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 […]
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 […]
Mullins v. Corcoran, et al. (Lawyers Weekly No. 12-019-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2014-02302 BLS1 JOSEPH R. MULLINS vs. JOSEPH E. CORCORAN and GARY A. JENNISON MEMORANDUM OF DECISION AND ORDER ON THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The court borrows the following introduction from one of the many other summary judgment decisions that it has written in connection with the numerous litigations that these parties have filed against one another. “Beginning in the early 1970s, the plaintiff Joseph R. Mullins and the defendants Joseph E. Corcoran and Gary A. Jennison, through many different manner of business entities, operated a very successful real estate business. In 1987, they entered into an agreement to separate, to the extent possible, Mullins interests from those of Corcoran and Jennison (the 1987 Agreement). However, many of their ventures were apparently not susceptible to separation and continued in joint ownership. This case involves entities of that nature. Since 2001, from this court’s perspective, it appears that the principal business of these individuals and their related businesses has been to sue one another. This is, at least, the fifth such case.” The instant case is now before the court on Mullins’ motion for summary judgment. In another summary judgment decision the court provided the following description of the parties’ prior business arrangements and their 1987 Agreement, which is also equally applicable to this dispute: “From the early 1970s until 1987, Corcoran, Mullins, and Jennison operated a successful 2 real estate business that involved the development and management of multi-unit affordable or mixed-income housing, as well as other real estate projects. For the most part, each project was owned by a limited partnership of which Corcoran, Mullins, Jennison, Inc. (CMJ) was the general partner. Other related entities (collectively with CMJ, the Companies) contracted to provide services to the projects, including construction, management and other related services. 1 Corcoran, Mullins, and Jennison were the sole shareholders of the Companies, owning, respectiviely, 60%, 20% and 20% of the shares of each. “In 1987, after Mullins expressed his desire to leave the business, the three of them, with the assistance of counsel, negotiated the separation and going-forward Agreement.2 Pursuant to its terms, ownership of some of the projects was transferred to Corcoran and Jennison (or entities jointly owned by them) and others to Mullins (or entities owned by him), but ownership of many projects remained as it had been, i.e., jointly owned by all three through limited partnerships of which CMJ was the general partner. These projects would continue to be serviced by the related Companies, also jointly owned by Corcoran, Jennison and Mullins, in the manner described above. “The 1987 Agreement begins with three whereas clauses, the last two of which […]