty; under either theory, a prevailing claimant is entitled to be put in the position they would have been in if there had been no breach of duty. See, e.g., Mailman’s Steam Carpet Cleaning Corp. v. Lizotte, 415 Mass. 865, 869 (1993) (breach of contract); Berish v. Bornstein, 437 Mass. 242, 270 (2002) (breach of fiduciary duty) In an appropriate case, lost profits can be the appropriate measure of damages either for breach of contract or breach of fiduciary duty, assuming that the claimant – 2 – can meet its burden of proving that the alleged breach proximately caused a future loss of profits. See, e.g., Situation Management Systems, Inc. v. Malouf, Inc., 430 Mass. 875, 880 (2000) (breach of contract); O’Brien v. Pearson, 449 Mass. 377, 387 (2007) (breach of fiduciary duty). Defendants’ proposed methodology for calculating lost profits is permissible in concept. They intend to present evidence calculating their counterclaim damages as the future market value of the building they had wished to contract, minus the development costs that would have been incurred to construct the building, minus the residual value of the property in its current state. If the jury were to credit Defendants’ evidence, that would be a permissible way to value damages. See, e.g., Neal v. Jefferson, 212 […]