Posts tagged "Development"

Bay Colony Property Development Company, et al. v. Headlands Realty Corporation, et al. (Lawyers Weekly No. 12-069-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1784CV00936-BLS2
____________________
BAY COLONY PROPERTY DEVELOPMENT COMPANY and WILLIAM E. LOCKE, JR.
v.
HEADLANDS REALTY CORPORATION; PROLOGIS LOGISTICS SERVICES INC.; AMB PROPERTY II, L.P.; AMB PROPERTY CORPORATION; and PROLOGIS, INC.
____________________
MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND DENYING PLAINTIFFS’ CROSS-MOTION TO STRIKE
Bay Colony Property Development Company and William E. Locke, Jr., claim that Defendants hired them to plan, coordinate, and supervise the development of two different properties in Pennsylvania. They allege that Defendants promised to pay Bay Colony two percent of the development costs (the “Base Fee”) plus ten percent of the profits (the “Incentive Fee”) for its work on one site, and promised to pay the same percentage amounts to Locke for his work on the other site. Plaintiffs allege they have not been paid and are owed part of the Base Fees and all of the Incentive Fees for the two projects. Plaintiffs assert claims for breach of contract, unjust enrichment, and declaratory judgment as to enforceability of the alleged contracts.
Defendants have moved to dismiss on the ground that all claims are time barred. They argue that the statutory limitations period began to run on October 29, 2010, when AMB Property Corporation (“AMB”) sent a letter disputing whether it had any binding contract with Bay Colony. If that were correct, then all claims would be time barred—whether the Massachusetts six-year limitations period or the Pennsylvania four-year limitations period controlled—because this action was not filed in Middlesex Superior Court until November 14, 2016, more than six years later.
The Court concludes that it may consider the October 2010 letter in deciding the motion to dismiss, but that it must DENY the motion because that letter did not put Plaintiffs on notice of any actual or anticipated breach of contract.
1. Considering the 2010 Letter. Plaintiffs ask the Court to strike or at least disregard the October 29, 2010, letter that is attached to Defendants’ motion to dismiss. They argue that the Court may not consider this letter without converting
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the motion to dismiss into a motion for summary judgment because Plaintiffs did not attach the letter to, reference the letter in, or rely on the letter in drafting the complaint. The Court disagrees.
The authenticity of this letter and the fact that it was sent to Plaintiffs are not in dispute, as Plaintiffs acknowledged at oral argument.
It is therefore permissible and appropriate for the Court to consider the letter in deciding Defendants’ motion to dismiss. When deciding a motion to dismiss under Rule 12(b)(6), a court may consider “documents the authenticity of which is not disputed by the parties” without converting the motion into one for summary judgment.1 Town of Barnstable v. O’Connor, 786 F.3d 130, 141 n.12 (1st Cir. 2015), quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); accord, e.g., SFM Holdings, Ltd. v. Banc of America Securities, LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); cf. Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 228 (2012) (judicial construction of federal rules of civil procedure applies to parallel state rules). No affidavit authenticating the document is needed because the authenticity of the copy provided by Defendants has been conceded. See City of Boston v. Roxbury Action Program, Inc., 68 Mass. App. Ct. 468, 469 n.3, rev. denied, 449 Mass. 1101 (2007) (summary judgment record).
2. No Actual Breach or Unequivocal Repudiation. The October 29, 2010, did not trigger the statute of limitations, however, because it did not constitute a breach of the contractual terms alleged in the complaint, did not put Plaintiffs on notice of an actual breach of contract, and was not an unequivocal repudiation of any future contractual obligations.
This letter put Defendants on notice that “AMB disputes that there is any binding agreement between it and [Bay Colony] with respect to either project. But the letter does not assert that AMB was refusing to pay any amounts that Bay Colony
1 This makes perfect sense. If the rule were otherwise, a defendant could instead attach an undisputed document to their answer and seek judgment on the pleadings based on that document. Since a Rule 12(c) motion for judgment on the pleadings is subject to the same standard as a Rule 12(b)(6) motion to dismiss, see Boston Med. Ctr. Corp. v. Secretary of the Exec. Office of Health and Human Svcs., 463 Mass. 447, 450 (2012), such a motion for judgment on the pleadings would be indistinguishable from Defendants’ motion to dismiss in this case.
