Posts tagged "Weekly"

Dell’Isola v. State Board of Retirement, et al. (Lawyers Weekly No. 11-154-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-963                                        Appeals Court

MICHAEL DELL’ISOLA  vs.  STATE BOARD OF RETIREMENT

another[1].

No. 16-P-963.

Suffolk.     September 8, 2017. – December 15, 2017.

Present:  Rubin, Neyman, & Henry, JJ.

Retirement.  Public Employment, Forfeiture of pension.  Correction Officer.

Civil action commenced in the Superior Court Department on December 31, 2014.

The case was heard by Linda E. Giles, J., on motions for judgment on the pleadings. read more

Posted by Stephen Sandberg - December 15, 2017 at 10:42 pm

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State Board of Retirement v. O’Hare, et al. (Lawyers Weekly No. 11-155-17)

Posted by Stephen Sandberg - December 15, 2017 at 7:08 pm

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Commonwealth v. Holley (and five companion cases) (Lawyers Weekly No. 10-197-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12130

COMMONWEALTH  vs.  REGINALD HOLLEY

(and five companion cases[1]).

Suffolk.     September 8, 2017. – December 14, 2017.

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

Homicide.  Robbery.  Firearms.  Joint Enterprise.  Felony-Murder Rule.  Search and Seizure, Warrant, Probable cause.  Constitutional Law, Probable cause.  Probable Cause.  Cellular Telephone.  Jury and Jurors.  Evidence, Joint enterprise, Prior misconduct.  Practice, Criminal, Capital case, Motion to suppress, Warrant, Instructions to jury, Jury and jurors, Deliberation of jury, Substitution of alternate juror, Severance. read more

Posted by Stephen Sandberg - December 14, 2017 at 6:05 pm

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Commonwealth v. Woollam (Lawyers Weekly No. 10-196-17)

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-10709

COMMONWEALTH  vs.  DEREK WOOLLAM.

Bristol.     October 6, 2017. – December 13, 2017.

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

Homicide.  Constitutional Law, Grand jury, Assistance of counsel, Admissions and confessions, Voluntariness of statement.  Due Process of Law, Grand jury proceedings, Assistance of counsel.  Grand Jury.  Cellular Telephone.  Evidence, Grand jury proceedings, Authentication, State of mind, Motive, Consciousness of guilt, Bias of government witness, Prior misconduct, Admissions and confessions, Voluntariness of statement.  Witness, Bias.  Practice, Criminal, Capital case, Grand jury proceedings, Assistance of counsel, Conduct of prosecutor, Admissions and confessions, Voluntariness of statement. read more

Posted by Stephen Sandberg - December 13, 2017 at 5:02 pm

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Commonwealth v. Johnson (and two companion cases) (Lawyers Weekly No. 11-153-17)

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

17-P-58                                         Appeals Court

17-P-59

17-P-70

COMMONWEALTH  vs.  ALEXANDER JOHNSON

(and two companion cases[1]).

Nos. 17-P-58, 17-P-59, & 17-P-70.

Norfolk.     November 1, 2017. – December 12, 2017.

Present:  Milkey, Blake, & Singh, JJ.

Assault and Battery by Means of a Dangerous Weapon.  Evidence, Joint venturer.  Practice, Criminal, Dismissal, Indictment.

Indictments found and returned in the Superior Court Department on March 24, 2016. read more

Posted by Stephen Sandberg - December 12, 2017 at 4:00 pm

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In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 11-152-17)

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-215                                        Appeals Court

IN THE MATTER OF A GRAND JURY INVESTIGATION.

 

 

No. 16-P-215.

Middlesex.     October 5, 2017. – December 11, 2017.

Present:  Sullivan, Blake, & Singh, JJ.

Witness, Compelling giving of evidence, Self-incrimination.  Constitutional Law, Self-incrimination.  Cellular TelephoneGrand JuryPrivacyPublic Records. Practice, Criminal, Assistance of counsel.  Contempt.

