Posts tagged "Newton"

Commonwealth v. Newton N., a juvenile (Lawyers Weekly No. 10-019-18)

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12354

COMMONWEALTH  vs.  NEWTON N., a juvenile.

Berkshire.     November 7, 2017. – February 5, 2018.

Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Delinquent Child.  Probable Cause.  Insanity.  Mental Impairment.  Juvenile Court, Delinquent child.  Practice, Criminal, Juvenile delinquency proceeding, Complaint, Arraignment, Dismissal.

Complaint received and sworn to in the Berkshire County Division of the Juvenile Court Department on June 2, 2016. read more

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Posted by Stephen Sandberg - February 6, 2018 at 2:56 am

Categories: News   Tags: , , , , ,

Newton Presbyterian Church, et al. v. Smith, et al. (Lawyers Weekly No. 09-048-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2017-0804-BLS 2
NEWTON PRESBYTERIAN CHURCH and
THE PRESBYTERY OF BOSTON
Plaintiffs
vs.
GARRETT SMITH, et al.1
Defendants
and
NEWTON COVENANT CHURCH,
Third Party Plaintiff,
vs.
PRESBYTERIAN CHURCH (USA),
Third Party Defendant
MEMORANDUM OF DECISION AND ORDER
ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
This action arises from a dispute over the ownership of property of the Newton Presbyterian Church (“NPC”), a member of the national Presbyterian denomination known as the Presbyterian Church (USA) (the “PCUSA”). In January 2017, a breakaway faction within the NPC led by the individual defendants conducted a vote purporting to effect the departure of NPC from the Presbyterian Church in order to affiliate with a conservative evangelical organization called the Evangelical Covenant Church (“ECC”). Calling themselves the “Newton Covenant
1 Carmen Aldinger, Anders Brownworth, Thomas Devol, Harold Jones, Doris Kellom, Kristen Lucken, Roger Mark, Rosalind Picard, Daniel Romaine, Beatrice Yankey and the Newton Covenant Church.
2
Church” (“NCC”), the defendants assumed control over NPC’s bank accounts and other property, including the church building located at 75 Vernon Street in Newton.
The Presbytery of Boston is the governing body for all PCUSA member churches in the greater Boston area, including the NPC. Pursuant to PCUSA’s Constitution (which includes provisions to deal with schisms within congregations), the Presbytery has determined that the loyal Presbyterian members of the NPC are the “true church” and that the NCC members controlled by the breakaway faction are no longer members of the NPC, with no power to control NPC property. This lawsuit seeks enforcement of this determination together with damages. The matter is now before the Court on plaintiffs’ Motion for Partial Summary Judgment on Count I seeking declaratory relief. This Court concludes that the motion must be Allowed, for following reasons.
BACKGROUND
In support of their motion, plaintiffs primarily rely on documents, the authenticity of which is not in question. Those documents together with other undisputed facts reveal the following. 2
A. The PCUSA Hierarchical Structure
The PCUSA is a Protestant Christian denomination consisting of congregations and a hierarchy of four governing councils that make up “one church.” The four governing councils are — in ascending order–the session, the presbytery, the synod, and the General Assembly. A session, elected by a congregation, governs at the congregational level. A presbytery, made up of clergy and elders from congregations in a specific geographical area, governs the churches in
2 Although purporting to dispute most of the facts cited in the Rule 9(A)(b)(5) statement proffered by the plaintiffs, the defendants do not cite to any facts in the summary judgment record nor do they allege any particular facts to show that a genuine dispute indeed exists.
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a specific locality. A synod, made up of members of presbyteries within a region, governs the presbyteries in a multi-state region. The General Assembly governs the 16 regional synods at the national level. The acts of each council are subject to review by the next higher council.
A central tenet of the denomination is “connectionalism,” with all member congregations and governing councils agreeing to conduct worship in accordance with the PCUSA Constitution (the Constitution). 3 The Constitution consists of the Book of Confessions and the Book of Order, which contains the church governance provisions. See Ex A of Joint Appendix. The Constitution defines the jurisdiction of each council, with powers not mentioned expressly reserved to the presbyteries. A congregation as described in the Constitution “refers to a formally organized community chartered and recognized by a presbytery” and governed by the Constitution. Members of the congregation put themselves under the leadership of the session and the higher councils. A congregation may not hire a new minister or terminate that relationship without its presbytery’s approval.
This hierarchical decision-making structure is, as stated in the Constitution, “applicable to all matters pertaining to property.” As to ownership of that property, the Constitution contains a Trust Clause, which states:
All property held by or for a congregation, Presbytery, a synod, the General Assembly or the Presbyterian Church (U.S.A.) whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a congregation or of a higher council retained for the production of income, is held in trust nevertheless for the use and benefits of the Presbyterian Church (U.S.A.)
3 The Constitution states: “The mutual interconnection of the church through its councils is a sign of the unity of the church. Congregations of the Presbyterian Church (U.S.A.) while possessing all the gifts necessary to be the church are nonetheless not sufficient in themselves to be the church. Rather they are called to share with others both within and beyond the congregation the task of bearing witness to the Lordship of Jesus Christ in the world.” Ex A of Joint Appendix.
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Ex A of Joint Appendix at G-4-0203. This Trust Clause was in direct response to the Supreme Court’s holding in Jones v. Wolf, 443 U.S. 595, 603 (1979), discussed infra. The PCUSA’s predecessor organization, based primarily in the northern United States, added this clause in 1981. After it combined with the Presbyterian denomination based primarily in the southern United States, the General Assembly of the PCUSA approved the clause for inclusion in the PCUSA Constitution.
In addition to this Trust Clause, the Constitution limits a congregation’s right to sell, encumber, or mortgage its real property without written permission of the presbytery. When a congregation is formally dissolved or becomes extinct, its property “shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit and appoint” or it may be “sold or dispose of as the presbytery may direct.” In the event of a schism within the congregation, the Constitution sets forth a process for determining which of the factions is entitled to the property, stating that if there is no reconciliation or division into separate congregations, “the presbytery shall determine if one of the factions is entitled to the property because it is identified by the presbytery as the true church within the Presbyterian Church (U.S.A.).” The Constitution expressly states that this determination does not depend on which faction received the majority vote within the congregation at the time of the schism.
B. The Presbytery of Boston and the NPC
The Presbytery of Boston (the Presbytery) was incorporated in 1888 for the purpose of holding church property in the event that a congregation “shall cease to carry out the purposes for which it was originally created.” See Ex. C of Joint Appendix. Ten years later, NPC was incorporated and has continued its membership in the PCUSA and the governing councils ever since. Its
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Articles of Incorporation state that “the purpose for which the corporation is committed is the establishment and maintenance of the public worship of God in accordance with the principles and doctrines of the [PCUSA].” In 1956, NPC adopted corporate Bylaws, which have been amended over the years. See Ex. BB, as adopted October 5, 2008. The Bylaws provide that members of the corporation are those who are “in full communion of the Newton Presbyterian Church.” Article 2 of Bylaws, attached as Ex BB of Joint Appendix. “A member of this corporation who shall for any cause cease to be a member in full communion of the Newton Presbyterian Church shall forthwith cease to be a member of this corporation and shall forfeit and lose all claims and rights to the [sic] all the privileges, franchises and property of the corporation.” Article 2 of Bylaws, Ex. BB.
NPC has at various times recognized the authority, participated in and benefited from the hierarchical structure of PCUSA. It has submitted its session minutes to the Presbytery for annual review, elected and sent delegates to Presbytery meetings, and paid annual fees. Members of the NPC session, known as “ruling elders,” take an oath as required by the Constitution in which each vows to be governed by PCUSA polity and to abide by its principles. Pursuant to its Bylaws, the powers of NPC’s Board of Trustees are “subject to the regulations in the Constitution” of the PCUSA.
The NPC has over the year’s also demonstrated familiarity with PCUSA policies concerning property. It has received loans from the Presbytery for property-related projects, and in 1986 asked for and received approval from the Presbytery to purchase a home for its pastor. In seeking that approval, the Financial Secretary of the NPC stated: “It is our understanding from the Book of Order, sect. G-8-0501 that both the purchase and the mortgage must have written Presbytery approval before they can be consummated.” A similar acknowledgement was
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contained in a filing with the Registry of Deeds related to that purchase. In allowing the Presbytery to host meetings at the church in 1988, the NPC noted “we are basically stewards of facilities which have been given to us for the use of the wider church and community.” In 1989, the congregation followed the Presbytery’s advice not to convert the church property into an historic building because PCUSA “buildings need to be plastic enough to meet the needs of our mission today and tomorrow.” At its September 2015 Fall Congregational Meeting, the session recognized that “PCUSA polity is that NPC holds the building in trust for the Presbytery.” Even more recently, at its April 2016 Called Meeting of the Session, the session again recognized that NPC “can’t leave with property” of the PCUSA.
C. The Schism
The genesis of the dispute that cause the schism within the Newton congregation stems from a 2011 vote by a majority of the presbyteries approving an amendment to the Constitution allowing LGBT members to be ordained. In 2015, the majority of presbyteries approved another amendment permitting same-sex marriage in PCUSA churches. These two amendments were among the issue that led the NPC session to begin what the governing documents describe as a “denominational discernment process.” That is a process by which congregations can seek dismissal from the PCUSA to another “Reformed” denomination within the Protestant tradition. Under the Constitution, the relationship between a congregation and PCUSA “can be severed only by constitutional action on the part of the presbytery.”
In accordance with this constitutional process, the Presbytery of Boston assigned a Response Team to NPC in September of 2015 to discuss next steps, to investigate the conflict within the congregation, and to provide for the Presbytery a final report, including recommendations regarding dismissal. The NPC session originally considered seeking dismissal to the Evangelical