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claims it was owed for services rendered. Instead, AMB wrote that “[w]e will respond in writing to you shortly detailing AMB’s position.” The letter went on to direct Bay Colony and Locke not to do any further work on either project, and not to have any contact with AMB except through its legal counsel.
Defendants are not entitled to dismissal of this action on the ground that the termination of any contractual arrangement between AMB and Plaintiffs triggered the statute of limitations. The complaint does not allege that AMB had no right to terminate the alleged contract. As a result, nothing in the complaint suggests that contract termination was in and of itself a contract breach that would start the limitations period.
Nor are Defendants entitled to dismissal on the ground that the October 2010 letter constituted a repudiation of AMB’s future contractual obligations and thus gave rise to a claim for breach of contract.
It is not at all clear that Plaintiffs could have brought a claim under Massachusetts law for anticipatory breach of contract, even assuming that this letter was an unequivocal repudiation.2 “With few exceptions, … ‘Massachusetts has not generally recognized the doctrine of anticipatory repudiation, which permits a party to a contract to bring an action for damages prior to the time performance is due if the other party repudiates.’ ” KGM Custom Homes, Inc. v. Prosky, 468 Mass. 247, 253 (2014), quoting Cavanagh v. Cavanagh, 33 Mass. App. Ct. 240, 243 (1992), rev. denied, 413 Mass. 1107 (1992). One of the exceptions applies where there has been “an actual breach accompanied by an anticipatory breach.” Cavanagh, supra, at 243 n.5; accord Parker v. Russell, 133 Mass. 74 (1882) (where defendant promised to support plaintiff for his entire life, and stopped doing so, plaintiff could sue for past and future damages). For example, if a defendant has an alleged obligation to make period payments to the plaintiff, refuses to pay the amounts currently owed, and makes “a clear and unequivocal repudiation” of its obligation to make future payments, “the statute of limitations begins to run from the date of the repudiation”
2 Plaintiffs raise this argument under Massachusetts law. Defendants have not, at those point, asserted or made any showing that the claims asserted in this action are instead governed by Pennsylvania law.
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with respect to both past and future damages. Callender v. Suffolk Cty., 57 Mass. App. Ct. 361, 364 (2003). But the complaint does not allege, and the letter proffered by Defendants does not reveal, any actual breach of contract as of October 2010.
On the other hand, if AMB had unequivocally repudiated its alleged future contractual obligations, Defendants could have sued immediately on a quantum meruit or unjust enrichment theory. See Cavanagh, supra, at 243 n.5. Where one party contracts to provide services in exchange for future compensation, and the other party refuses to make any further payments, the party that provided the services and is seeking payment is “entitled to treat the contract as rescinded” and bring an action in quantum meruit without waiting for the time when the compensation was supposed to be paid. Johnson v. Starr, 321 Mass. 566, 569-570 (1947).
In this case, however, none of Plaintiffs claims is time-barred (assuming, as Defendants do, that the Massachusetts six-year statute of limitations applies) because the October 29, 2010, letter was not a “clear and unequivocal repudiation” of Defendants’ alleged obligation to pay the Base Fees and Incentive Fees claimed by Plaintiffs. Cf. Callender, 57 Mass. App. Ct. 364.
AMB did not assert in the 2010 letter that it would not pay any part of the amounts that Plaintiffs claim they are owed. Instead, it merely stated that AMB “disputes that there is any binding agreement” and that AMB would explain its position in more detail later on.
This letter is not a repudiation of the alleged contract because it is not “a definite and unequivocal manifestation of intention [not to render performance]” (bracketed material in original). Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010), quoting Thermo Electron Corp. v. Schiavone Constr. Co., 958 F.2d 1158, 1164 (1st Cir. 1992); see also Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 766 & 769-770 (2006) (statute of limitations on contract claim did not begin to run when insurer responded to question about retrospective premiums by stating “that it would investigate the situation and get back to insured, because insurer took no “final or definitive position” as to whether insured must pay disputed amount).
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ORDER
Defendants’ motion to dismiss the complaint is DENIED. Plaintiffs’ cross-motion to strike exhibit B to the motion to dismiss is also DENIED.
7 June 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court