Motion filed in the Superior Court Department on January 22, 2016. read more

Posted by Stephen Sandberg - December 11, 2017 at 6:32 pm

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Commonwealth v. Diaz (Lawyers Weekly No. 10-195-17)

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-11812

COMMONWEALTH  vs.  FAUSTINO DIAZ, JR.

Hampden.     September 8, 2017. – December 8, 2017.

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

Homicide.  Practice, Criminal, Argument by prosecutor, Capital case.  Evidence, Chain of custody.

Indictment found and returned in the Superior Court Department on February 15, 2013.

The case was tried before Constance M. Sweeney, J.

Andrew S. Crouch for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. read more

Posted by Stephen Sandberg - December 8, 2017 at 6:59 pm

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Commonwealth v. Camblin (Lawyers Weekly No. 10-194-17)

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-11774

COMMONWEALTH  vs.  KIRK P. CAMBLIN.

Middlesex.     September 7, 2017. – December 8, 2017.

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

Motor Vehicle, Operating under the influence.  Evidence, Breathalyzer test, Scientific test.

Complaint received and sworn to in the Ayer Division of the District Court Department on April 28, 2008.

Following review by this court, 471 Mass. 639 (2015), a motion to exclude evidence as scientifically unreliable was heard by Mark A. Sullivan, J. read more