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Covenant Order of Presbyterians (ECO). ECO is a denomination in the Reformed tradition. It then considered dismissal to the more conservative Evangelical Covenant Church (ECC), which does not permit same-sex marriage or ordination of gay men or women. The Response Team informed the session that the Presbytery would be unable to dismiss NPC to the ECC denomination because ECC is not a Reformed denomination as required by Article 13.3 of the PCUSA Constitution.
In October of 2016, the Presbytery, at the request of some members of the NPC congregation and pursuant to the Constitution, appointed an Administrative Commission to oversee the situation and determine if the congregation was in schism. In early January 2017, the Administrative Commission learned that the NPC session planned to hold a vote to “withdraw” from the PCUSA, affiliate with the ECC and amend NPC’s bylaws. The Administrative Commission wrote a letter to the NPC congregation stating that this change of denominational affiliation could be effected only by a vote of the Presbytery. Certain members of the NPC, led by the individual defendants, nevertheless held a putative vote on January 15, 2017 purporting to change NPC’s denominational affiliation from the PCUSA to the ECC. A majority of congregation members present voted in favor.
After the vote, the Administrative Commission informed the NPC Session that all who voted to leave PCUSA were no longer members of NPC. It also determined on behalf of the Presbytery that the NPC members who wanted to remain members of the PCUSA constituted the “true church,” or the “true” NPC. The Presbytery instructed former NPC members, including the individual defendants, to “refrain from taking any action purporting to affect the ownership, possession, use or status of the church property” or to change NPC’s name. The breakaway
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faction has ignored these directions, and has changed signage at the building at 75 Vernon Street to the “Newton Covenant Church” where it conducts religious services. This lawsuit ensued.
DISCUSSION
Before turning to the legal arguments made in support of and against the motion, this Court addresses the defendants’ assertion that this motion is premature. They note that that this Court (Salinger, J.) limited discovery in this case to the exchange of documents, thus preventing them from taking depositions or conducting third party discovery. They argue that it would be unfair for this Court to decide this case based on affidavits of individuals they have not had a chance to question. The problem with this argument is that the issues raised by the instant motion can (and should) be decided based on documents, which speak for themselves. Although providing the Court with context, the affidavits are unnecessary. Moreover, the defendants fail to identify any genuine fact dispute that would preclude summary judgment. Indeed, even their replies to the Statement of Undisputed Material Facts go no further than the bare assertion that the fact is “disputed.” This is simply not enough. This Court therefore turns to the legal issues raised by this motion.
The courts have adopted two approaches to resolve church property disputes. The first is the “ecclesiastical” approach. Where a church has a hierarchical structure and the dispute is one of internal discipline and governance that is intertwined with religious doctrine, then the court must defer to the decision-making processes of the hierarchical church. See Par. Of the Advent v. Protestant Episcopal Diocese of Mass., 426 Mass. 268, 280 (1997). The second is the “neutral principles” approach. If the dispute does not relate to questions of religious doctrine, discipline or authority, then courts apply traditional judicial methods of interpretation to discern the parties’ intent, examining key documents and evaluating the parties’ behavior. Jones v. Wolf, 443 U.S.
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595, 602-603 (1979). The plaintiffs contend that they are entitled to summary judgment under either approach, but with an expressed preference that this Court decides the motion using the ecclesiastical approach. This Court concludes that the question of the right to use and possess NPC property is inextricably intertwined with the question of which individuals hold authority to act on behalf of the church. Applying an ecclesiastical approach, this Court further concludes that plaintiffs are entitled as a matter of law to summary judgment in their favor on Count I of the Complaint.
The instant case is remarkably similar to Episcopal Diocese of Massachusetts, v. Devine, 59 Mass.App.Ct. 722 (2003). Driven by disagreement over certain doctrinal matters, leaders of St. Paul’s Episcopal Parish in Brockton (St Paul’s) took steps to separate from the Diocese of the Protestant Episcopal Church in the United States of America (PECUSA). The Diocese bishop asserted control over the Parish, sought to replace its leaders, and then commenced an action seeking injunctive and declaratory relief when the displaced leaders refused to surrender the church keys. The Appeals Court turned first to the question of subject matter jurisdiction, noting that the First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine or internal organization. “Massachusetts courts traditionally have resolved the question of jurisdiction by examining the structure of the religious organization to determine whether it is hierarchical or congregational, or a combination of both.” Id. at 726. The Appeals Court reasoned that, if the religious organization is hierarchical in structure, courts presented with an internal church dispute generally are without authority to second guess the determination of the matter by the church’s highest ecclesiastical authority. Id. That the court must defer to authority does not mean the court is without jurisdiction, however. Quoting Jones v. Wolf, 443, U.S. at 602, the Appeals Court noted that the “State has an obvious and legitimate interest in the
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peaceful resolution of property disputes and in providing a civil forum where the ownership of church property can be determined conclusively.” Id. at 728. Thus, a request by ecclesiastical authorities for civil enforcement of their decision is quite properly within the court’s jurisdiction.
The Appeals Court in Devine then turned to whether the PECUSA was hierarchical in structure, and concluded that it was. It noted that PECUSA and its affiliated dioceses and parishes were governed by a national constitution and canons. The Bylaws of St Paul’s were subject to that constitution and acknowledged the authority of the PECUSA and the Diocese of which it was a part. The question of who had the right to use and possess the church property was “inextricably intertwined with the question of which individuals hold authority to act on behalf St. Paul’s (a question that essentially depends on the authority of the Diocese and its bishop over the mission or parish).” Id. at 728. Affirming the lower court’s decision to award declaratory and injunctive relief to the Diocese, the Appeals Court concluded that such relief was “necessary to enforce the ecclesiastical determination.” The same conclusion is compelled here.
The PCUSA is undisputedly a hierarchical church. Indeed, the Supreme Court has recognized it as such. See Jones, 443 U.S. at 597- 598. It has a national constitution that defines the powers of the four governing councils. All member congregations and governing councils agree to conduct worship in accordance with the Constitution. Those councils operate on a hierarchical basis: each higher council has the power to review and change the actions of the lower one. At the lowest tier is the session, elected by the congregation of the particular church. A congregation may not make important decisions – like hiring a minister or purchase a home for him or her – without the approval of the regional presbytery. As to NPC in particular, its Articles of Incorporation acknowledge the fact that it operates in accordance with the principles of the PCUSA.
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As to the particular decision at issue, it involves a decision by one faction of the church to break away and affiliate with another group. The Constitution sets forth a specific process for dealing with this event, empowering the Presbytery of Boston to determine the “true church” and thus to decide who is entitled to the church property. The defendants’ decision to form a new church is the result of their disagreement with PCUSA’s position on same sex marriage and LGBT ordination. The Presbytery’s determination is therefore inextricably intertwined with religious doctrine. To set aside that determination would entangle this Court in what is essentially a religious controversy, which is prohibited by the First Amendment. This Court nevertheless has the ability to enforce that determination, given the state’s interest in peaceful resolution of disputes even where the litigants are religious institutions.
Although this Court need not consider the alternative “neutral principles” approach, this Court is of the view that even under that approach, the plaintiffs are entitled to a judgment in their favor on Count I. When the Supreme Court first recognized the neutral principles approach as a means to adjudicate church disputes, it provided specific instructions to denominations that sought to ensure that “the faction loyal to the hierarchical church will retain the church property. “ Jones, 443 U.S. at 606. It instructed such denominations to “recite an express trust in favor of the denominational church” in the “constitution of the general church.” That is precisely what the PCUSA did. Pursuant to its Constitution’s Trust Clause, all property held by NPC is held in trust for the use and benefit of PCUSA. Other documents support the conclusion that NPC holds its property in trust for the PCUSA. Those documents include the Presbytery of Boston’s and NPC’s Article of Incorporation. That the deed to 75 Vernon Street does not itself contain similar language is irrelevant. See Devine, 59 Mass.App.Ct. At 732. Finally, the individual members of the NPC congregation have over the years acknowledged the
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fact that the NPC must get Presbytery approval before making any decisions with respect to property That understanding was expressed as recently as 2015 and 2016.
Defendants rely on an a 1982 legal memorandum that advised NPC that it retained its property regardless of the Trust Clause in the Constitution but recommended nonetheless that NPC change its Bylaws to reflect its understanding that NPC, not PCUSA, controlled church property. The recommendation was adopted and a provision in the Bylaws was added stating: “[u]nless subject to a specific trust expressed by the donor, property received and held…by this Corporation is held by it in trust for religious purposes and will be applied, subject to that trust, in accordance with the wishes of the membership. “ Article 14 of Bylaws, Ex. BB. This Court is not bound by the legal opinion of a third party, which on its face appears to be wrong in its analysis. Moreover the Bylaw acknowledges that the powers of the Board of Trustees, including the power to control property, are subject to the Constitution. Finally, even without that acknowledgement within the Bylaws, NPC’s Article of Incorporation requires it to operate in accordance with the principles and doctrines of the PCUSA. It thus would not have the authority to amend its Bylaws in a way which would conflict with those principles. See Primate and Bishops’ Synod of Russian Orthodox Church Outside Russia v. Russian Orthodox Church of the Holy Resurrection, Inc., 35 Mass.App.Ct. 194, 200 (1993). (Where bylaws conflict with articles of organization, the bylaws are subordinate).
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CONCLUSION AND ORDER
For these reasons and for other reasons articulated in the plaintiffs’ Memoranda of Law in support, their Motion for Partial Summary Judgment as to Count I of the Complaint is ALLOWED. This matter is scheduled for a Rule 16 Conference December 21, 2017 at 2:00 p.m.
________________________________
Janet L. Sanders
Justice of the Superior Court
Dated: November 16, 2017 read more