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Posted by Stephen Sandberg - June 15, 2017 at 2:03 pm

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Skawski, et al. v. Greenfield Investors Property Development LLC (Lawyers Weekly No. 10-017-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11926

MICHAEL SKAWSKI & others[1]  vs.  GREENFIELD INVESTORS PROPERTY DEVELOPMENT LLC.

Hampden.     January 7, 2016. – February 11, 2016.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Jurisdiction, Land Court, Housing Court.  Land Court, Jurisdiction.  Housing Court, Jurisdiction.  Statute, Construction, Repeal.

Civil action commenced in the Hampden Division of the Housing Court Department on June 7, 2011.

A motion to dismiss was heard by Dina E. Fein, J., and the ruling was reported by her.

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Posted by Stephen Sandberg - February 11, 2016 at 5:29 pm

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Buccaneer Development, Inc. v. Zoning Board of Review of Appeals of Lenox (Lawyers Weekly No. 11-105-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

14-P-855                                        Appeals Court

BUCCANEER DEVELOPMENT, INC.  vs.  ZONING BOARD OF APPEALS OF LENOX.

No. 14-P-855.

Suffolk.     April 8, 2015. – August 11, 2015.

Present:  Berry, Milkey, & Massing, JJ.

Zoning, Special permit, Board of appeals:  decision.

Civil action commenced in the Land Court Department on January 9, 2008.

After review by this court, 83 Mass. App. Ct. 40 (2012), the case was heard by Dina E. Fein, J., sitting by designation, on a case stated.

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Posted by Stephen Sandberg - August 11, 2015 at 6:29 pm

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Skawski, et al. v. Greenfield Investors Property Development, LLC (Lawyers Weekly No. 11-018-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

13-P-1947                                       Appeals Court

MICHAEL SKAWSKI & others[1]  vs.  GREENFIELD INVESTORS PROPERTY DEVELOPMENT, LLC.[2]

No. 13-P-1947.     February 27, 2015.

Jurisdiction, Land Court, Housing Court.  Land Court, Jurisdiction.  Housing Court, Jurisdiction.

     Upon a joint motion by the defendant, Greenfield Investors Property Development, LLC (Property Development), and the plaintiffs (abutters), a judge of the Western Division of the Housing Court Department reported, for further review and determination pursuant to Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996), her order denying Property Development’s motion to dismiss.  Property Development challenges the Housing Court’s jurisdiction over the abutters’ claim.  Relying on our holding in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40 (2012) (Buccaneer), Property Development argues that with the enactment of G. L. c. 185, § 3A, establishing an expedited permit session in the Land Court for large-scale development projects and grant of concurrent jurisdiction to the Superior Court,[3] the Legislature divested the Housing Court of jurisdiction over such matters.  It asserts, therefore, that the judge erred in denying its motion to dismiss the abutters’ claim for lack of subject matter jurisdiction.  We agree and reverse the order denying Property Development’s motion to dismiss.

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Posted by Stephen Sandberg - February 27, 2015 at 9:30 pm

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Karatihy v. Commonwealth Flats Development Corp. (Lawyers Weekly No. 11-114-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us

12‑P‑1353                                       Appeals Court

RACHID KARATIHY  vs.  COMMONWEALTH FLATS DEVELOPMENT CORP.[1]

No. 12‑P‑1353.

Suffolk.     June 4, 2013.  ‑  September 18, 2013.

Present:  Cypher, Graham, & Agnes, JJ.

Employment, Termination, Retaliation.  Practice, Civil, Prima facie case.

Civil action commenced in the Superior Court Department on November 24, 2009.

The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion to reconsider was considered by her.

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Posted by Stephen Sandberg - September 18, 2013 at 2:52 pm

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Week in Review: St. George Street Development Concerns

[photo]

The following were the top articles on South End Patch from July 8 to July 12, 2013:

Graybar Electric Building to Become Apa
South End Patch News

Posted by Stephen Sandberg - July 16, 2013 at 10:05 am

Categories: Arrests   Tags: , , , , ,

Police Have ‘Major Development’ in Boston Strangler Case

Posted by Bret Silverberg

It’s been 49 years since the homicide of Mary Sullivan, but police say they have a “major development” regarding
South End Patch News

Posted by Stephen Sandberg - July 11, 2013 at 3:26 pm

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Meeting to Discuss St. George St. Development Wednesday Night

Credit: Laura Herrera

What was once the long-vacant Bethel Tabernacle Pentecostal Church on St. George Street – known fondly by some locals as the “Jesus Saves Church” – was torn down in 2011, supposedly to make way for condominiums. 

But South End Patch News

Posted by Stephen Sandberg - July 10, 2013 at 9:16 am

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Neighborhood Concerns over Development Changes on St. George Street

(Credit: Laura Herrera).

What was once the long-vacant Bethel Tabernacle Pentecostal Church on St. George Street – known fondly by some locals as the “Jesus Saves Church” – was torn down in 2011, supposedly to make way for condominiums. 

But neighbors were surprised t
South End Patch News

Posted by Stephen Sandberg - July 8, 2013 at 10:31 am

Categories: Arrests   Tags: , , , , , ,