Posts tagged "0905917"

Harris Acquisition Trust, et al. v. Botwinik, et al. (Lawyers Weekly No. 09-059-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-01214-BLS1 HARRIS ACQUISITION TRUST1 & others2 vs. DAN BOTWINIK & another3 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS This case presents a dispute between two investors regarding a real estate opportunity in Maine. Plaintiff, Jeffrey S. Baker, alleges various wrongdoings by defendant, Dan Botwinik. In his First Amended Complaint (FAC), Baker asserts relief under twelve (12) separate counts. The counts include claims for breach of fiduciary duty, breach of contract, breach of the covenant of good faith and fair dealing, intentional and negligent misrepresentation, violation of G.L. c. 93A, negligence and conversion. Defendants move to dismiss under Mass. R. Civ. P. 12(b)(6) only two of those counts: Counts VII (violation of Chapter 93A) and VIII (negligence). For the reasons stated below, defendants’ motion to dismiss will be allowed, in part, and denied, in part. BACKGROUND The facts as revealed by the FAC, and the documents attached to the FAC, are as follows. 1 By its trustee Jeffrey S. Baker. 2 Salem Real Estate Investment, LLC; First Day Realty Trust, by its trustee Jeffrey S. Baker; and Jeffrey S. Baker. 3 Cougar Capital Management, Inc. Botwinik is engaged in the business of real estate investment, acquisition, and management related to commercial real estate throughout New England. Botwinik is the founder and principal of defendant, Cougar Capital Management, Inc., through which Botwinik operates. Cougar is, essentially, the alter ego of Botwinik, so the two defendants will be referred to collectively as “Botwinik” in this memorandum unless more specificity is required. Botwinik seeks investors to provide capital for real estate acquisition and development. In the spring of 2016, Botwinik had a contract to acquire a residential apartment building located at 25 Hartford Street, Rumford, Maine (Property). The Property was formerly a hotel. During April and May of 2016, Botwinik had numerous telephone conferences and meetings in Boston4 with Baker regarding a potential acquisition of the Property. Initially, Botwinik sought a $ 200,000 investment from Baker to assist in the acquisition of the Property. In exchange, Baker would receive equity in the project. Botwinik provided a written offering memorandum to Baker, which represented returns of up to 17% per annum on the investment. Botwinik also represented that he would secure additional financing to provide the remaining funds necessary for acquisition and construction. Baker represented that he had the financing lined up. Finally, Botwinik represented that he had the experience and expertise to develop the property. Baker agreed to invest $ 200,000 in the project in reliance upon Botwinik’s representations. Botwinik formed Maine Coon Management, LLC (MCM) to be the vehicle to hold title to the Property. The membership interests of […]


Posted by Massachusetts Legal Resources - January 5, 2018 at 11:11 pm

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