Posted by Stephen Sandberg - December 8, 2017 at 3:24 pm

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Schiefer, et al. v. Bain Capital, LP (Lawyers Weekly No. 09-044-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
Civ. No. 2015-3599-BLS2
ASHLEY SCHIEFER, COLLEEN McPHERSON,
ELIZABETH BURNHAM, and REBECCA SHAAL,
for themselves and on behalf of all others similarly situated,
Plaintiffs
vs.
BAIN CAPITAL, LP, f/k/a BAIN CAPITAL, LLC,
Defendant
MEMORANDUM OF DECISION AND ORDER ON
ASHLEY SCHIEFER’S APPLICATION FOR
PRE-JUDGMENT INTEREST
On August 21, 2017, Ashley Schiefer, one of four plaintiffs in this putative class action alleging failure to pay overtime wages, accepted a Rule 68 Offer of Judgment (the Offer) made by defendant Bain Capital LP (Bain). The Offer included $ 80,000, reasonable attorney’s fees and costs, and prejudgment interest as determined by the Court. This Court has already made a determination as to the attorney’s fees. This Memorandum addresses the question of prejudgment interest. Although both parties agree as to the applicable rate (twelve percent), they disagree as to the date from which interest should be calculated.
Section 6C applies to actions like this one based on contractual obligations. By its terms, the statute provides that that interest accrues ““from the date of the breach or demand,” provided that such date can be determined. If the date of the breach or demand is not established, interest accrues “from the date of the commencement of the action.” The purpose of Section 6C is to “compensate a damaged party for the loss of use or unlawful detention of money.” Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 841 (1986), quoting Perkins School for the Blind v. Rate Setting Comm’n, 383 Mass. 825, 835 (1981). Although Section 6C “commands a
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ministerial act, its sole or primary purpose was not to provide administrative ease” but to ensure that the person wrongfully deprived of the use of money is “made whole for his loss.” Sterilite, 396 Mass. at 841-842. Thus, even if there are multiple breaches so as require different calculations, the Court should engage in that analysis in keeping with that statutory purpose. Id.
Plaintiff argues that the dates of defendant’s breaches are “established” within the meaning of Section 6C because the Offer pays Schiefer on her breach of contract claim, and a breach of that contract occurred at the end of each pay period when Bain failed to compensate her for overtime — — a point in time that is easily ascertained and is undisputed. Schiefer worked 72 pay periods during her employment at Bain. If the $ 80,000 Offer is apportioned equally over those pay periods, $ 1,111 should be apportioned to each pay period, with interest calculated from that date. In a chart attached as Exhibit A to her Application, plaintiff explains how those calculations amount to a total of $ 60,813.09 in prejudgment interest. Bain does not dispute the dates on which each pay period ended. Nor does it question the correctness of the formula that Schiefer uses if this Court were to accept her reasoning that she is entitled to prejudgment interest where there are multiple breaches of the contract. Rather, Bain argues more broadly that, because there are multiple breaches, she is precluded from obtaining prejudgment interest that predates the commencement of the action. In support of this argument, Bain relies heavily on Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436 (1998) and argues that Peabody, not Sterilite, should guide this Court’s analysis. This Court disagrees.
The action in Peabody arose out of a contract dispute between a plaintiff construction company and defendant town over the construction of a waste treatment facility. The contract in question called for the construction to be completed by a certain date. Based on a master’s report, the lower court concluded that both parties had not fulfilled their contractual obligations
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and thus could not recover on their respective breach of contract claims: the construction company failed to complete its work by the date specified in the contract, and the town had contributed to the delay. The court nevertheless awarded damages to the plaintiff on a quantum meruit theory, and the SJC affirmed. The SJC then turned to the issue of prejudgment interest and stated: “Where no demand is made and multiple breaches occur…interest must accrue ‘from the date of the commencement of the action.’” Peabody, 426 Mass. at 445. The SJC went on to modify the lower court’s decision so that prejudgment interest was calculated from the date suit was filed.
Bain seizes on this language in Peabody and argues that, notwithstanding Sterilite (which clearly contemplated the possibility of prejudgment interest based on multiple breaches), Schiefer’s prejudgment interest can only be calculated from the date that she joined as a plaintiff in this action. But Bain ignores the context in which the SJC in Peabody made its pronouncement. As the SJC explained, the date of breach in that case was not easily established since both parties were responsible for at least one breach of the contract; indeed, neither party was able to recover on a contract theory. The instant case is quite different.
First, the Offer is to pay Schiefer on her breach of contract claim, not just on the more general claim of quantum meruit. Second unlike the plaintiff in Peabody, Schiefer did not share in any of the responsibility for the alleged wrongdoing or contribute in some way to cause a breach. Finally, the date of breach is easily ascertainable given the nature of the claim at issue: having failed to include compensation for overtime in each paycheck, Bain breached its obligation to pay her overtime each time Schiefer received that paycheck – that is, at the end of each pay period. As of that date, Schiefer was wrongfully deprived of some amount of money. The award of interest is to compensate her for her loss of that money at that point in time when
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she experienced the loss and (as Sterilite requires) to make her whole for her loss. The SJC in Peabody gave no indication that it intended to overrule Sterilite or that, if faced with a situation like the instant one, that it would adopt Bain’s reasoning. Accordingly, plaintiff’s Application for Interest is ALLOWED and prejudgment interest is awarded in the amount of $ 60,613.09.
______________________________
Janet L. Sanders
Justice of the Superior Court
Dated: November 8, 2017 read more