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Posted by Stephen Sandberg - December 7, 2017 at 12:03 am

Categories: News   Tags: , , , , , ,

Yarpah v. Bowden Hospitality Newton LLC, et al. (Lawyers Weekly No. 12-061-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1684CV02746-BLS2
____________________
ROLAND YARPAH, and all others similarly situated
v.
BOWDEN HOSPITALITY NEWTON LLC d/b/a Crowne Plaza Hotel, and INTERCONTINENTAL HOTELS GROUP RESOURCES, INC.
____________________
MEMORANDUM AND ORDER ON INTERNATIONAL HOTELS GROUP RESOURCES, INC.’S MOTION TO DISMISS and PLAINTIFF’S MOTION TO AMEND HIS COMPLAINT TO ADD NEW DEFENDANTS
Roland Yarpah worked for several years at the Crowne Plaza Hotel in Newton, Massachusetts. He claims that the Hotel violated the Massachusetts Tips Act (G.L. c. 149, § 152A) by levying an eight percent “administrative charge” for functions where food or alcohol are served, not telling customers that this charge is not a tip paid to servers, and nonetheless keeping monies collected for this charge instead of paying them to wait staff and service bartenders. Yarpah sued Bowden Hospitality Newton LLC, which owns and operates the Hotel. He has also sued Intercontinental Hotels Group Resources, Inc. (IHGR).
IHGR has moved to dismiss the claims against it with prejudice on the ground that the facts alleged do not plausibly suggest that IHGR charged, received, or had any control over the disputed charge. IHGR also showed that it has no contractual relationship with Bowden, and that Holiday Hospitality Franchising, LLC (“HHFL”) is the entity that gave Bowden license to do business as a Crowne Plaza Hotel.
Yarpah then moved to amend the complaint to delete IHGR as a defendant and instead sue HHFL and its parent Six Continent Hotels, Inc. (“SCH”); both of these entities assert that Yarpah has no standing to sue them. Yarpah also seeks to add as a defendant Ward Childs, who manages the hotel for Bowden.
The Court will allow the motion to dismiss the claims against IHGR with prejudice because Yarpah made clear at oral argument that he does not oppose that request. It will also permit Yarpah to add Childs as a defendant, without opposition.
The Court will deny the request to add HHFL and SCH as defendants, however. Neither of them had any control over or received any revenue from the
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administrative charges. As a result they owe no duty under the Tips Act, and Yarpah lacks standing to sue them. It would therefore be futile to amend the complaint to add them as defendants. See generally Johnston v. Box, 453 Mass. 569, 583 (2009) (“Courts are not required to grant motions to amend prior [pleadings] where ‘the proposed amendment … is futile.’ ” (quoting All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 272 (1993)); Thermo Electron Corp. v. Waste Mgmt. Holdings, Inc., 63 Mass. App. Ct. 194, 203 (2005) (affirming denial of motion for leave to assert counterclaim that would have been futile).
1. Legal Background. HHFL and SCH assert that Yarpah lacks standing to sue them. Whether a plaintiff has standing raises an “issue of subject matter jurisdiction.” Indeck Maine Energy, LLC v. Commissioner of Energy Resources, 454 Mass. 511, 516 (2009). A plaintiff has standing to sue a particular defendant if that defendant owed a legal duty to the plaintiff, breached that duty, and plaintiff suffered some injury as a result. See Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 22-23 (2007). “It is not enough that the plaintiffs be injured by some act or omission of the defendant; the defendant must additionally have violated some duty owed to the plaintiffs.” School Comm. of Hudson v. Board of Educ., 448 Mass. 565, 579 (2007), quoting Penal Inst. Comm’r for Suffolk County v. Commissioner of Corr., 382 Mass. 527, 532 (1981).
1.1. The Tips Act imposes a legal duty on any entity or person that requires customers to pay a tip for service performed by wait staff, service employees, or service bartenders,1 or that requires customers to pay a service charge in lieu of such a tip. Specifically, the entity that collects such a tip or service charge must pay it over to the wait staff and service employees or bartenders in proportion to the service they provided, and may not retain the tip or service charge or distribute it in any other manner. See G.L. c. 149, § 152A. An entity charging for service performed
1 “Wait staff” are defined as wait persons, bus persons, and counter staff who serve food or beverages or clear tables and have no managerial responsibilities. “Service employees” are employees who work in fields other than food or beverage service in which employees customarily receive tips or gratuities, and who have no managerial responsibilities. “Service bartenders” prepare drinks to be served by someone else, such as wait staff employees. See G.L. c. 149, § 152A(a).
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by such personnel may only impose an administrative fee in addition to or instead of a service charge if it informs the customer in writing that the fee does not represent a tip or service charge. Otherwise, the fee must be treated as a service charge and distributed to the wait staff, service employees, and service bartenders. Id. § 152A(d); see also Bednark v. Catania Hospitality Group, Inc., 78 Mass. App. Ct. 806 (2011).
Entities that neither collect nor retain any part of a tip or service charge have no duty to employees under the Tips Act. For example, if one company employs wait staff to provide food and beverage service at certain events, and a different entity assesses a service charge on the customers paying for those events, the employer has no duty under the Tips Act because it did not submit any invoice to the customers, collect any payment from the customers, retain the service charge, or fail to pay the service charge revenues to the wait staff and service employees. See Cooney v. Compass Grp. Foodservice, 69 Mass. App. Ct. 632, 640-641 (2007).
1.2. Challenging Standing. A motion by an existing defendant to dismiss an action under Mass. R. Civ. P. 12(b)(1) for lack of standing (or other purported lack of subject matter jurisdiction) may do so based solely on the facts alleged in the complaint or on additional evidence submitted by the defendant.
If such a motion is not supported by any evidence, it “presents a ‘facial attack’ based solely on the allegations of the complaint” and thus the court must assume that those allegations are true for the purpose of deciding whether it has subject matter jurisdiction to resolve the claim. Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 709 (2004), quoting Hiles v. Episcopal Diocese of Mass., 437 Mass. 505, 516 n.13 (2002).
But a defendant may instead submit “documents and other materials outside the pleadings,” including materials “that are not affidavits,” in an attempt to “contest the accuracy (rather than the sufficiency) of the jurisdictional facts pleaded by the plaintiff.” Callahan, supra, at 710-711. Where, as here, the defendant makes such a “factual challenge” to subject matter jurisdiction, the court must “address the merits of the jurisdictional claim by resolving the factual disputes between the plaintiff and the defendants.” Id. at 711. Under these circumstances the factual allegations in the complaint are not presumed to be true, id., and the evidence submitted regarding
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subject matter jurisdiction is “not viewed in the light must favorable to the non-moving party,” Wooten v. Crayton, 66 Mass. App. Ct. 187, 190 n.6 (2006).
In deciding whether it would be futile to let Yarpah assert new claims against HHFL and SCH, the Court must follow the standards that would apply—and therefore may consider the same materials that would be relevant—if HHFL and SCH were already named as defendants and had moved to dismiss the claims against them under Mass. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Cf. Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004) (pleading amendment is futile if it could not survive motion to dismiss).
2. Findings and Analysis. Based on the evidence summarized below, the Court finds that neither HHFL nor SCH assessed or collected the administrative charges imposed by the Hotel, received or is retaining any revenues generated by those charges, or controlled the imposition of those charges or the distribution of the revenues collected by the Hotel from those charges.
HHFL and SCH submitted sworn declarations of Randall S. Hammer, Ward Childs, and Laura Cranfield. HHFL and SCH also submitted: (i) certain pages from the License Agreement between Bowden and HHFL’s predecessor (Holiday Hospitality Franchising, Inc.), which allows Bowden to use trademarks, service marks, logos, and sign designs associated with the Crowne Plaza hotel brand, and (ii) excerpts from the Business Rewards manual issued by InterContinental Hotels Group (“IHG), which includes Crowne Plaza and a number of other hotel chains.
Yarpah’s only evidence is an excerpt from the Franchise Disclosure Document issued by InterContinental Hotels and Resorts, which Yarpah attached to his unverified, proposed amended complaint. The Court finds, based on Mr. Hammer’s undisputed declarations, that the document submitted and relied upon by Yarpah is irrelevant because it was issued several years after Bowden executed a Crowne Plaza license agreement and, more importantly, is for the InterContinental brand of hotels and has nothing to do with the Crowne Plaza brand. Although Crowne Plaza and the various Holiday Inn chains are all part of the InterContinental Hotels Group, they are separate and distinct from the InterContinental Hotels & Resorts chain.
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The Court credits all of the testimony in the declarations submitted by HHFL and SCH. Based on that evidence it finds as follows. HHFL and SCH do not own, operate, or control the Hotel where Yarpah worked. They did not assess or collect any of the administrative charges at issue in this case. They have never told Bowden what or how to bill for its banquet and event services, and they have no right to do so. They have no control over whether and how Bowden assesses an administrative charge for its banquets and functions. Neither HHFL nor SCH has received, and thus has not retained, any part of the revenue generated Bowden’s administrative charge. Nor can they exercise any control over what Bowden does with those revenues.
Based on these findings, and the legal standards discussed above, the Court concludes that neither HHFL nor SCH has ever owed Yarpah any duty under the Massachusetts Tips Act. Yarpah therefore lacks standing to assert his proposed claims against these two corporate entities.
Yarpah’s assertion that HHFL can be held vicariously liable for any breach of the Tips Act because it is Bowden’s franchisor is without merit. “[A] franchisor is vicariously liable for the conduct of its franchisee only where the franchisor controls or has a right to control the specific policy or practice resulting in harm to the plaintiff.” Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607. 617 (2013). The Court finds, based on the undisputed evidence before it, that neither HHFL nor SCH controls or has any right to control Bowden’s assessment, collection, and disposition of the disputed administrative charge.
The mere fact that HHFL receives payments under its license agreement with Bowden does not make HHFL liable for Bowden’s alleged violation of the Tips Act. Liability under the Tips Act only attaches to entities that collect tips or service charges. Nothing in that statute imposes liability on franchisors or licensors that receive royalties paid from the general net revenue of a hotel or other business that collects a service charge. See G.L. c. 149, § 152A.2 Yarpah’s argument to the contrary is incorrect. Under Yarpah’s reasoning, shareholders who receive dividends payable from the gross revenues of a business that collects and keeps a service charge, rather
2 The Court respectfully disagrees with Carpaneda v. Domino’s Pizza, Inc., 991 F.Supp.2d 270, 275 (D.Mass. 2014) (Young, J.), on this point.
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than distributing the revenue to its service employees, would be personally liable for the Tips Act violation. This makes no sense and cannot be squared with the plain language of the statute. In any case, the Court finds that neither HHFL nor SCH is entitled to or has received a percentage of Bowden’s overall net revenue. The Court credits the evidence detailing the payments HHFL is entitled to receive from Bowden, and demonstrating that none of those payments includes any share of Bowden’s administrative charge or other revenue from banquet, event, or function services.
Finally, Yarpah had no right to conduct discovery before the Court decided whether he has standing to assert the proposed claims against HHFL and SCH. See Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 196 n.10 (2005) (court has discretion to bar discovery pending resolution of a motion to dismiss). “[D]iscovery cannot be used as a vehicle for discovering a right of action.” E.A. Miller, Inc. v. South Shore Bank, 405 Mass. 95, 100 (1989), quoting MacKnight v. Leonard Morse Hosp., 828 F.2d 48, 51 (1st Cir. 1987), and 4 Moore’s Federal Practice ¶ 26.56[1], at 26-95 n.3 (1987). “Having failed to make a minimal, threshold showing that there is a factual basis” for his claims, Yarpah is “not entitled to discovery” before the Court determines whether Yarpah has standing to sue these parties. See Id. “Parties may not ‘fish’ for evidence on which to base their complaint “in hopes of somehow finding something helpful to [their] case in the course of the discovery procedure.” Id. at 102, quoting Charbonnier v. Amico, 367 Mass. 146, 153 (1975).
ORDER
The motion by Intercontinental Hotels Group Resources, Inc., to dismiss all claims against it with prejudice is ALLOWED without opposition. Plaintiff’s responsive motion to amend his complaint is ALLOWED IN PART to the extent that Plaintiff seeks to add Ward Childs as a defendant and DENIED IN PART to the extent that Plaintiff seeks to add Holiday Hospitality Franchising, LLC, and Six Continental Hotels, Inc., as Defendants. Plaintiff shall file a revised First Amended Complaint that is consistent with this ruling within the next 21 days.
18 May 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court
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Posted by Stephen Sandberg - May 31, 2017 at 11:26 pm

