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Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-046-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2016-01432-BLS2
WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. &
JOHN AND CYNTHIA REED FOUNDATION,
Plaintiffs
vs.
CEDAR HILL RETREAT CENTER, INC. &
BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC.,
Defendants
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANTS’ MOTIONS TO DISMISS
PLAINTIFFS’ AMENDED COMPLAINT
This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Property). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the Property, the defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the Property and the Grantor of the Conservation Restriction. Plaintiffs allege that the Ballou Channing induced the Foundation into making a $ 3 million gift in return for Ballou Channing’s promise to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”).
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This lawsuit was instituted on May 4, 2016. In their original Complaint, plaintiffs asserted the following counts against both defendants: breach of the Gift Agreement (Count I); breach of the Conservation Restriction (Count II); promissory estoppel (Count III); unjust enrichment (Count IV); and violation of Chapter 93A (Count V). The defendants filed motions to dismiss. On December 30, 2016, this Court allowed those motions in part. See Memorandum of Decision and Order dated December 30, 2016 (the 2016 Decision). As to Ballou Channing, this Court dismissed Count II because it no longer owned the Property that was subject to the Conservation Restriction. As to Cedar Hill, this Court dismissed Counts I, III and IV – those counts based on the Gift Agreement –because Cedar Hill was not a party to the Gift Agreement. Count V alleging a violation of Chapter 93A was dismissed as to both defendants.
Six months later, plaintiffs amended their complaint to assert new claims against both defendants and to add back some claims that this Court had previously dismissed. Specifically, the Amended Complaint contains a new claim against both defendants based on the same allegations that were the basis of Counts I, III and IV of the original Complaint, but with a wrinkle: this new claim asserts a breach of what is described as a “Letter Agreement” between the defendants Ballou Channing and Cedar Hill. Plaintiffs say that they only learned of this Letter Agreement as a result of discovery in the case but now claim they are third party beneficiaries entitled to enforce it. As a consequence of this new count for breach of contract (the Letter Agreement), the Amended Complaint added Cedar Hill back to the previously dismissed claims against it of unjust enrichment and promissory estoppel. The Amended Complaint also added Ballou Channing back as a defendant on the claim alleging a breach of the Conservation Restriction, even though this Court in its 2016 Decision had dismissed Ballou Channing as a defendant on that claim. Finally, the Amended Complaint accuses Ballou
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Channing of intentional misrepresentation, an entirely new claim. See Count VI of Amended Complaint.
Defendants now bring a second set of motions to dismiss, targeting these new counts and claims, but also asking this Court to dismiss those counts that I had previously concluded would remain in this case. This Court admits to some frustration in dealing with this latest round of motions which, like the earlier ones, are brought pursuant to Rule 12(b) (6), Mass.R.Civ.P. On one hand, plaintiffs seem intent on circumventing this Court’s earlier decision with new (and ultimately unsupported) theories which needlessly complicate what would seem to be a fairly straightforward case. On the other hand, in moving to dismiss all counts (including those that this Court already declined to dismiss earlier), the defendants make essentially the same arguments they made in connection with their first set of motions. To the extent that they rely on materials beyond the four corners of the Complaint, this Court does not understand why it is important (much less appropriate) to litigate these issues under the standard applicable to Rule 12(b) (6) motions.
Ultimately, this Court concludes that the new claims must be dismissed and the old claims must remain – at least until discovery is complete. The Motions are therefore Allowed in part and Denied in part. Thus, after much expenditure of time and resources, this case is back to where it stood in December 2016: the case survives but only as to those claims that remained in the case after this Court’s 2016 Decision.
BACKGROUND
Because many of the allegations made in the Amended Complaint are the same as those alleged in the original one and are fairly summarized in the 2016 Decision, this Court will not
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rehash all of them here, except to summarize those allegations (including any new ones) that are necessary to place the issues in context.
The Reeds are abutters to the Property, which consists of about twelve acres of land. When Ballou Channing acquired the Property, it had certain restrictions on its use. In 2007 when the Reeds learned that these restrictions were soon to expire, they entered into discussions with Ballou Channing about extending and strengthening the restrictions. Ballou Channing represented that it would take about $ 150,000 a year to preserve and maintain the Property without the need to engage in commercial revenue-generating activity. The Reeds, through the Foundation, agreed to make a $ 3 million gift to Ballou Channing to cover these expenses. On October 17, 2008, a Conservation Restriction was recorded with the Plymouth Registry of Deeds that named Ballou Channing as Grantor and plaintiff Wildands Trust as Grantee.