Posted by Stephen Sandberg - December 8, 2017 at 1:05 am

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Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-046-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2016-01432-BLS2
WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. &
JOHN AND CYNTHIA REED FOUNDATION,
Plaintiffs
vs.
CEDAR HILL RETREAT CENTER, INC. &
BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC.,
Defendants
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANTS’ MOTIONS TO DISMISS
PLAINTIFFS’ AMENDED COMPLAINT
This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Property). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the Property, the defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the Property and the Grantor of the Conservation Restriction. Plaintiffs allege that the Ballou Channing induced the Foundation into making a $ 3 million gift in return for Ballou Channing’s promise to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”).
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This lawsuit was instituted on May 4, 2016. In their original Complaint, plaintiffs asserted the following counts against both defendants: breach of the Gift Agreement (Count I); breach of the Conservation Restriction (Count II); promissory estoppel (Count III); unjust enrichment (Count IV); and violation of Chapter 93A (Count V). The defendants filed motions to dismiss. On December 30, 2016, this Court allowed those motions in part. See Memorandum of Decision and Order dated December 30, 2016 (the 2016 Decision). As to Ballou Channing, this Court dismissed Count II because it no longer owned the Property that was subject to the Conservation Restriction. As to Cedar Hill, this Court dismissed Counts I, III and IV – those counts based on the Gift Agreement –because Cedar Hill was not a party to the Gift Agreement. Count V alleging a violation of Chapter 93A was dismissed as to both defendants.
Six months later, plaintiffs amended their complaint to assert new claims against both defendants and to add back some claims that this Court had previously dismissed. Specifically, the Amended Complaint contains a new claim against both defendants based on the same allegations that were the basis of Counts I, III and IV of the original Complaint, but with a wrinkle: this new claim asserts a breach of what is described as a “Letter Agreement” between the defendants Ballou Channing and Cedar Hill. Plaintiffs say that they only learned of this Letter Agreement as a result of discovery in the case but now claim they are third party beneficiaries entitled to enforce it. As a consequence of this new count for breach of contract (the Letter Agreement), the Amended Complaint added Cedar Hill back to the previously dismissed claims against it of unjust enrichment and promissory estoppel. The Amended Complaint also added Ballou Channing back as a defendant on the claim alleging a breach of the Conservation Restriction, even though this Court in its 2016 Decision had dismissed Ballou Channing as a defendant on that claim. Finally, the Amended Complaint accuses Ballou
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Channing of intentional misrepresentation, an entirely new claim. See Count VI of Amended Complaint.
Defendants now bring a second set of motions to dismiss, targeting these new counts and claims, but also asking this Court to dismiss those counts that I had previously concluded would remain in this case. This Court admits to some frustration in dealing with this latest round of motions which, like the earlier ones, are brought pursuant to Rule 12(b) (6), Mass.R.Civ.P. On one hand, plaintiffs seem intent on circumventing this Court’s earlier decision with new (and ultimately unsupported) theories which needlessly complicate what would seem to be a fairly straightforward case. On the other hand, in moving to dismiss all counts (including those that this Court already declined to dismiss earlier), the defendants make essentially the same arguments they made in connection with their first set of motions. To the extent that they rely on materials beyond the four corners of the Complaint, this Court does not understand why it is important (much less appropriate) to litigate these issues under the standard applicable to Rule 12(b) (6) motions.
Ultimately, this Court concludes that the new claims must be dismissed and the old claims must remain – at least until discovery is complete. The Motions are therefore Allowed in part and Denied in part. Thus, after much expenditure of time and resources, this case is back to where it stood in December 2016: the case survives but only as to those claims that remained in the case after this Court’s 2016 Decision.
BACKGROUND
Because many of the allegations made in the Amended Complaint are the same as those alleged in the original one and are fairly summarized in the 2016 Decision, this Court will not
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rehash all of them here, except to summarize those allegations (including any new ones) that are necessary to place the issues in context.