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Dorrian v. LVNV Funding, LLC; Newton v. LVNV Funding, LLC (Lawyers Weekly No. 12-034-17)

COMMONWEALTH OF MASSACHUSETTS

 

SUFFOLK, ss.                                                                       SUPERIOR COURT

                                                                                                CIVIL ACTION

                                                                                                No. 14-2684 BLS2

 

TARA DORRIAN, individually and on behalf of

all other persons similarly situated,

Plaintiff

 

  1. vs.

 

LVNV FUNDING, LLC,

Defendant

 

                                                                        CONSOLIDATED WITH

                                                             No. 14-4072 BLS 2 read more

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Posted by Stephen Sandberg - April 3, 2017 at 11:40 pm

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254 Newbury, LLC v. Wabora Newton LLC, et al. (Lawyers Weekly No. 12-026-17)

1
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CA No. 16-1855-BLS1
254 NEWBURY, LLC
vs.
WABORA NEWTON LLC and JAE CHOI1
MEMORANDUM OF DECISION AND ORDER FOLLOWING JURY WAIVED TRIAL
INTRODUCTION
This case arises out of a dispute concerning a commercial lease for a restaurant. The plaintiff, 254 Newbury, LLC, is the landlord (Landlord) and the defendant, Wabora Newton LLC (Waboro) is the tenant. The Landlord filed this action on June 13, 2016 and an amended complaint on December 16, 2017 (the Complaint). The Complaint is pled in four counts: Count I seeks injunctive relief, but does not allege a separate cause of action; Count Two alleges a Breach of Contract; Count Three asserts a claim for nuisance; and Count IV requests an order of eviction, but does not assert a separate cause of action. Wabora has filed a two count counterclaim against the Landlord: Count I alleges a Breach of Contract against the Landlord and Count II asserts a claim under M.G.L. c. 93A, § 11.
The case was tried to the court without a jury on February 15 and 16, 2017. Six witnesses testified and 92 exhibits were admitted in evidence.
1 Jae Choi was dismissed as a defendant at the plaintiff’s request just prior to trial and did not participate.
2
FACTS
In consideration of the testimony of the witnesses and the exhibits, and the reasonable inference drawn from this evidence, the court finds the following facts.
The Landlord is a limited liability company which is a part of the Copley Group, a real estate investment and management company owned by Norman Levenson and members of his family. The Copley Group owns and/or manages over 1500 residential units and 300,000 square feet of commercial space in the Boston area, including other buildings on the same block as the property which is the subject of this case. Levenson formed the Landlord to acquire the property located at 254 Newbury Street in Boston (254 Newbury) in 2012. The property consists of a basement (or in Back Bay speak “Garden”) unit, which is 1300 interior square feet with a patio in front, and four above ground floors, the first of which has three large windows in a bay area typical of the town houses on Newbury Street (the Commercial Space). There are stairs to the right of the patio which lead to the front entry way to 254 Newbury. The front door opens into a foyer with direct access to the Commercial Space, stairs to the floors above, and a door that leads to stairs down to a rear exit at the restaurant level. 254 Newbury lies in the Boston geographic district subject to oversight by the Back Bay Architectural Commission (BBAC).
When the Landlord acquired 254 Newbury, the four above ground floors were being used as a bed and breakfast (the B&B). The record does not reflect what was in the basement unit. The B&B vacated in August, 2014. Sometime thereafter, the Landlord created six residential apartment units in the upper three floors and rented them. The commercial space has been vacant since the B&B moved out.
Effective October 1, 2012, the Landlord leased the basement to J’s Tomodachi, Inc. (J’s) pursuant to a written lease (the Lease). The Lease was guaranteed by J’s principal, Jae Choi. It
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was for a term of ten years, with an option for another five. The Lease provided that the only permitted use for the leased space was “a sushi restaurant, and for no other purposes.” The restaurant had a kitchen in the back and seating in the front and on the patio, beside the steps down to the restaurant entrance. In the rear, left corner of the kitchen was a fryolator with a ventless hood above it. While J’s was operating a sushi restaurant in the basement unit no noticeable restaurant smell existed in the first floor foyer or the Commercial Space, although there was some odor in the stairs leading to the rear exit.
Minsoo Kim is one of the principals of Wabora; he owns 40% of the firm. He has been in the Asian Fusion restaurant business since 2007; prior to that he was a baseball player and then a scout for the Arizona Diamondbacks. In 2014, Kim was looking for a location to open a sushi restaurant; a mutual friend put him in contact with Choi. Effective April, 2015, Wabora purchased the restaurant located in the basement of 254 Newbury from J’s, including its equipment and furniture, by means of an asset purchase agreement. Part of that transaction required the Landlord’s consent to J’s assigning its interests in the Lease to Wabora. That assignment and consent was executed by the Landlord on April 27, 2015.2
Of relevance to this case, the Lease included the following provisions. The initial rent was $ 9,533.34, increasing at the rate of 3% per annum in years 2 through 10. It was a standard triple net commercial lease in which the tenant also paid its share of taxes and maintenance. A fryolator could be used, but only if the necessary “government approvals” were obtained and the grease traps cleaned regularly. (There is no evidence in this case of a lack of approvals or improper maintenance.) The lessee was responsible for furnishing outdoor tables and umbrellas.
2 Wabora also acquired the liquor license for the restaurant. The Copley Group (or a person or entity associated with it) lent Wabora the funds to purchase the license; Wabora paying interest on the sum lent. However, if Wabora vacates the 254 Newbury, the Landlord (or an affiliate) retains the liquor license.
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“All Outdoor Equipment must be approved in advance by Lessor in writing.” All improvements or alteration to the premises also had to be pre-approved by the Landlord. If the Landlord pays any expenses in connection with any lessee default, the lessee is liable for such expenses, plus interest at 18%.
The Lease provisions that the Landlord focuses upon in this case are found in Section 7 and Section 21. Section 7 is entitled “Compliance with Laws” and states, as relevant to this case:
Lessee acknowledges that no trade or occupation shall be conducted in the Leased Premises or use made thereof which shall be unlawful, improper, noisy or offensive, or be contrary to any law or any municipal by law or ordinance in force in the municipality in which the Building is located.
Section 21 states, as relevant to this case:
Lessee further covenants and agrees during the Term and such further time as Lessee holds any part of the leased premises:
. . .
d. that Lessee shall not cause any disturbance to any tenant or other occupant of the Property, and shall not otherwise adversely impact any tenant or occupant at the Property.
Kim only inspected J’s kitchen a few times before Wabora purchased the restaurant. He did notice, on at least one occasion, that when J’s was in operation, a steel tray had been placed over the fryolator and J’s was using a small, home-style fryolator to prepare the fried food it was serving. There was no evidence offered concerning whether J’s used the fryolator that it had installed under the ventless hood at all, and, if so, to what extent.
After the lease was signed, Wabora made substantial expenditures to upgrade the areas of the restaurant which customers would enter, but not the kitchen. While Kim gave consideration to kitchen improvements, including an external ventilation system which would extend over the cooking area (the ventless hood was only over the fryolator) and allow him to expand the menu beyond the items that J’s served, he concluded that this would be too costly. A principal reason
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for this was that kitchen changes would require approval from a number of Boston health and building departments. Also, the external vent would require the installation of a duct running on the outside of the building to its roof, and this would require BBAC approval. Since Wabora’s rent obligation began upon the assignment of the lease, Wabora could not afford the time necessary to make alterations in the kitchen and left it as it had been operated by J’s.
While Wabora was upgrading the interior of the restaurant, the Landlord had some masonry done on the retaining wall outside the restaurant, next to the stairs leading down to the entrance. The mason pointed out to Kim that the brick work in an area immediately in front of the concrete apron that extends from the top of the stairs was in poor condition. He recommended replacing it with concrete. Kim spoke to the Landlord’s property manager responsible for this building, Tami Hunter, about the repairs and asked if the Landlord would pay for it. She reported that it would not, and Kim had the mason do the concrete work at Wabora’s expense.