The following year, Ballou Channing created Cedar Hill, a 501(c)(3) organization, to own and operate the Property. Ballou Channing also filed a Petition with the Supreme Judicial Court seeking approval of a transfer of the Property to Cedar Hill, as required by G.L.c. 214 § 1. Exhibit C to Amended Complaint.1 The Petition alluded to the $ 3 million gift from the Foundation and stated that it was to compensate Ballou Channing “for (i) its loss of development rights; (ii) the expense associated with creating the Conservation Restrictions and operating and maintaining the Property in accordance with such restrictions over the years; (iii) the beneficial impact the Conservation Restrictions have upon the surrounding community; and (iv) the fact that the Conservation Restrictions will encumber the Property in perpetuity.” ¶ 15 of Exhibit C to Amended Complaint. The Petition added, however, that neither Ballou Channing nor the
1 The Amended Complaint states that the Petition was filed “without notice” to the plaintiffs. It does not state that the plaintiffs were unaware of its contents, however.
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Foundation had restricted Ballou Channing’s use of the $ 3 million gift “nor envisioned the fund would be used exclusively for the management of the Property.” Id. The Petition further stated that Ballou Channing and Cedar Hill had entered into a Letter Agreement (attached to the Petition) to ensure that Cedar Hill continued to use the Property in accordance with the terms of the Conservation Restriction. To accomplish those ends, Cedar Hill would receive $ 1.4 million from Ballou Channing. That Petition was subsequently approved and the Property was transferred to Cedar Hill by Quitclaim Deed in October 2009. See Exhibit D to Amended Complaint.
The Letter Agreement referenced in the Petition forms the basis of one of the new claims at issue and is attached to the Amended Complaint as Exhibit A. The parties to it are Ballou Channing and Cedar Hill. The Letter Agreement contains certain “Recitals” which acknowledge, among other things, the Conservation Restriction with Wildlands Trust. The Letter Agreement states that $ 1.4 million is being transferred to Cedar Hill to be used “for the purpose of maintaining, operating and improving the Property in accordance with the Conservation Restriction and this Agreement.” It gives member congregations of Ballou Channing permission to use the Property so long as they comply with the Conservation Restriction. Under a section entitled “Dispute Resolution,” the Letter Agreement sets forth a procedure that Ballou Channing must follow in the event that it “becomes aware of or reasonably suspects” that Cedar Hill is not operating the Property in compliance with the Conservation Restriction. If mediation fails, the parties to the Letter Agreement may bring their dispute to Land Court.
The Amended Complaint alleges that since this transfer, Cedar Hill has engaged in commercial revenue-generating activities on the Property which are in violation of the
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Conservation Restriction. It alleges that Cedar Hill has not used the funds to preserve the Property but that it has rather used some portion of them to promote this commercial activity. Ballou Channing is aware of Cedar Hill’s violations and has refused to take steps to end them. Finally, the Amended Complaint accuses Ballou Channing of intentional misrepresentation, relying on essentially the same allegations that form the basis for plaintiffs’ claim that Ballou Channing breached the Gift Agreement.
DISCUSSION
As a result of the 2016 Decision, this case consisted of essentially two claims. One claim (that involved three separate counts) named Ballou Channing as the sole defendant and was based on allegations relating to its receipt of the $ 3 million gift. The second claim was against Cedar Hill as the sole defendant and alleged breach of the Conservation Restriction, with Wildlands Trust as the sole plaintiff. The Amended Complaint now seeks to reinsert Cedar Hill as a defendant on the first set of claims on the theory that both plaintiffs are third party beneficiaries to the Letter Agreement, and are entitled to enforce its terms against both defendants. The Amended Complaint also seeks to add Ballou Channing back as a defendant on the claim based on a violation of Conservation Restriction and to include the Foundation once again as a plaintiff. This Court concludes that these amendments fail to state a claim on which relief may be granted, for some of the same reasons set forth in its earlier opinion.
A. The Letter Agreement
Count III of the Amended Complaint alleges a breach of the Letter Agreement. Count IV and Count V alleging unjust enrichment and promissory estoppel are based in part on the
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same allegations. 2 This Court concludes neither plaintiff has a legal basis for asserting any rights under the Letter Agreement so that Count III must be dismissed, and Counts IV and Count V surviving only as to Ballou Channing as the recipient of the $ 3 million gift. See fn. 3, supra.
The parties to the Letter Agreement are the defendants Cedar Hill and Ballou Channing. Plaintiffs are not parties to the Letter Agreement nor are they identified as having any rights under it. Plaintiffs claim that they nevertheless have standing to enforce its terms because they are third party beneficiaries to it. This Court disagrees.
