Posts tagged "Farms"

Mullins v. Colonial Farms Ltd., et al. (Lawyers Weekly No. 12-077-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2013-04375 BLS1 JOSEPH R. MULLINS, on behalf of nominal defendants CMJ MANAGEMENT COMPANY and CMJMC, INC. vs. COLONIAL FARMS LTD., & others1 FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING JURY WAIVED TRIAL ON DAMAGES INTRODUCTION As reflected in the court’s earlier Memorandum of Decision and Order on the Parties’ Cross-Motions for Summary Judgment (the Decision, capitalized terms shall have the same meaning in this memorandum as in the Decision), it is undisputed that, at Corcoran’s direction, the Partnerships ceased making payment of the Incentive Management Fees to CMJ Management under the Supplemental Agreements in January, 2010. Further, the termination of these payments would constitute a breach of each of the Supplemental Agreements, unless Corcoran (on behalf of the Partnerships) proved at trial that (i) Corcoran, Jennison and Mullins had all agreed that the Supplemental Agreements were to be cancelled as part of the transaction in which each of them repurchased their interests in the Partnerships from Paine Webber in 1999, and (ii) this cancellation was not reflected in the 1999 transaction documents as a consequence of a mutual mistake. Following a jury trial, on March 1, 2017, the jury answered the single 1 Fawcett’s Pond Apartments Company (Fawcett), Holbrook Apartments Company (Holbrook) Marvin Gardens Associates (Marvin) Quaker Meadows Apartments Company (Quaker), Joseph E. Corcoran, and Gary A. Jennison and CMJ Management Company and CMJMC, Inc., nominal defendants. 2 question put to them in a special verdict slip concerning the existence of such a mutual mistake2: “NO.” The parties had previously agreed that if the jury found that no mutual mistake had occurred, they would submit the question of how much should have been paid to CMJ Management by the Partnerships to the court for its decision, jury-waived. The court heard evidence on this issue on March 3, 2016 (as a supplement to the evidence presented during the jury trial). Three witnesses testified and an additional six exhibits were admitted in evidence. Thereafter, the parties submitted proposed findings of fact and conclusions of law. FINDINGS OF FACT/CONCLUSIONS OF LAW Findings and Conclusions Addressing the Manner in which the Incentive Management Fees are Calculated During Years in which there were no Regulatory/Loan Restrictions on Distributions The Supplemental Agreements for four of the Partnerships—Colonial, Marvin, Quaker, and Fawcett all provided that, “to the extent funds are available for [their] payment”: The Incentive Management Fee shall be an annual, non-cumulative fee payable out of cash available therefor . . . in an amount equal to, for each year, 40% of the amount, if any, by which Cash Flow for such year exceeds one half of the maximum amount of distributable cash flow […]

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Posted by Massachusetts Legal Resources - July 1, 2017 at 2:08 am

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Cumberland Farms, Inc. v. Tenacity Construction, Inc. (Lawyers Weekly No. 12-161-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT CIV. NO. 15-1589 BLS 2 CUMBERLAND FARMS, INC., Plaintiff vs. TENACITY CONSTRUCTION, INC. Defendant MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT This case arises from a project for the construction of facilities located in Rhode Island and Massachusetts. The plaintiff Cumberland Farms, Inc. (CFI) is the owner of the properties on which the facilities were built. The defendant Tenacity Construction, Inc. (Tenacity) was the general contractor. CFI instituted this action to recover the difference between what it believes that it was obligated to pay Tenacity for its work and what it ended up paying, taking into account those amounts that CFI paid to Tenacity’s subcontractors on Tenacity’s behalf. Tenacity counterclaimed, maintaining that CFI wrongfully failed to pay Tenacity for costs attributable to winter conditions and that, to the extent it could not pay its subcontractors, this was due to CFI’s breach of contract. CFI now moves for summary judgment as to Tenacity’s counterclaims against it. Tenacity has cross moved as to the same claims, asking this Court to enter judgment in its favor. This Court concludes that CFI’s Motion must be Allowed and that Tenacity’s Motion must be Denied. BACKGROUND The following facts in the summary judgment record are undisputed.1 CFI owns properties 1 As CFI points out in its Reply Memorandum, Tenacity’s response to several of CFI’s fact allegations contain improper argument or unsupported denials. This does not comply with Rule 9(A)(b)(5). This approach is also not effective advocacy, since it obscures rather than illuminates the summary judgment record without advancing Tenacity’s position on the issues in any respect. 2 located at 15 Main Street in Northborough, Massachusetts (the Northborough Property) and at 2643 Hartford Avenue in Johnston, Rhode Island (the Johnston Property). CFI retained Tenacity as general contractor for the construction of a gas station/convenience store on the Northborough Property (the Northborough Project) and construction of a similar facility together with office space on the Johnston Property (the Johnston Project). On September 23, 2013, the parties entered into two construction contracts (the Master Contract) that governed Tenacity’s work. Ex. 8 of Joint Appendix. Under the Master Contract, Tenacity was responsible for paying the subcontractors on both Projects. The Master Contract expressly incorporated two Work Orders, one for each Project. The Northborough Project Work Order provided that work was to start at the Northborough Property on October 7, 2013 and be completed within 112 days (January 27, 2014). The Johnston Project Work Order stated that work was to begin November 4, 2013, and was to be completed within 140 days (March 24, 2013). Both projects were substantially delayed: the Johnston Project was completed May 6, 2014 […]