Wabora opened for business on June 24, 2015. It placed a large, tan umbrella on the patio to shade part of the dining area from the sun. The umbrella was among the equipment left in hte restaurant by J’s. No evidence was offered concerning whether J’s had also used the umbrella on the patio, but presumably it had.
In July or August, 2015, the Copley Group retained District Real Estate Advisors (District) as the exclusive broker to rent the first floor Commercial Space. Another broker had the engagement before District, but no evidence was offered concerning its efforts to lease the space during the previous year that it had been vacant. Two District brokers who attempted to lease the space testified: Timothy Bulman and Gregory Feroli. Each testified concerning odors emanating from Wabora’s. Bulman testified that there was a strong “cook fry” smell in the foyer
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and in the Commercial Space itself—the kind that might stick to your clothes. The smell grew stronger in the stairwell in back of the foyer that led to the rear exit. Feroli testified that the smell was that of fried food, like “an Asian restaurant.” The two brokers testified to four instances in which prospective tenants did or said something suggesting that the smell dissuaded them from renting the Commercial Space. In November, 2015, Feroli showed the space to representative of a company called M-Jemi [phoenetic]. On entering, the representative scrunched her nose and said that they were selling $ 600 shoes; this won’t work for us. In January, 2016, Bulman showed the space to Crafted Boutique, a retail business selling antique appearing apparel. There were discussions about a lease, but Crafted Boutique expressed reservations about the smell. In the Spring of 2016, Feroli showed the space to space to two other high end clothing retailers Shop HCV and Roamers & Seekers. Each of these prospective tenants also did or said something suggesting that they were put off by the smell. No evidence was offered that the smell was the only reason the latter three businesses did not sign a lease for the Commercial Space. In July, 2016, Bulman sent an email to the Landlord explaining that 254 Newbury’s physical location on the block caused some problems and that the Landlord was asking $ 95 a square foot, plus another $ 20 “nets” and “real interest is coming in at $ 6500 to $ 7500, ALL IN.” The Commercial Space was leased from November 2015, through the first week in January 2016, to a so-called pop-up tenant that wanted it on short notice for the holiday season for $ 7500 a month.
It is difficult to find the extent of an odor based on oral testimony of sensory perception, but the court finds that there was a very noticeable Asian fried cooking smell in the foyer and the Commercial space and this would have certainly detracted from the desirability of the space for
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use as a store selling high end apparel. The court will take judicial notice that such a smell may be retained on clothing that is exposed to it for a lengthy time.
The Landlord first notified Wabora of its concerns over the odor in an email dated December 3, 2015 from Hunt to Kim. Hunt writes that she “just heard from the broker that when they are showing the space above your restaurant there is a very strong smell coming from the restaurant. . . . This is reported recently so I need you to determine what is different so this can be corrected asap.”3 Hunt recommended a HVAC engineer to Kim. Kim reached out to him, but the engineer did not respond.
In January, Hunt unilaterally brought in a firm called PFG Advisors, that specialized in air filtration systems for restaurants, to provide advice. At its recommendation, the Landlord purchased two ion generators and installed one in the HVAC system for the restaurant and one in the HVAC system for the Commercial Space. The Landlord charged Wabora for the cost of these systems. Wabora retained an attorney who wrote to Hunt on behalf of Wabora that he did not believe that it was Wabora’s obligation to remediate a smell that resulted from the operation of a Sushi restaurant, which was the sole permitted use under the Lease, but Wabora would agree to pay $ 4,000 toward the cost of the ion generators. The Landlord rejected this proposal. It charged Waboro $ 8178.75 for the generators. Whether the ion generators would have eliminated the odors is unknown. After they had been in operation for 3 or 4 weeks, and were still being adjusted, they had to be turned off because they severely irritated the eyes of the restaurant employees, as well as causing a different unpleasant odor.
3 Hunt testified at trial that the smell was consistent beginning in July when the restaurant first opened. The court does not find that testimony credible. Either the smell was not there, or it did not seem significant, until a potential tenant for the Commercial Space first complained about it to the broker, who reported the complaint to Hunt.
8
In April, 2016, a meeting was convened in the Commercial Space. It was attended by Kim, Chris Woo (another principal of Wabora), Hunt, and attorneys for Wabora and the Landlord. All parties acknowledged an odor in the Commercial Space, although not surprisingly they differed on its level and whether it was pungent or simply the smell of an Asian restaurant. At or shortly after the meeting, Wabora agreed to retain two environmental consulting firms to study the space and propose responses: Gordon Air Quality Consultants, Inc. and Boston Environmental Engineering Associates, Inc. Each inspected the premises and prepared reports in April. They generally reported “low level” odors in the Commercial Space and made a series of recommendations including: repair work to fill holes and seal ceiling tiles in the restaurant, repair a large hole in the bathroom of the Commercial Space and other holes in the walls of that space and a mechanical closet, and to balance the separate HVAC systems in each unit. The engineers reported that there was a positive air flow balance in the restaurant and a negative balance in the Commercial Space, and this was likely causing air to pass from the restaurant to the space above. One engineer also recommended a door at the base of the back stairs to act as a barrier, as there is a natural draft up the stairs. The engineers also indicated that while ventless hoods are relatively effective, they do leave some odors in the air, and the only way to be certain of eliminating the odors would be an exterior vent that would run outside the building to the roof. Wabora’s lawyer sent the reports to the Landlord’s lawyer and represented that Wabora would undertake to perform the recommended work within the restaurant.
In April, the Landlord also began charging its attorney’s fees to Wabora.
In May, 2016, Wabora performed all of the work that it committed to do within the restaurant, other than balancing the air flow. This task could not be done until the Landlord had balanced the air flow in the Commercial Space. The air flow in the Commercial Space was not
9
adjusted until some weeks or months later, the evidence was inadequate to determine just when the Landlord balanced it. Wabora, thereafter, did the related HVAC work in the restaurant. Wabora spent approximately $ 10,000 on the consultant’s reports and follow-up work.
On May 24, 2016, the Landlord’s attorney sent Wabora’s attorney an email demanding that the umbrella be removed from the patio, asserting that the Landlord had not approved it. This was the same umbrella that was among the equipment that Wabora purchased from J’s, had been up all of the previous summer after Wabora opened for business in June 2015, and for several weeks in 2016. This demand was precipitated by a comment made by a prospective tenant (reported to Hunt by the broker) that the umbrella obscured some of the view of the Commercial Space windows from the street. The demand was for immediate removal of the umbrella, although there was no tenant in the space and even if a prospective tenant signed a lease, it would be some time before the space could be occupied.
On June 13, 2016, the Landlord file suit against Wabora and sought preliminary injunctive relief, including among other things that Wabora be ordered to seek approval from the BBAC for an external vent and the umbrella be removed from the patio. Wabora removed the umbrella before the hearing, and the court denied the preliminary injunction in an order issued on July 14, 2016. In September, 2016, Wabora did have an architect prepare drawings for an external vent and met with a lawyer recommended by the Landlord as someone who could assist Wabora in trying to obtain a building permit for it, but after meeting with the lawyer, Wabora chose not to go forward with the plans.
On June 16, 2016, Wabora’s lawyer sent the Landlord’s lawyer a letter with photos of three different types of umbrellas that he represented were “consistent in both the size and the styles with other patios located on Newbury Street,” and asked that the Landlord approve one.
10
The Landlord did not respond to this request. After the large umbrella was removed, Wabora had no umbrella on its patio for the balance of the summer season.
On August 9, 2016, the Landlord’s lawyer sent Wabora’s lawyer a notice of default based upon Wabora having painted the cement area of the patio “a vibrant red color” without the Landlord’s prior approval. Wabora had painted the cement in response to a suggestion by a Boston health inspector that the unpainted cement was dusty and could result in a code violation. Kim had chosen that color because he thought that it matched the brick. Wabora responded to the notice of default by offering to repaint the cement any color that the Landlord chose. The Landlord did not respond to the request to select a color, and Wabora repainted the area a whitish color that was intended to replicate the prior color of the cement.