The Restatement (Second) Contracts § 304 defines the circumstances under which a nonparty to a contract can claim a right to enforce it as a third party beneficiary: “[a] promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty.” (Emphasis added). Intended beneficiaries are different from “incidental beneficiaries,” who have no right under the contract, even though they may benefit from it. Restatement (Second) Contracts § 315. Section 302 of the Restatement defines the difference between them: one is an intended beneficiary if “(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” As explained in comment (e) of Section 304 of the Restatement, one qualifies as an intended beneficiary “where the promisee clearly manifests an intention to confer on the beneficiary a legal right to enforce the contract.”
In accordance with these principles, this Court must look to the language of the Letter Agreement and the circumstances surrounding it to determine whether either plaintiff here is an
2 They are also based on allegations relating to the Gift Agreement, a claim that remains in this case even after today’s decision. Because of that, Count IV and V will not be dismissed but may be asserted against Ballou Channing only.
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intended third party beneficiary. Anderson v. Fox Hill Village Homeowners Corp, 424 Mass. 365, 366 (1997). If the terms of the contract are clear and unambiguous, then its interpretation – including whether it confers rights on a third party – is a question of law. Although there is no requirement that the intended beneficiary be identified by name in the contract, the intent of the contracting parties to create in that third person a right to enforce the contract must be “clear and definite.” James Family Charitable foundation v. State Street Bank and Trust Co., 80 Mass.App.Ct. 720, 724 (2011), quoting Lakew v. MBTA, 65 Mass.App.Ct. 794, 798 (2006). Thus, even if the contract is ambiguous, there must be some circumstances surrounding the making of the contract that demonstrate in a clear and definitive manner that the parties to the contract intended to create rights in a nonparty to enforce its terms.
In the instant case, there is nothing in the language of the Letter Agreement or in the circumstances surrounding it (as described in the Amended Complaint) which suggest that either Wildlands Trust or the Foundation has the right to enforce its terms. As described in the Petition to the SJC, its purpose was to ensure that, in exchange for Ballou Channing’s transfer of the Property together with certain funds, Cedar Hill would maintain and operate the Property in compliance with the Conservation Restriction. If it did not, then the Letter Agreement spelled out exactly what rights Ballou Channing (not the plaintiffs) had against Cedar Hill. Although the plaintiffs may stand to benefit from the Letter Agreement, they are at best incidental beneficiaries, with no legal basis to pursue either Ballou Channing or Cedar Hill for a breach, assuming that one occurred. Indeed, plaintiffs conceded at a hearing on this Motion that neither plaintiff even knew of the Letter Agreement until discovery in this case.
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B. The Conservation Restriction
Count II alleges a breach of the Conservation Restriction. In its 2016 decision, this Court dismissed this claim to the extent that it was asserted against defendant Ballou Channing, since it no longer owned the Property. It also concluded that only plaintiff Wildlands Trust, not the Foundation, could enforce it. In an apparent effort to circumvent that ruling, plaintiffs have added back both of these parties, ostensibly on the grounds that Cedar Hill is merely an “instrumentality” of Ballou Channing, which still “controls” the Property. The allegations in the Amended Complaint, even construed in the light most favorable to plaintiffs, do not support that.
Cedar Hill is a separate entity which, according the Petition approved by the SJC, is a nonprofit corporation duly registered with the Attorney General. The Amended Complaint alleges no facts to dispute that. According to the Petition and to the Letter Agreement, Cedar Hill was created to take over from Ballou Channing the responsibilities of maintaining the Property, which was conveyed to Cedar Hill after the SJC approved the Petition. The Amended Complaint does not dispute that either. That Cedar Hill had certain contractual obligations to Ballou Channing under the Letter Agreement– or that the Letter Agreement gave Ballou Channing certain rights in the event Cedar Hill did not comply — does not change the fact that these are separate corporate entities. The Amended Complaint does not allege any facts to support the notion that Ballou Channing and Cedar Hill are alter egos, such that these corporate formalities should be ignored. In short, Ballou Channing is not a proper defendant on this claim, for the same reasons that this Court articulated in its 2016 Decision. Nor is the Foundation a proper plaintiff for the reasons set forth in that same decision.