The Reeds are abutters to the Property, which consists of about twelve acres of land. When Ballou Channing acquired the Property, it had certain restrictions on its use. In 2007 when the Reeds learned that these restrictions were soon to expire, they entered into discussions with Ballou Channing about extending and strengthening the restrictions. Ballou Channing represented that it would take about $ 150,000 a year to preserve and maintain the Property without the need to engage in commercial revenue-generating activity. The Reeds, through the Foundation, agreed to make a $ 3 million gift to Ballou Channing to cover these expenses. On October 17, 2008, a Conservation Restriction was recorded with the Plymouth Registry of Deeds that named Ballou Channing as Grantor and plaintiff Wildands Trust as Grantee.
The following year, Ballou Channing created Cedar Hill, a 501(c)(3) organization, to own and operate the Property. Ballou Channing also filed a Petition with the Supreme Judicial Court seeking approval of a transfer of the Property to Cedar Hill, as required by G.L.c. 214 § 1. Exhibit C to Amended Complaint.1 The Petition alluded to the $ 3 million gift from the Foundation and stated that it was to compensate Ballou Channing “for (i) its loss of development rights; (ii) the expense associated with creating the Conservation Restrictions and operating and maintaining the Property in accordance with such restrictions over the years; (iii) the beneficial impact the Conservation Restrictions have upon the surrounding community; and (iv) the fact that the Conservation Restrictions will encumber the Property in perpetuity.” ¶ 15 of Exhibit C to Amended Complaint. The Petition added, however, that neither Ballou Channing nor the
1 The Amended Complaint states that the Petition was filed “without notice” to the plaintiffs. It does not state that the plaintiffs were unaware of its contents, however.
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Foundation had restricted Ballou Channing’s use of the $ 3 million gift “nor envisioned the fund would be used exclusively for the management of the Property.” Id. The Petition further stated that Ballou Channing and Cedar Hill had entered into a Letter Agreement (attached to the Petition) to ensure that Cedar Hill continued to use the Property in accordance with the terms of the Conservation Restriction. To accomplish those ends, Cedar Hill would receive $ 1.4 million from Ballou Channing. That Petition was subsequently approved and the Property was transferred to Cedar Hill by Quitclaim Deed in October 2009. See Exhibit D to Amended Complaint.
The Letter Agreement referenced in the Petition forms the basis of one of the new claims at issue and is attached to the Amended Complaint as Exhibit A. The parties to it are Ballou Channing and Cedar Hill. The Letter Agreement contains certain “Recitals” which acknowledge, among other things, the Conservation Restriction with Wildlands Trust. The Letter Agreement states that $ 1.4 million is being transferred to Cedar Hill to be used “for the purpose of maintaining, operating and improving the Property in accordance with the Conservation Restriction and this Agreement.” It gives member congregations of Ballou Channing permission to use the Property so long as they comply with the Conservation Restriction. Under a section entitled “Dispute Resolution,” the Letter Agreement sets forth a procedure that Ballou Channing must follow in the event that it “becomes aware of or reasonably suspects” that Cedar Hill is not operating the Property in compliance with the Conservation Restriction. If mediation fails, the parties to the Letter Agreement may bring their dispute to Land Court.
The Amended Complaint alleges that since this transfer, Cedar Hill has engaged in commercial revenue-generating activities on the Property which are in violation of the
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Conservation Restriction. It alleges that Cedar Hill has not used the funds to preserve the Property but that it has rather used some portion of them to promote this commercial activity. Ballou Channing is aware of Cedar Hill’s violations and has refused to take steps to end them. Finally, the Amended Complaint accuses Ballou Channing of intentional misrepresentation, relying on essentially the same allegations that form the basis for plaintiffs’ claim that Ballou Channing breached the Gift Agreement.
DISCUSSION
As a result of the 2016 Decision, this case consisted of essentially two claims. One claim (that involved three separate counts) named Ballou Channing as the sole defendant and was based on allegations relating to its receipt of the $ 3 million gift. The second claim was against Cedar Hill as the sole defendant and alleged breach of the Conservation Restriction, with Wildlands Trust as the sole plaintiff. The Amended Complaint now seeks to reinsert Cedar Hill as a defendant on the first set of claims on the theory that both plaintiffs are third party beneficiaries to the Letter Agreement, and are entitled to enforce its terms against both defendants. The Amended Complaint also seeks to add Ballou Channing back as a defendant on the claim based on a violation of Conservation Restriction and to include the Foundation once again as a plaintiff. This Court concludes that these amendments fail to state a claim on which relief may be granted, for some of the same reasons set forth in its earlier opinion.