On August 19, 2016, the Landlord’s lawyer sent another notice of default based upon reports by Boston Inspectional Services concerning code violations in the restaurant dated July 29, 2016 (which resulted in a temporary suspension of license) and December 10, 2015 (which did not). The July report noted such violations as a food handler using bare hands, too low a water temperature in the dish washer, no annual report re chemical composition of the sushi rice, and no procedure for notification of employees who are diagnosed with reportable illnesses, among other things. The temporary suspension was lifted well before the notice of default was sent. Neither report said anything regarding odors.
On August 30, 2016, the Landlord sent Wabora a notice to quit for failure to timely pay the August rent. The notice also claimed default based on painting the cement red and the inspectional services reports. It claimed to accelerate all of the base rent for the ten year lease, such that it was now immediately due. The August rent was paid before the period to cure passed.
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On September 12, 2016, the Landlord sent another notice to quit. It again asserted a default based on painting the cement red and that all remaining rent for the ten year lease was now due. On October 16, 2016, the Landlord filed a summary process action seeking possession of the premises in the Boston Municipal Court. That action was transferred to the Superior Court and consolidated with this case.
No evidence was offered at trial that the fryolator was not properly maintained or that the grease was not changed and removed at appropriate intervals. No evidence was offered that Wabora offered any menu items not typically offered by “Sushi Restaurants.” Although there are six residential units on the second, third and fourth floors of 254 Newbury, and these residents enter the building through the foyer, no evidence was offered that any tenant complained about the odor.
RULINGS OF LAW
PLAINTIFF’S CLAIMS
Breach of Contract
The Landlord asserts that Wabora breached its contract with it, i.e., the Lease, as a consequence of the cooking odors coming from the fryolator, painting the cement, using an umbrella on the patio, and, perhaps, receiving notice of code violations from Boston Inspectional Services.4 Clearly, the Landlord’s primary basis for claiming a breach of the Lease is the Asian fried cooking odor that was emanating from the restaurant and could be smelled in the Commercial Space.
First, the court notes that the restaurant was leased to Wabora for use as “a sushi restaurant, and for no other purposes.” While Kim testified that some Korean style food was
4 It was not clear whether the Landlord was still pressing this issue as a grounds for Lease default at trial.
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served, he also testified that it was the practice of all Sushi restaurants to serve this type of food and J’s did as well.5 The Landlord offered no evidence that Wabora served any items not generally served by all Sushi restaurants or engaged in any cooking or other activities not typically engaged in by Sushi restaurants. In particular, all Sushi restaurants serve dishes that include fried food that must be prepared in a fryolator. The court finds that the real estate brokers testified that it was the smell of Asian fried food that was noticeable in the Commercial Space. Wabora prepared this fried food in a fryolator that was in place when the restaurant was purchase from J’s and the Landlord assented to the assignment of J’s lease to Wabora. Similarly, the ventless hood was installed in J’s and therefore effectively approved by the Landlord as the means of addressing the cooking smells that would result from the use of the fryolator.
Additionally, the Lease expressly permits the use of a fryolator, as long as all necessary permits are obtained and it is regularly maintained. The Landlord offered no evidence that Wabora lacked any necessary permits, or that the fryolator was misused or improperly maintained.
The Landlord claims, in particular, that the use of the fryolator and the resulting odor breached Sections 7 and 21 of the Lease. An examination of those sections demonstrate that Wabora did not breach either of them.
Section 7 is entitled “Compliance with Laws” and states, as relevant to this case:
“Lessee acknowledges that no trade or occupation shall be conducted in the Leased Premises or use made thereof which shall be unlawful, improper, noisy or offensive, or be contrary to any law or any municipal by law or ordinance in force in the municipality in which the Building is located.” Clearly, Wabora’s use of the premises as a sushi restaurant is not only not unlawful, it
5 Moreover, the brokers’testimony was that their concern was the fried cooking smell, not the smell of any Korean style food served by Wabora.
13
is the only use that Wabora is permitted to make of the leased space. The fact that an Asian cooking smell is produced in connection with this use does make the use “offensive.” The court finds that the smell is to be expected. The premises were leased to Wabora with a commercial fryolator accompanied by a ventless hood, and the building was old and lacked a central HVAC system. It even lacked a door in the common area at the base of the back stairs that might have prevented the back stairs from acting as a flew causing odors to travel up to the Commercial Space. The fact that frying smells might have been less noticeable when J’s was in operation, perhaps because J’s apparently used only a small, home-style unit, does not make Wabora’s use of the existing equipment installed in the restaurant when it assumed the Lease an “offensive” use. Clearly, Wabora was entitled to assume that use of a fryolator with a ventless hood had been approved by the Landlord, and there was no evidence that the smell was the result of Wabora offering any menu items not typically found in Sushi restaurant or that it was improperly using the fryolator or the vent.
Turning to Section 21, it states, as relevant to this case: “Lessee further covenants and agrees during the Term and such further time as Lessee holds any part of the leased premises: . . . d. that Lessee shall not cause any disturbance to any tenant or other occupant of the Property, and shall not otherwise adversely impact any tenant or occupant at the Property.” The simple answer to the Landlord’s contention that Wabora violated this Lease term is that no other “tenant” or “occupant” complained about the odor, and there is no evidence that it disturbed any tenant or occupant. The brokers who were attempting to Lease the “Commercial Space” reported that certain prospective tenants were put off by the odor, but there was no evidence that any of the six residential tenants complained.
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The Landlord’s contention that (i) putting up the umbrella, (ii) painting the cement, or (iii) Wabora’s receiving a notice of a code violation, quickly remedied, from Boston Inspectional Services breached the Lease can be quickly addressed. The court finds that the umbrella had been up for several months (including the summer of 2015) before the Landlord asserted that it was a Lease violation because it had not been pre-approved. The court finds that the open and obvious use of an umbrella for months precludes, on estoppel grounds, an assertion that its use was a Lease violation.6 In any event, it was removed within weeks of the Landlord’s complaint. While Wabora should have requested approval from the Landlord before painting the cement, after notice that the Landlord objected to the color, Wabora offered to paint it any color that the Landlord chose.7 When the Landlord refused to select a color, Wabora repainted it a color designed to match the previous color of the cement. The violation was therefore promptly cured. The court finds that code violations of the kind noted in the inspection services reports entered in evidence, again promptly cured, do not constitute a breach of the Lease.
In the end, the Landlord failed to carry its burden of proving that Wabora used the premises for anything other than its sole permitted use: operating a sushi restaurant. The Landlord failed to prove that Wabora did not properly operate the fryolator or ventless hood, which were in the kitchen when the Landlord assigned the Lease to it. The fact that the restaurant produced an odor in the Commercial Space that made it more difficult to rent does not constitute a breach of the Lease.
6 While there is insufficient evidence for the court to find that J’s used the same umbrella, the court does credit Kim’s testimony that it was among the items left at the Restaurant by J’s.
7 During trial, the Landlord seemed to suggest that it was violation of the Lease to cement over the small area in front of the stairs where the bricks were in very poor condition. The default notices, however, referenced only Wabora’s painting of that area, not replacing the broken bricks with cement. The court also finds that property manager Hunt was informed of this proposed masonry work before the restaurant opened, when Kim asked her if the Landlord would pay for it and she responded that it would not.
15
There was evidence offered at trial that either an external vent, which would require BBAC approval, or a more sophisticated and expensive ventless system, would eliminate the migration of the odor into the Commercial Space. If the Landlord believes that these improvements would increase the value of the Commercial Space, it can certainly install them, but that is not Wabora’s contractual obligation under the Lease.8