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C. Intentional Misrepresentation
To state a claim for fraudulent misrepresentation, the complaint must allege facts showing that: “(1) the defendant made a misrepresentation of fact; (2) it was made with the intention to induce another to act upon it; (3) it was made with the knowledge of its untruth; (4) it was intended that it be acted upon, and that it was in fact acted upon; and (5) damage directly resulted therefrom.” Equipment & Systems For Industry, Inc. v. Northmeadows Construction Co., Inc. 59 Mass.App.Ct. 931 (2003), quoting Graphic Arts Finishers, Inc. v. Boston Redev. Authority, 357 Mass. 40, 44 (1970). Rule 9(b), Mass.R.Civ.P. requires that a claim of fraud must be alleged with particularity. The Amended Complaint fails to satisfy this heightened pleading standard or allege facts sufficient to support each of the requisite elements. Specifically, it fails to identify a misstatement of existing fact, or to allege that it was made by the defendant with knowledge as to its falsity at the time that it was made.
The misrepresentation claim (Count VI) makes only two allegations that could be at all construed as relating to these two elements. First, it states that Ballou Channing “failed to disclose its plans for the Foundation’s $ 3 million Gift, which plans were wholly inconsistent with the Foundation’s expressed donative intent and the basis on which Wildlands Trust entered into the Conservation Restriction.” ¶ 89 of Amended Complaint. This is vague at best. Moreover, a failure to disclose can form the basis for liability only if one has a duty to disclose, and the Amended Complaint shows no such duty to disclose anything. Whatever obligation the Foundation had to use the money in a certain way is embodied in the Gift Agreement, but breach of a contractual obligation does not amount to fraud. Second, this count states that Ballou Channing affirmatively misrepresented to the Foundation how much it would cost to maintain and preserve the Premises. This is apparently based the following allegation:
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In 2007 and into 2008, in meetings between the Reeds on behalf of the Foundation, and members of the Cedar Hill Committee of Ballou Channing, including several meetings that occurred in the living room of the Retreat Center, Ballou Channing represented to the Foundation that approximately $ 150,000 per year would be required to preserve and maintain the Premises.
Amended Complaint, ¶ 20. It is questionable whether this yearly estimate as to future expenses is a fact at all as opposed to a nonactionable statement of opinion or prediction as to future events. Moreover, the Amended Complaint fails to allege who made this prediction (except in the most general way) or that the speaker knew that it was false when made. These are allegations critical to support a claim as serious as fraud. In sum, this count fails to meet the standard of either Rule 9(b) or of Iannachino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
D. Remaining Claims
In addition to asking this Court to dismiss those claims which are new to the case, the defendants seek dismissal of those claims that the 2016 Decision left in the case. Specifically, Ballou Channing seeks to dismiss that count alleging a breach of the Gift Agreement on the grounds that there is no writing that satisfies the Statute of Frauds. It makes additional arguments as to the claims for unjust enrichment and promissory estoppel, but these arguments are all fact-based and thus not properly decided on a Rule 12(b) (6) motion. As to the Statute of Frauds, this Court already addressed this issue in its 2016 Decision: although it concluded that the plaintiffs could not rely on the Conservation Restriction to satisfy the Statue of Frauds,3 it was persuaded by plaintiffs that, because discovery might very well turn up writings sufficient to comply with the Statute of Frauds, this issue was best resolved by way of a motion for summary judgment. This Court continues to be of that view.
3 Inexplicably, the plaintiffs continue to argue that the Conservation Restriction is sufficient. Reasserting arguments that have already been rejected by this Court, however, is not only improper but does nothing to advance the case and is a waste of judicial and litigation resources.
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Cedar Hill — the sole defendant on the claim alleging a breach of the Conservation Restriction — separately argues that this Court should narrow that claim to the single violation alleged to have occurred on September 8, 2012. This same issue came up on July 13, 2017 in connection with plaintiffs’ Motion to Compel Discovery and defendants’ Motion for a Protective Order. This Court initially agreed with the defendants, but then reconsidered following oral arguments on the instant motions. As explained in a Memorandum of Decision dated October 17, 2017, this Court is now of the view that Count II is not limited to the September 8, 2012 event but also encompasses activities on the Property following that date.
CONCLUSION AND ORDER
For the foregoing reasons, Ballou Channing’s Motion to Dismiss is ALLOWED as to Count II (breach of Conservation Restriction), Count III (breach of Letter Agreement) and Count VI (intentional misrepresentation). It is DENIED as to Count I (breach of the Gift Agreement) and as to Counts III and IV to the extent that these counts are based on the Gift Agreement. As to Cedar Hill’s Motion to Dismiss, it is ALLOWED as to Counts III through V, so that
Only Count II remains as to Cedar Hill and then only to the extent that Count II is asserted by Wildlands Trust.
_________________________________
Janet L. Sanders
Justice of the Superior Court
Dated: November 10, 2017
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Posted by Stephen Sandberg - December 7, 2017 at 9:30 pm

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