A. The Letter Agreement
Count III of the Amended Complaint alleges a breach of the Letter Agreement. Count IV and Count V alleging unjust enrichment and promissory estoppel are based in part on the
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same allegations. 2 This Court concludes neither plaintiff has a legal basis for asserting any rights under the Letter Agreement so that Count III must be dismissed, and Counts IV and Count V surviving only as to Ballou Channing as the recipient of the $ 3 million gift. See fn. 3, supra.
The parties to the Letter Agreement are the defendants Cedar Hill and Ballou Channing. Plaintiffs are not parties to the Letter Agreement nor are they identified as having any rights under it. Plaintiffs claim that they nevertheless have standing to enforce its terms because they are third party beneficiaries to it. This Court disagrees.
The Restatement (Second) Contracts § 304 defines the circumstances under which a nonparty to a contract can claim a right to enforce it as a third party beneficiary: “[a] promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty.” (Emphasis added). Intended beneficiaries are different from “incidental beneficiaries,” who have no right under the contract, even though they may benefit from it. Restatement (Second) Contracts § 315. Section 302 of the Restatement defines the difference between them: one is an intended beneficiary if “(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” As explained in comment (e) of Section 304 of the Restatement, one qualifies as an intended beneficiary “where the promisee clearly manifests an intention to confer on the beneficiary a legal right to enforce the contract.”
In accordance with these principles, this Court must look to the language of the Letter Agreement and the circumstances surrounding it to determine whether either plaintiff here is an
2 They are also based on allegations relating to the Gift Agreement, a claim that remains in this case even after today’s decision. Because of that, Count IV and V will not be dismissed but may be asserted against Ballou Channing only.
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intended third party beneficiary. Anderson v. Fox Hill Village Homeowners Corp, 424 Mass. 365, 366 (1997). If the terms of the contract are clear and unambiguous, then its interpretation – including whether it confers rights on a third party – is a question of law. Although there is no requirement that the intended beneficiary be identified by name in the contract, the intent of the contracting parties to create in that third person a right to enforce the contract must be “clear and definite.” James Family Charitable foundation v. State Street Bank and Trust Co., 80 Mass.App.Ct. 720, 724 (2011), quoting Lakew v. MBTA, 65 Mass.App.Ct. 794, 798 (2006). Thus, even if the contract is ambiguous, there must be some circumstances surrounding the making of the contract that demonstrate in a clear and definitive manner that the parties to the contract intended to create rights in a nonparty to enforce its terms.
In the instant case, there is nothing in the language of the Letter Agreement or in the circumstances surrounding it (as described in the Amended Complaint) which suggest that either Wildlands Trust or the Foundation has the right to enforce its terms. As described in the Petition to the SJC, its purpose was to ensure that, in exchange for Ballou Channing’s transfer of the Property together with certain funds, Cedar Hill would maintain and operate the Property in compliance with the Conservation Restriction. If it did not, then the Letter Agreement spelled out exactly what rights Ballou Channing (not the plaintiffs) had against Cedar Hill. Although the plaintiffs may stand to benefit from the Letter Agreement, they are at best incidental beneficiaries, with no legal basis to pursue either Ballou Channing or Cedar Hill for a breach, assuming that one occurred. Indeed, plaintiffs conceded at a hearing on this Motion that neither plaintiff even knew of the Letter Agreement until discovery in this case.
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B. The Conservation Restriction
Count II alleges a breach of the Conservation Restriction. In its 2016 decision, this Court dismissed this claim to the extent that it was asserted against defendant Ballou Channing, since it no longer owned the Property. It also concluded that only plaintiff Wildlands Trust, not the Foundation, could enforce it. In an apparent effort to circumvent that ruling, plaintiffs have added back both of these parties, ostensibly on the grounds that Cedar Hill is merely an “instrumentality” of Ballou Channing, which still “controls” the Property. The allegations in the Amended Complaint, even construed in the light most favorable to plaintiffs, do not support that.