Nuisance
In support of its position, the Landlord has cited Novogroder Cos. v. Massaro, 997 N.E.2d 1173 (Ind. App. 2013). In that case, the appellate court actually affirmed the trial court’s denial of a landlord’s motion for a preliminary injunction enjoining its commercial tenant from cooking foods in the leased premises. It held that the trial court had properly found that the Landlord was not likely to succeed on the merits of its claim of nuisance (which is statutory in Indiana). In connection with that holding, it commented that the testimony at the preliminary injunction hearing “revealed” that “the actual dispute, something more properly sounding in contract than in nuisance [was]: who should bear the primary responsibility for installing ventilation.” Id. at 1178. The Indiana appellate court’s comments are equally applicable to this case.
The Landlord has not cited any Massachusetts case in which a Landlord brought a claim of nuisance against a tenant, probably because the question of whether the tenant was improperly using leased space was addressed under the lease and landlord/tenant law. Nonetheless, the court will assume that the law of nuisance can be applied to this dispute.
8 The court commented at the end of the trial that the litigation expense probably exceeded the cost of an external hood or high end internal ventilation system.
16
In Rattigan v. Wile, 445 Mass. 850 (2006), the Supreme Judicial Court considered how the law of nuisance applies in an urban setting.
Our cases impose a heavy burden on the plaintiffs in such an action. The law of nuisance “does not concern itself with trifles, or seek to remedy all the petty annoyances of everyday life in a civilized community.” W.L. Prosser & W.P. Keeton, Torts § 88, at 626 (5th ed.1984). See, e.g., Wade v. Miller, 188 Mass. 6, 7, 73 N.E. 849 (1905) (“Although the odor arising from the hen houses and yard, which at times was accompanied by the characteristic cry made by their occupants, may have been unpleasant,” there was no actionable nuisance).
Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others…. Liability for damages is imposed [only] in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.” Restatement (Second) of Torts § 822 comment g, at 112 (1979). For this action to succeed, the plaintiffs must have shown that the defendant caused “a substantial and unreasonable interference with the use and enjoyment of the property” of the plaintiff. Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288, 630 N.E.2d 248 (1994), quoting Asiala v. Fitchburg, 24 Mass.App.Ct. 13, 17, 505 N.E.2d 575 (1987). See Hennessy v. Boston, 265 Mass. 559, 561, 164 N.E. 470 (1929) (conduct actionable in nuisance if it would “deprive the plaintiff of the exclusive right to enjoy the use of [the] premises free from material disturbance and annoyance”). The injury or annoyance must have substantially interfered “with the ordinary comfort … of human existence,” or have been substantially detrimental to the “reasonable use[] or value of the property.” Metropoulos v. MacPherson, 241 Mass. 491, 502, 135 N.E. 693 (1922) (citations omitted).
The general rule is that a trier of fact may find an intentional invasion of another’s interest in the use and enjoyment of land to be unreasonable if the “gravity of the harm” caused thereby “outweighs the utility” of the actor’s conduct.14 Restatement (Second) of Torts, supra at § 826(a). See 6A American Law of Property § 28.26 (A.J. Casner ed.1952). Where an actor’s “sole purpose” “is to annoy and harm his neighbor,” the law recognizes no utility. Restatement (Second) of Torts, supra at § 829(a) & comment c. See 6A American Law of Property, supra at § 28.28. Such an action is unreasonable. Every landowner “is bound to use his own property in such a manner as not to injure the property of another, or the reasonable and proper enjoyment of it.” Wesson v. Washburn Iron Co., 95 Mass. 95, 104 (1866).
A trier of fact may also find a landowner’s conduct to be unreasonable if the harm to a neighbor is substantial and “it would be practicable for the actor to avoid the harm in whole or part without undue hardship.” Restatement (Second) of Torts, supra at § 830.
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“The question is not whether the activity itself is an improper, unsuitable or illegal thing to do in the place where it is being carried on, but whether the actor is carrying it on in a careful manner or at a proper time. The problem is whether the actor could effectively and profitably achieve his main objective in such a way that the harm to others would be substantially reduced or eliminated.” Id. at § 830 comment c. “The one whose conduct causes the invasion may be able to reduce or eliminate the harm without undue hardship, and if so, he is the one to do the avoiding.” Id. at § 827 comment i.
In this case, the court finds that Wabora cannot achieve its sole objective, operating a sushi restaurant, which is also the only permitted use of the leased space, without a fryolator. The odors that naturally seem to infiltrate the Commercial Space in this old building are unavoidable, at least when the ventilation system used is that which was in place, and therefore approved by the Landlord, when Wabora assumed the Lease. In consequence, this is not a case in which the “harm . . . to [the Landlord] is greater than [it] ought to be required to bear under the circumstances.” Id. The law of nuisance ought not be employed to shift to Wabora the cost of improving the value 254 Newbury, all of which is, of course, owned by the Landlord, when there is no evidence that Wabora is not appropriately using the leased space for its intended purpose.
THE COUNTERCLAIMS
Breach of Contract
The Landlord appears to have charged Wabora the cost of installing the ion generators and the attorney’s fees that it has incurred since April, 2016 in dealing with the issues which are the subject of this litigation. The charges were apparently assessed under Section 23 of the Lease which provides that “[i]f the Lessor makes any expenditures or incurs and obligations for the payment of money in connection with any default of Lessee under the terms of this Lease, including, but not limited to, reasonable attorney’s fees (except for unsuccessful suits against the Lessee) . . . such sums paid . . .shall be paid to the Lessor by the Lessee as Additional Rent [with
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interest at 18%].” As the court has found no default on the part of Wabora, and the Landlord was unsuccessful in this litigation, the Landlord breached the lease when it charged Wabora for expenses incurred in attempting to remediate the odor, including attorneys’ fees. Those charges must be reversed. If Wabora has paid any of them, it is entitled to equivalent credits for future rent.
Violation of Chapter 93A
The court does not find that the Landlord’s assertion that cooking odors emanating from Wabora caused a default under the lease constitutes an unfair act or practice under G.L. c. 93A. While the court has found that the Landlord was wrong in its application of the Lease to the facts, the court does not find that its interpretation of the law amounted to a “disregard of known contractual arrangements” so as to secure benefits to which the Landlord knew it was not entitled. See Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 225-226 (1992). The court finds that the Landlord had a good faith, albeit mistaken, belief that it was Wabora’s responsibility to ameliorate the smell, even though he was using the kitchen in its intended manner to operate a sushi restaurant.
The Landlord’s attempts to declare defaults based on a patio umbrella that had been used since the summer of 2015 (if not earlier), painting a cement landing and steps at the suggestion of a Boston inspector, and code violations that mostly dealt with food storage and preparation issues and were repaired before a notice of default was sent, is more problematic. Indeed, with respect to the umbrella, Wabora was prepared to replace it at its cost, but the Landlord would not even respond to its letter enclosing photos of proposed new umbrellas, with the result that Wabora had no umbrella on its dining patio during the summer of 2016. The court has no
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difficulty finding that while the Landlord may have had sound reasons for wanting a smaller umbrella or a different color paint, it used these events as pretext to force Wabora to quit the premises or pay for a new ventilation system. Indeed, its notices to quit purported to accelerate the rent on the remaining seven years of the lease, an amount approaching $ 1 million. Nonetheless, Waboro continued its operations during the course of this dispute, while the litigation proceeded to a prompt trial. Under these circumstances, the court find’s the Landlord’s conduct to be aggressive and annoying, but not to rise to the level of a Chapter 93A violation. See, Id.
ORDER
For the foregoing reasons, the court orders that Final Judgment enter as follows:
1. All counts of the Complaint are dismissed; judgment for the defendant Wabora.
2. Judgment for Wabora on Count I of the Counterclaim. The Landlord shall reverse all charges for attorneys fees and related to the ion generators assessed to Wabora. If Wabora has paid any of these charges, it shall receive credits for such amounts against future rent.
3. Judgment for the Landlord, as defendant-in-counterclaim, on Count II of the Counterclaim, which is dismissed.
4. Costs to defendant Wabora.
_____________________
Mitchell H. Kaplan
Justice of the Superior Court
Dated: March 2, 2017 read more

