Posts tagged "Realty"

Citadel Realty, LLC v. Endeavor Capital North, LLC, et al. (Lawyers Weekly No. 11-033-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-735                                        Appeals Court   CITADEL REALTY, LLC  vs.  ENDEAVOR CAPITAL NORTH, LLC, & others.[1]     No. 16-P-735.   Suffolk.     November 7, 2017. – March 19, 2018.   Present:  Wolohojian, Massing, & Wendlandt, JJ.     Practice, Civil, Interlocutory appeal, Motion to dismiss, Declaratory proceeding.  Lis Pendens.  Declaratory Relief.  Mortgage, Foreclosure, Discharge.  Notice, Foreclosure of mortgage.  Real Property, Mortgage.       Civil action commenced in the Superior Court Department on January 29, 2016.   A special motion to dismiss was heard by William F. Sullivan, J.     Jonas A. Jacobson for the plaintiff. Scott K. DeMello (Rosemary A. Traini also present) for the defendants.     WENDLANDT, J.  This appeal presents occasion to clarify the scope of this court’s review of an interlocutory order denying a special motion to dismiss brought pursuant to G. L. c. 184, § 15, the lis pendens statute.  Here, the defendants sought to dismiss the entire action, including (1) one claim supporting the memorandum of lis pendens and affecting title, and (2) other claims that were not the basis for the lis pendens.  We hold that our review is limited to those portions of the interlocutory order supporting the memorandum of lis pendens. Citadel Realty, LLC (Citadel), filed a complaint in the Superior Court against the defendants, seeking to void the foreclosure sale of Citadel’s real property in the Dorchester section of Boston (property).  In addition, Citadel sought damages and reformation of the underlying mortgages.  Following the filing of its verified amended complaint, Citadel filed a motion for approval of a memorandum of lis pendens, pursuant to G. L. c. 184, § 15(b), which was allowed.  The defendants filed a motion opposing the approval of the memorandum of lis pendens and seeking to dismiss the complaint, which was, in part, a special motion to dismiss pursuant to G. L. c. 184, § 15(c).  The motion was denied.  The defendants filed the present interlocutory appeal from the denial of their motion to dismiss, purporting to appeal the motion judge’s decision declining to dismiss both the claim supporting the lis pendens and affecting title, and the claims that did not support the lis pendens. Background.  We set forth the facts from the verified pleadings and affidavits that were before the judge.  G. L. c. 184, § 15(c).  In 2011, Mario Lozano approached Endeavor Capital, LLC (Endeavor),[2] seeking a loan in connection with the property.  […]

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Posted by Massachusetts Legal Resources - March 19, 2018 at 8:43 pm

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FBT Everett Realty, LLC v. Massachusetts Gaming Commission (Lawyers Weekly No. 09-042-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3481 BLS 1 FBT EVERETT REALTY, LLC vs. MASSACHUSETTS GAMING COMMISSION MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT This is a claim for damages by plaintiff, FBT Everett Realty, LLC (“FBT”), arising from an alleged taking of property by the Massachusetts Gaming Commission (“Commission”). FBT’s amended complaint asserts three counts: Count II (“Per Se Taking”), Count III (“Regulatory Taking”), Count IV (“Impairment of a Contract Right”).1 All three counts claim that as a result of conduct by the Commission, FBT is entitled to compensation under either the Massachusetts Declaration of Rights or the United States Constitution, or both. The Commission moves to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6). BACKGROUND The amended complaint alleges the following facts, accepted for this motion as true. FBT was the owner of a parcel of land (the “parcel”) in Everett, Massachusetts. On December 19, 2012, FBT entered into an Option Agreement with Wynn MA, LLC concerning the possible sale of the parcel to Wynn. Wynn anticipated applying for approval from the 1 Count I of the amended complaint has been dismissed, as described in the Background section of this memorandum. 1 Commission to build and operate a casino gambling facility on the parcel. Under the Option Agreement, Wynn agreed to pay FBT $ 100,000 per month for the right to purchase the parcel for $ 75 million in the event that Wynn was awarded the Category 1 destination resort casino license. The Option Agreement granted to Wynn “the option, but not the obligation, to purchase [the parcel]” from FBT. Amended Complaint, Ex A. In connection with Wynn’s application to the Commission, FBT agreed to “reasonably cooperate with [Wynn] with respect to any information it reasonably requires to complete the Casino Application and respond to any such inquiries throughout the licensing process.” Id. In November 2011, the Legislature enacted the Massachusetts Gaming Act, which is codified at G.L. c. 23K. The Act establishes the Commission as the agency to implement and regulate casino gambling. The Act, and the regulations promulgated thereunder, establish a two phase application process for a Category 1 license. The first phase is known as the “Request for Application Phase 1.” In this phase, the applicant is required to make disclosures regarding itself and affiliates. The Investigations and Enforcement Bureau (“IEB”) of the Commission then conducts an investigation of the applicant and provides findings and recommendations to the Commission regarding the suitability of the applicant and its affiliates and business associates. Only those applicants found suitable to receive a license may proceed to the second phase of the process, known as Request for Application Phase 2, […]

