Patriot Power, LLC v. New Rounder, LLC, et al. (Lawyers Weekly No. 11-027-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-420 Appeals Court PATRIOT POWER, LLC[1] vs. NEW ROUNDER, LLC, & another.[2] No. 16-P-420. Middlesex. December 8, 2016. – March 13, 2017. Present: Kafker, C.J., Grainger, & Sullivan, JJ. Declaratory Relief. Practice, Civil, Declaratory proceeding, Burden of proof, Instructions to jury. Contract, Lease of real estate, Condition, Termination. Landlord and Tenant, Termination of lease. Real Property, Lease. Notice. Civil action commenced in the Superior Court Department on March 24, 2014. The case was tried before Bruce R. Henry, J. Mark C. O’Connor (Douglas S. Denny-Brown also present) for the plaintiff. Robert F. Feeney for the defendants. KAFKER, C.J. The issue presented in this declaratory judgment and breach of contract action is which party bears the burden of proof at trial regarding the exercise of a termination option in a lease. The plaintiff, Patriot Power, LLC, doing business as MandaShan Enterprises, was the landlord in a commercial lease; the defendant New Rounder, LLC, was the tenant, and the defendant Concord Music Group, Inc., was the guarantor (we refer to the defendants collectively as tenant). The lease provided that it would automatically renew each year unless either party timely notified the other that it wished to exercise a termination option in the lease. In the instant case, the landlord filed a complaint seeking a declaratory judgment that the tenant had not effectively terminated the lease, and asking for one year’s rent plus consequential damages. The tenant answered and counterclaimed, seeking a declaratory judgment that it had properly notified the landlord of its intention to terminate. The landlord sought a pretrial ruling that the tenant had the burden of proof at trial on the issue of whether it sent a lease termination letter before the nonrenewal deadline. A judge denied the motion, ruling that as the “moving party,” the landlord bore the burden to prove it did not receive the termination letter on time. At trial, a different judge instructed the jury in accordance with the pretrial ruling. The landlord objected to this instruction. The jury returned a verdict in favor of the tenant. On appeal, the landlord contends that the trial judge’s burden of proof instruction was erroneous and prejudicial.[3] We conclude that the tenant had the burden to prove it fulfilled the termination option requirements outlined in the […]
Patriot Power, LLC v. New Rounder, LLC, et al. (Lawyers Weekly No. 11-027-17)
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 16-P-420 Appeals Court PATRIOT POWER, LLC[1] vs. NEW ROUNDER, LLC, & another.[2] No. 16-P-420. Middlesex. December 8, 2016. – March 13, 2017. Present: Kafker, C.J., Grainger, & Sullivan, JJ. Declaratory Relief. Practice, Civil, Declaratory proceeding, Burden of proof, Instructions to jury. Contract, Lease of real estate, Condition, Termination. Landlord and Tenant, Termination of lease. Real Property, Lease. Notice. Civil action commenced in the Superior Court Department on March 24, 2014. The case was tried before Bruce R. Henry, J. Mark C. O’Connor (Douglas S. Denny-Brown also present) for the plaintiff. Robert F. Feeney for the defendants. KAFKER, C.J. The issue presented in this declaratory judgment and breach of contract action is which party bears the burden of proof at trial regarding the exercise of a termination option in a lease. The plaintiff, Patriot Power, LLC, doing business as MandaShan Enterprises, was the landlord in a commercial lease; the defendant New Rounder, LLC, was the tenant, and the defendant Concord Music Group, Inc., was the guarantor (we refer to the defendants collectively as tenant). The lease provided that it would automatically renew each year unless either party timely notified the other that it wished to exercise a termination option in the lease. In the instant case, the landlord filed a complaint seeking a declaratory judgment that the tenant had not effectively terminated the lease, and asking for one year’s rent plus consequential damages. The tenant answered and counterclaimed, seeking a declaratory judgment that it had properly notified the landlord of its intention to terminate. The landlord sought a pretrial ruling that the tenant had the burden of proof at trial on the issue of whether it sent a lease termination letter before the nonrenewal deadline. A judge denied the motion, ruling that as the “moving party,” the landlord bore the burden to prove it did not receive the termination letter on time. At trial, a different judge instructed the jury in accordance with the pretrial ruling. The landlord objected to this instruction. The jury returned a verdict in favor of the tenant. On appeal, the landlord contends that the trial judge’s burden of proof instruction was erroneous and prejudicial.[3] We conclude that the tenant had the burden to prove it fulfilled the termination option requirements outlined in the […]
Balles v. Babcock Power Inc. (Lawyers Weekly No. 10-039-17)