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Posted by Massachusetts Legal Resources - December 7, 2016 at 1:39 am

Categories: News   Tags: , , , , , , ,

Cumberland Farms, Inc. v. City Council of Marlborough (Lawyers Weekly No. 11-162-15)

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-1612                                       Appeals Court   CUMBERLAND FARMS, INC.  vs.  CITY COUNCIL OF MARLBOROUGH. No. 14-P-1612. Middlesex.     May 11, 2015. – October 15, 2015.   Present:  Cypher, Meade, & Massing, JJ. Practice, Civil, Relief in the nature of certiorari.  License. Municipal Corporations, City council.  Administrative Law, Judicial review.     Civil action commenced in the Superior Court Department on November 12, 2013.   The case was heard by Douglas H. Wilkins, J., on a motion for judgment on the pleadings.     Carey H. Smith for the plaintiff. Cynthia M. Panagore Griffin for the defendant.     CYPHER, J.  Cumberland Farms, Inc. (Cumberland Farms), appeals from a judgment of the Superior Court upholding the denial by the city council of Marlborough (council) of Cumberland Farms’s application for a G. L. c. 148, § 13, fuel storage license.  Cumberland Farms argues that the judge applied an incorrect standard of review and that he based his decision on improper factors. Background.  Pursuing a plan for a gasoline station and a convenience store in the city of Marlborough, Cumberland Farms filed with the council applications for a special permit, see G. L. c. 40A, § 9, and for a fuel storage license, see G. L. c. 148, § 13.  Two meetings of the council’s urban affairs committee were held between June, 2012, and March, 2013, on the special permit application; because the council did not consider the final conditions to the special permit, it issued by constructive grant on March 28, 2013.  The urban affairs committee then discussed the fuel storage license application on May 21, 2013, and June 19, 2013, but failed to take action at the latter meeting.  On August 2, 2013, Cumberland Farms filed a complaint in the Superior Court seeking injunctive relief to require the council to take action.  Before the complaint was considered in that court, the council voted on September 23, 2013, to deny the application for a fuel storage license, without providing any findings or an explanation of its reasoning. On November 12, 2013, Cumberland Farms filed in Superior Court the within action in the nature of certiorari, see G. L. c. 249, § 4, seeking judicial review of the council’s decision.  Following a hearing on Cumberland Farms’s motion for judgment on the pleadings, a judge denied Cumberland Farms’s motion and affirmed the council’s decision.  Judgment entered, and this appeal followed. Discussion.  Cumberland Farms requests that the judgment be reversed, […]

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Posted by Massachusetts Legal Resources - October 15, 2015 at 2:49 pm

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Verrill Farms, LLC v. Farm Family Casualty Insurance Company (Lawyers Weekly No. 11-141-14)