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Posted by Massachusetts Legal Resources - December 6, 2017 at 2:35 am

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FBT Everett Realty, LLC v. Massachusetts Gaming Commission (Lawyers Weekly No. 12-082-17)

  COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2016-03481-BLS1 FBT EVERETT REALTY, LLC vs. MASSACHUSETTS GAMING COMMISSION MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS FBT EVERETT, LLC’S COMPLAINT PURSUANT TO MASS. R CIV. P. 12(b)(1) AND 12(b)(6) Plaintiff FBT Everett Realty, LLC (FBT) entered into an Option Agreement with Wynn MA, LLC (Wynn), an affiliate of Wynn Resorts, pursuant to which Wynn acquired the option to purchase a parcel of land in Everett, Massachusetts owned by FBT (the Everett Parcel), if Wynn was awarded a casino license by the defendant Massachusetts Gaming Commission (the Commission).  In this action, FTP alleges that it suffered losses as result of the Commission’s tortious interference with that Option Agreement.  Its Complaint pleads a single count of intentional interference with contract in which it claims that, as a result of unlawful pressure exerted on Wynn by the Commission, Wynn insisted that FBT renegotiate the purchase price of the Everett Parcel, reducing that purchase price from $ 75 million to $ 35 million.  The case is now before the court on the Commission’s motion to dismiss FBT’s complaint pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6).  In particular, the Commission contends that it is a “public employer” under § 1 of the Massachusetts Tort Claims Act (G. L. c. 258, §§ 1 et seq., the MTCA), and, therefore, under § 10(c) it is immune from suits for intentional torts, including intentional interference with contractual relations.  For the reasons that follow, the motion is 2   ALLOWED.1 1 Because theCourt concludes that the Commission is immune from suit under G. L. c. 258, § 10(c), the Court does not address the Commission’s contention that, even if the Commission were subject to such claims, the complaint fails to plead a claim for intentional interference with contractual relations on which relief may be granted. BACKGROUND The following facts are drawn from the allegations in the Complaint (assumed to be true for the purposes of this motion), the Gaming Act,the regulations promulgated pursuant thereto, and the materials attached to the Complaint. The Gaming Act and its Regulations In November 2011, the Legislature enacted the Gaming Act, which is codified at G. L. c. 23K.  The Gaming Act permits casino gambling in the Commonwealth and establishes a system for regulating it.  The Act establishes the Commission as the agency to implement casino gambling pursuant to the Act’s terms and regulate it.  G. L. c. 23K, §§ 3(a) and 5.  Among other things, the Act empowers the Commission to award a license to operate a casino with gaming tables and slot machines (the Category 1 Licenses) in each of three regions of the Commonwealth (Regions A, […]

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Posted by Massachusetts Legal Resources - July 4, 2017 at 1:43 am