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-12112 ERIC N. BALLES vs. BABCOCK POWER INC. Middlesex. November 8, 2016. – March 6, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Executive. Employment, Termination. Corporation, Stockholder, Close corporation, Liability of officers. Contract, Employment, Performance and breach. Fiduciary. Civil action commenced in the Superior Court Department on December 21, 2010. The case was heard by Douglas H. Wilkins, J. The Supreme Judicial Court granted an application for direct appellate review. Mark C. Fleming (Jonathan A. Cox also present) for the defendant. Thomas J. Carey, Jr. (Jody L. Newman also present) for the plaintiff. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Lenk, J. The dispute before us chiefly concerns the meaning and application of the stockholders’ agreement between a company, Babcock Power Inc. (Babcock or company), and its former executive, Eric N. Balles. To a lesser extent, it also concerns the separate employment agreement between the two. Babcock terminated Balles’s employment when it discovered that he was engaged in an ongoing extramarital affair with a young female subordinate. Babcock’s board of directors (board) subsequently concluded that Balles had been terminated “for cause” under the terms of his stockholders’ agreement with the company, thereby allowing the board to repurchase his stock at a minimal price. The board withheld subsequent dividends, amounting to approximately $ 900,000 in total, and refused to pay Balles any severance. Years of litigation followed, with Balles seeking declaratory relief to the effect that the stock be returned to him, along with the withheld dividends. Babcock responded with counterclaims on various grounds. Following a bifurcated trial, a Superior Court jury rejected Babcock’s counterclaims, and although Balles prevailed at a jury-waived trial on his claim for declaratory relief, a portion of his prior salary was subjected to equitable forfeiture and he was unsuccessful in his bid to receive severance pay. Babcock appealed from the judgment at the jury-waived trial, and we allowed its application for direct appellate review. We affirm.[1] Background. We recite the facts found by the trial judge, which the parties acknowledged at oral argument they do not challenge. We have supplemented those findings by reference to facts in the record that the parties do not dispute. Stockholders’ agreement […]
Brockton Power Company LLC v. Energy Facilities Siting Board (Lawyers Weekly No. 10-132-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11405 SJC-11407 BROCKTON POWER COMPANY LLC vs. ENERGY FACILITIES SITING BOARD & others.[1] CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD & another[2] (No. 2). Suffolk. March 4, 2014. – July 31, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3] Energy Facilities Siting Board. Public Utilities, Electric company, Energy company. Municipal Corporations, Electric plant, Water supply. Environment, Air pollution. Electric Company. Administrative Law, Decision, Judicial review, Substantial evidence. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 28, 2011. The case was reported by Spina, J. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 26, 2011. The case was reported by Spina, J. Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. Wendy B. Jacobs & Aladdine D. Joroff, for Massachusetts Rivers Alliance & others, amici curiae, submitted a brief. BOTSFORD, J. On August 7, 2009, the Energy Facilities Siting Board (board), acting pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), approved the petition of Brockton Power Company LLC (Brockton Power or company), to build and operate a 350-megawatt combined-cycle energy generating facility (facility or project) powered by natural gas and ultra-low sulfur distillate (ULSD) in the city of Brockton (city). As approved by the board, the facility would use wastewater from the city’s advanced wastewater reclamation facility (AWRF) for its cooling tower. In a consolidated appeal by three of the interveners, we affirmed the board’s decision. See Brockton v. Energy Facilities Siting Bd. (No. 1), ante (2014) (Brockton [No. 1]), decided today. On April 9, 2010, while the consolidated appeal was pending, Brockton Power submitted a project change filing (PCF) to the board, seeking approval of three changes to its project. In the PCF, Brockton Power sought to: (1) change the source of the facility’s cooling tower water from the AWRF to the Brockton municipal water supply (BMWS); (2) eliminate the use of ULSD as an alternative fuel and rely solely on natural gas […]
Back Bay Power Outage Causes MassPike Closure
State Police are in the process of closing the Massachusetts Turnpike (I-90) at the Prudential Tunnel due to a large scale overnight power outage in the area. Eastbound traffic will be detoured to Storrow Drive at Exit 18, and westbound traffic will be detoured to I-93 via the Ted Williams Tunnel, according to a state police alert Sunday morning. Travelers are advised to avoid the area completely, as delays are anticipated at the detour locations. Motorists are encouraged to Rt.2, Rt.9, Storrow Drive, Soldier’s Field Road and Rt.128 to I-93, accessing them as far from the detour points as possible to help minimize traffic delays in those areas, the alert said. The power outage caused a lightning and ventilation issue in the tunnel, according to an alert. Charlesgate East and West and the Bowker overpass at Boylston Street are also impacted. There are 2,717 NStar customers currently without power, according to an outage map. South End Patch