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Posted by Stephen Sandberg - April 1, 2017 at 12:09 am

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Police: Man Pulled Knife in Argument on West Newton Street, Had Drugs on Him

[photo]

The following information was supplied by the Boston Police Department. Charges listed do not indicate convictions.  An argument lead to an altercation involving a knife on Monday.Boston Police responded to a report of a person w
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Posted by Stephen Sandberg - August 8, 2013 at 7:19 pm

Categories: Arrests   Tags: , , , , , , ,

What Sold in the South End: West Newton St. Single Family for $2.75M

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Realtors: Add your photos of recently sold homes to this gallery! It's easy—just sign into your Patch account (or sign into Patch using your Facebook account). Click the "Upload Photos and Videos" button and follow the directions. The proper
South End Patch News

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Posted by Stephen Sandberg - June 28, 2013 at 3:07 am

Categories: Arrests   Tags: , , , , , ,

What Sold in the South End: West Newton St. Single Family for $2.75M

172 W Newton St	Single Family, 6 Beds/4 Baths,  4136 sq. ft	$  2,750,000

Realtors: Add your photos of recently sold homes to this gallery! It’s easy—just sign into your Patch account (or sign into Patch using your Facebook account). Click the “Upload Photos and Videos” button and follow the directions. The property’s address, sale price, listing agent and other details can be included in the photo’s caption.

We’ve provided a sampling of five home sales this week. Look at the photo gallery or the easy-to-scan chart below. Don’t forget to check out our Real Estate section.

Looking to buy a home? Check out our updated list of homes for sale in your neighborhood or this list of upcoming open houses.

Neighborhood

Address

Details

Sale Price

List Price

Listing Agent

Charlestown

42 Eighth Street #1509

Condo, 2 Beds/2 Baths, 1308 sq. ft.

$ 520,000

$ 534,000

 

Century 21 Elite Realty, Jennifer Schneider

North End

102 Commercial Street #1

Condo, 2 Beds, 1 Bath, 925 sq. ft.

$ 480,000

$ 489,000

Otis & Ahearn – 142 Commercial, Jeffrey Goldman

Beacon Hill

 

45 Province Street #710

Condo, 1 Bed/1.5 Baths, 1316 sq. ft.

$ 965,250

$ $ 949,000

RESIS, R. Wayne Lopez

Back Bay

 

184 Marlborough #7

Condo, 3 Beds/2.5 Baths, 1912 sq. ft.

$ 2,697,500

$ 2,695,000

Coldwell Banker, Ellen Meyers

South End

172 W Newton St

Single Family, 6 Beds/4 Baths,  4136 sq. ft

$ 2,750,000

$ 2,695,000

Keller Williams Realty International – Boston – Back Bay, Ken Snyder

“Sold!” is a weekly column featuring the latest real estate sales in and around Boston. Photos and information compiled using MLS data, courtesy of Century 21 North Shore and Coldwell Banker Residential Brokerage.

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Posted by Stephen Sandberg - June 26, 2013 at 11:52 am

Categories: Arrests   Tags: , , , , , ,

Police: Fight on West Newton Leads to Drug Arrest

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The following information was supplied by the Boston Police Department. Charges listed do not indicate convictions.

Police who responded to a fight in the South End ended up arresting two men, one on drug charges and one for disturbing the peace. 

Boston Police officers responded to a fight in the area of West Newton Street and St. Botolph Street at about 4:25 a.m. on Wednesday, June 5, according to police. 

Officers stopped a group of 10 men on the Southwest Corridor at Newton Street and began to frisk each person. 

Police reported that one of the men frisked had a lump in his left pants pocket, which he reportedly told police was a “bag of rice.” The officer told the man to take the bag out of his pocket. According to police, the suspect pulled out a large bag of rice packaged with smaller bags of heroin. Officers also found a digital scale and $ 208 in cash.

Officers placed Lamar Joel Stanford of 430 Columbus Ave. under arrest and charged him with possession of a Class A substance with intent to distribute. read more

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Posted by Stephen Sandberg - June 7, 2013 at 10:45 am

Categories: Arrests   Tags: , , , , , ,

What Sold in the South End: West Newton St. Condo for $1.34M

154 West Newton St #3
	Condo, 3 Beds/2.5 Baths, 1742 sq. ft	$  1,340,000

Realtors: Add your photos of recently sold homes to this gallery! It’s easy—just sign into your Patch account (or sign into Patch using your Facebook account). Click the “Upload Photos and Videos” button and follow the directions. The property’s address, sale price, listing agent and other details can be included in the photo’s caption.

We’ve provided a sampling of five home sales this week. Look at the photo gallery or the easy-to-scan chart below. Don’t forget to check out our Real Estate section.

Looking to buy a home? Check out our weekly list of open houses, which posts Fridays at noon, or see this Zillow listing of homes for sale in your neighborhood. 

Neighborhood

Address

Details

Sale Price

List Price

Listing Agent

Charlestown

215 Bunker Hill Street #2

Condo, 2 Beds/2 Baths, 1465 sq. ft.

$ 610,000

 

$ 589,000

 

Hammond Residential, Nancy Roth

North End

85 East India Row #18G

Condo, 2 Beds, 1.5 Baths, 1218 sq. ft.

$ 770,000

 

$ 799,000

 

Keller Williams Realty International – Boston – Back Bay, Horn Group

Beacon Hill

 

44 Chestnut St #1

Condo, 1 Bed/1 Bath, 806 sq. ft.

$ 528,500

 

$ 559,000

 

Coldwell Banker, Susan Johnson

Back Bay

 

110 Stuart Street #22B

Condo, 2 Beds/2.5 Baths, 1794 sq. ft.

$ 1,950,000

 

$ 2,160,000

 

Otis & Ahearn – Newbury St, Dinny Herron

South End

154 West Newton St #3

Condo, 3 Beds/2.5 Baths, 1742 sq. ft

$ 1,340,000

 

$ 1,395,000

 

Hammond Residential, Thom McGair

“Sold!” is a weekly column featuring the latest real estate sales in and around Boston. Photos and information compiled using MLS data, courtesy of Century 21 North Shore and Coldwell Banker Residential Brokerage. read more

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Posted by Stephen Sandberg - May 22, 2013 at 7:06 pm

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