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

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV00936-BLS2 ____________________ BAY COLONY PROPERTY DEVELOPMENT COMPANY and WILLIAM E. LOCKE, JR. v. HEADLANDS REALTY CORPORATION; PROLOGIS LOGISTICS SERVICES INC.; AMB PROPERTY II, L.P.; AMB PROPERTY CORPORATION; and PROLOGIS, INC. ____________________ MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND DENYING PLAINTIFFS’ CROSS-MOTION TO STRIKE Bay Colony Property Development Company and William E. Locke, Jr., claim that Defendants hired them to plan, coordinate, and supervise the development of two different properties in Pennsylvania. They allege that Defendants promised to pay Bay Colony two percent of the development costs (the “Base Fee”) plus ten percent of the profits (the “Incentive Fee”) for its work on one site, and promised to pay the same percentage amounts to Locke for his work on the other site. Plaintiffs allege they have not been paid and are owed part of the Base Fees and all of the Incentive Fees for the two projects. Plaintiffs assert claims for breach of contract, unjust enrichment, and declaratory judgment as to enforceability of the alleged contracts. Defendants have moved to dismiss on the ground that all claims are time barred. They argue that the statutory limitations period began to run on October 29, 2010, when AMB Property Corporation (“AMB”) sent a letter disputing whether it had any binding contract with Bay Colony. If that were correct, then all claims would be time barred—whether the Massachusetts six-year limitations period or the Pennsylvania four-year limitations period controlled—because this action was not filed in Middlesex Superior Court until November 14, 2016, more than six years later. The Court concludes that it may consider the October 2010 letter in deciding the motion to dismiss, but that it must DENY the motion because that letter did not put Plaintiffs on notice of any actual or anticipated breach of contract. 1. Considering the 2010 Letter. Plaintiffs ask the Court to strike or at least disregard the October 29, 2010, letter that is attached to Defendants’ motion to dismiss. They argue that the Court may not consider this letter without converting – 2 – the motion to dismiss into a motion for summary judgment because Plaintiffs did not attach the letter to, reference the letter in, or rely on the letter in drafting the complaint. The Court disagrees. The authenticity of this letter and the fact that it was sent to Plaintiffs are not in dispute, as Plaintiffs acknowledged at oral argument. It is therefore permissible and appropriate for the Court to consider the letter in deciding Defendants’ motion to dismiss. When deciding a motion to dismiss under Rule 12(b)(6), a court may consider “documents the authenticity of which is not disputed by the parties” without converting the motion […]

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Posted by Massachusetts Legal Resources - June 15, 2017 at 2:03 pm

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Erickson v. Clancy Realty Trust, et al. (Lawyers Weekly No. 11-003-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-50                                         Appeals Court   ROBERT J. ERICKSON  vs.  CLANCY REALTY TRUST & others.[1] No. 15-P-50. Barnstable.     November 12, 2015. – January 6, 2016.   Present:  Cohen, Grainger, & Wolohojian, JJ.     Way, Public:  discontinuance.  Estoppel.       Civil action commenced in the Superior Court Department on March 5, 2010.   The case was heard by Christopher J. Muse, J.     James B. Stinson for the plaintiff. Harry R. Thomasson for the defendants.     GRAINGER J.  Plaintiff Robert J. Erickson appeals from a declaratory judgment in Superior Court finding that Old County Road (road) in Eastham was discontinued by a 1903 Superior Court decree pursuant to “An Act To Promote The Abolition Of Grade Crossings,” Chapter 428 of the Acts of 1890, as amended, St. 1891, c. 123 (act).  The defendants are abutters or nearby landowners in Eastham.  On appeal, the plaintiff argues that the road was not discontinued by the 1903 Superior Court decree and that it still operates as a public way. 1.  Background.  The facts are uncontested.  The plaintiff’s property is a parcel bounded on the northwest by the road, which extends from Route 6, a State highway, to an area past the plaintiff’s property.  The Cape Cod Rail Trail, formerly the New York, New Haven & Hartford Railroad (railroad), lies to the east of the plaintiff’s property, and to the south are parcels owned by the Sverids.  The plaintiff claims that the road is the only means of accessing his property; otherwise, it is landlocked. The road was first laid out as a public way on June 19, 1721.  It is shown on various maps throughout the eighteenth and nineteenth centuries.  The path of the road crossed over to the eastern side of the railroad in Eastham, and crossed back to the western side of the railroad in Wellfleet — a total of two grade crossings.  In 1890, the act was passed to promote the abolition of such grade crossings and authorized the Superior Court, by decree, to confirm a recommendation by a neutral commission to extinguish a specified portion of an existing public way and to establish an alternate route that avoided any grade crossings.  See St. 1890, c. 428, § 4.  The parties agree that the commission’s report and a subsequent Superior Court decree[2] (decree) did so. 2.  Discussion.  The question presented is whether […]

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Posted by Massachusetts Legal Resources - January 7, 2016 at 2:23 am