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-1747                                       Appeals Court   VERRILL FARMS, LLC  vs.  FARM FAMILY CASUALTY INSURANCE COMPANY. No. 13-P-1747. Middlesex.     May 2, 2014. – November 4, 2014.   Present:  Trainor, Fecteau, & Carhart, JJ.     Insurance, Business owner’s policy, Amount of recovery for loss, Construction of policy.  Contract, Insurance.       Civil action commenced in the Superior Court Department on September 17, 2010.   The case was heard by Kimberly S. Budd, J., on motions for summary judgment.     Barry P. Fogel for the plaintiff. William A. Schneider for the defendant.      TRAINOR, J.  The plaintiff, Verrill Farms, LLC (Verrill Farms), owns and operates a retail farm store in Concord.  The defendant, Farm Family Casualty Insurance Company (Farm Family), issued a “Businessowners Advantage Insurance Policy” (policy) effective August 4, 2008, to August 4, 2009, to Verrill Farms.  On September 20, 2008, Verrill Farms suffered a fire loss to its farm store.  Within two days of the fire, Verrill Farms reopened its business at alternate locations at reduced capacity.  Within another month, the business had resumed nearly full capacity in temporary facilities at nearby locations.  After the fire and during the process of restarting the business at the alternate locations, no employees were laid off.  All employees who remained on the payroll were involved in operations that allowed Verrill Farms to maintain its business and generate income. Verrill Farms submitted a claim under the policy for loss of business income, based on its loss of net income (net profit or loss) in the year after the fire, which it believed the policy covered under the loss of business income coverage.  Farm Family paid a sum considerably less than the claim made by Verrill Farms, based on its interpretation of what expenses can be included in a calculation of net profit or loss in order to determine loss of business income under the policy.[1]  Farm Family describes the question as whether it has to “pay” Verrill Farms for the cost of its ordinary payroll expense during the period of restoration, beyond the sixty-day limit contained in the policy.  See note 7, infra.  The Superior Court judge declared that Farm Family did not have to pay the cost of ordinary payroll beyond the sixty-day limit and granted summary judgment in Farm Family’s favor.  This, however, is not what Verrill Farms was seeking to recover and […]

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Posted by Massachusetts Legal Resources - November 4, 2014 at 3:51 pm

Categories: News   Tags: , , , , , , , , ,

Boston Residents Talk Chickens, Urban Farms

Residents around the city are getting a chance to share their thoughts on Boston’s proposed new rules for urban farms, markets, composting and bee- and hen-keeping. At the first public meeting on the topic, held Monday at Suffolk Law School in downtown Boston, the Boston Redevelopment Authority announced the dates of 10 additional meetings designed to gather community input about rules that could bring life to vacant lots and rooftops around the city. The meeting was led by Tad Read, senior city planner for the BRA, and attended by Boston Chief Planner Kairos Shen, other city staff and members of the Urban Agriculture Working Group, which has been meeting for almost a year and a half to develop the rules outlined in Article 89. “A couple of years ago there was a businessman in the city who wanted to start a lettuce farm, and he couldn’t do it because it’s not addressed in the zoning code; therefore it’s forbidden,” Read said. “He wasn’t the only one; there were other people who were following this national interest in urban agriculture and wanted to start farming in Boston and found they were meeting all kinds of barriers, primarily zoning. The purpose of Article 89 is to identify and address different agricultural uses so that they can be allowed or conditional, so that development can be facilitated in the city.” The proposal is one of Mayor Thomas Menino’s key initiatives, and one he hopes to see carried through before he leaves office at the end of the year, Shen said. “I know if the mayor were here he would talk about his chickens on Long Island,” Shen said, referring to the city’s first free-range chicken farm, located on Long Island in Boston Harbor. In May, the BRA released a draft document outlining the new rules proposed in Article 89, which can be viewed as a PDF on the BRA website. The rules set the allowable size and location of various agricultural activities and establish a Comprehensive Farm Review process that would help ensure farms are “good neighbors” to other businesses and residents around Boston, Read said. The Keeping of Hens Much of the discussion at the first meeting focused on hen keeping, with members of the group Legalize Chickens in Boston and others speaking in favor of less restrictions. Unlike other agricultural activities, bee- and hen-keeping are already addressed in the city’s zoning code, Read said, and each neighborhood has established its own zoning rules for those two activities. Article 89 would not supersede rules set by individual neighborhoods but would establish guidelines—such as coop size and location and number of chickens allowed […]

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Posted by Massachusetts Legal Resources - June 11, 2013 at 2:19 pm

Categories: Arrests   Tags: , , , , ,