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Realty Finance Holdings, LLC v. KS Shiraz Manager, LLC, et al. (Lawyers Weekly No. 11-110-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-252                                        Appeals Court   REALTY FINANCE HOLDINGS, LLC[1]  vs.  KS SHIRAZ MANAGER, LLC, & others.[2] No. 13-P-252. Suffolk.     January 9, 2014.  –  September 5, 2014.   Present:  Katzmann, Fecteau, & Milkey, JJ. Contract, What constitutes, Condition precedent, Choice of law clause, Damages.  Evidence, Parol evidence.  Practice, Civil, Summary judgment.  Damages, Breach of contract.       Civil action commenced in the Superior Court Department on August 21, 2008.   The case was heard by Charles T. Spurlock, J., on a motion for summary judgment; a hearing on the assessment of damages was had before Carol S. Ball, J., and entry of final judgment was ordered by her.     Jeffrey P. Allen (Maria Galvagna Mesinger with him) for the defendants. Paul S. Samson for the plaintiff.   KATZMANN, J.  In this appeal, the parties dispute whether two thirty-eight page limited liability company agreements, negotiated and drafted with the assistance of counsel and each containing an integration clause, should be enforced as written.  A Superior Court judge entered summary judgment for the plaintiff, ruling that the agreements were fully integrated contracts and that the parol evidence rule prohibited consideration of the parties’ negotiations to show that the agreements were subject to contingencies.  A final judgment then entered awarding damages to the plaintiff.  On appeal, the defendants argue that it was always understood that the agreements, though fully executed, were not to take effect until certain financing and property acquisitions were in place and   that electronic mail message (e-mail) exchanges between the parties raise genuine issues of material fact whether integration was intended.  The defendants further maintain that the plaintiff is not entitled to damages under the terms of the agreements.  We affirm. 1.  Facts.  We take the undisputed facts from the judge’s February 1, 2010, “Memorandum and Order on the Plaintiff’s Motion for Summary Judgment on Liability” and from the parties’ statement of undisputed facts.  We also add material from the record for purposes of background and discussion, as noted.  During the relevant events of this case, the plaintiff was a Delaware limited liability company involved in real estate specialty finance.[3]  The defendants are related Massachusetts entities involved in real estate acquisition and management.  Kambiz Shahbazi is the principal of KS GS Manager, LLC; KS GS Equity Partners, LLC; KS Shiraz Manager, LLC; and KS Shiraz Equity Patners, LLC, the entities that […]

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Posted by Massachusetts Legal Resources - September 5, 2014 at 9:09 pm

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Franklin Office Park Realty Corp. v. Commissioner of the Department of Environmental Protection (Lawyers Weekly No. 10-172-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11334   FRANKLIN OFFICE PARK REALTY CORP.  vs.  COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION.     Worcester.     May 9, 2013.  ‑  September 16, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Department of Environmental Protection.  Administrative Law, Agency’s interpretation of statute, Regulations, Judicial review.  Practice, Civil, Review of administrative action.  Environment, Air pollution.  Asbestos.  Statute, Construction.  Regulation.  Words, “Wilful.”       Civil action commenced in the Superior Court Department on March 22, 2011.   The case was heard by John S. McCann, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Louis M. Dundin, Assistant Attorney General, for the defendant. Paul E. White for the plaintiff.       DUFFLY, J.  The plaintiff, Franklin Office Park Realty Corp. (Franklin), challenges the assessment of a penalty in the amount of $ 18,225, imposed by the Department of Environmental Protection (DEP) for improper handling and disposal of roof shingles that contained asbestos.  Franklin argues that, pursuant to G. L. c. 21A, § 16 (administrative penalties act), it was entitled to a notice of noncompliance and the opportunity to cure any violations before a penalty was imposed.  The commissioner of the DEP (commissioner) accepted the recommendation of a hearing officer that he affirm the penalty on the ground that Franklin’s failure to comply fell within one of six exceptions to the notice requirement because it was “willful and not the result of error” (wilfulness exception), see G. L. c. 21A, § 16, which he interpreted as requiring only a showing of “the intent to do an act that violates the law if done.”  Franklin sought judicial review pursuant to G. L. c. 30A, § 14; a judge of the Superior Court determined some of the facts found by the hearing officer to be unsupported by substantial evidence, and that the DEP’s interpretation of G. L. c. 21A, § 16, was unreasonable and thus not entitled to deference.  DEP appealed, and we transferred the case to this court on our own motion. We conclude that the language “willful and not the result of error” in G. L. c. 21A, § 16, when considered in the context of the statutory scheme and the Legislature’s intent, clearly requires a showing that the party who has not complied with the law knew or should […]

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Posted by Massachusetts Legal Resources - September 17, 2013 at 1:50 pm

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