Cedar Hill is a separate entity which, according the Petition approved by the SJC, is a nonprofit corporation duly registered with the Attorney General. The Amended Complaint alleges no facts to dispute that. According to the Petition and to the Letter Agreement, Cedar Hill was created to take over from Ballou Channing the responsibilities of maintaining the Property, which was conveyed to Cedar Hill after the SJC approved the Petition. The Amended Complaint does not dispute that either. That Cedar Hill had certain contractual obligations to Ballou Channing under the Letter Agreement– or that the Letter Agreement gave Ballou Channing certain rights in the event Cedar Hill did not comply — does not change the fact that these are separate corporate entities. The Amended Complaint does not allege any facts to support the notion that Ballou Channing and Cedar Hill are alter egos, such that these corporate formalities should be ignored. In short, Ballou Channing is not a proper defendant on this claim, for the same reasons that this Court articulated in its 2016 Decision. Nor is the Foundation a proper plaintiff for the reasons set forth in that same decision.
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C. Intentional Misrepresentation
To state a claim for fraudulent misrepresentation, the complaint must allege facts showing that: “(1) the defendant made a misrepresentation of fact; (2) it was made with the intention to induce another to act upon it; (3) it was made with the knowledge of its untruth; (4) it was intended that it be acted upon, and that it was in fact acted upon; and (5) damage directly resulted therefrom.” Equipment & Systems For Industry, Inc. v. Northmeadows Construction Co., Inc. 59 Mass.App.Ct. 931 (2003), quoting Graphic Arts Finishers, Inc. v. Boston Redev. Authority, 357 Mass. 40, 44 (1970). Rule 9(b), Mass.R.Civ.P. requires that a claim of fraud must be alleged with particularity. The Amended Complaint fails to satisfy this heightened pleading standard or allege facts sufficient to support each of the requisite elements. Specifically, it fails to identify a misstatement of existing fact, or to allege that it was made by the defendant with knowledge as to its falsity at the time that it was made.
The misrepresentation claim (Count VI) makes only two allegations that could be at all construed as relating to these two elements. First, it states that Ballou Channing “failed to disclose its plans for the Foundation’s $ 3 million Gift, which plans were wholly inconsistent with the Foundation’s expressed donative intent and the basis on which Wildlands Trust entered into the Conservation Restriction.” ¶ 89 of Amended Complaint. This is vague at best. Moreover, a failure to disclose can form the basis for liability only if one has a duty to disclose, and the Amended Complaint shows no such duty to disclose anything. Whatever obligation the Foundation had to use the money in a certain way is embodied in the Gift Agreement, but breach of a contractual obligation does not amount to fraud. Second, this count states that Ballou Channing affirmatively misrepresented to the Foundation how much it would cost to maintain and preserve the Premises. This is apparently based the following allegation:
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In 2007 and into 2008, in meetings between the Reeds on behalf of the Foundation, and members of the Cedar Hill Committee of Ballou Channing, including several meetings that occurred in the living room of the Retreat Center, Ballou Channing represented to the Foundation that approximately $ 150,000 per year would be required to preserve and maintain the Premises.
Amended Complaint, ¶ 20. It is questionable whether this yearly estimate as to future expenses is a fact at all as opposed to a nonactionable statement of opinion or prediction as to future events. Moreover, the Amended Complaint fails to allege who made this prediction (except in the most general way) or that the speaker knew that it was false when made. These are allegations critical to support a claim as serious as fraud. In sum, this count fails to meet the standard of either Rule 9(b) or of Iannachino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
D. Remaining Claims
In addition to asking this Court to dismiss those claims which are new to the case, the defendants seek dismissal of those claims that the 2016 Decision left in the case. Specifically, Ballou Channing seeks to dismiss that count alleging a breach of the Gift Agreement on the grounds that there is no writing that satisfies the Statute of Frauds. It makes additional arguments as to the claims for unjust enrichment and promissory estoppel, but these arguments are all fact-based and thus not properly decided on a Rule 12(b) (6) motion. As to the Statute of Frauds, this Court already addressed this issue in its 2016 Decision: although it concluded that the plaintiffs could not rely on the Conservation Restriction to satisfy the Statue of Frauds,3 it was persuaded by plaintiffs that, because discovery might very well turn up writings sufficient to comply with the Statute of Frauds, this issue was best resolved by way of a motion for summary judgment. This Court continues to be of that view.
3 Inexplicably, the plaintiffs continue to argue that the Conservation Restriction is sufficient. Reasserting arguments that have already been rejected by this Court, however, is not only improper but does nothing to advance the case and is a waste of judicial and litigation resources.
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Cedar Hill — the sole defendant on the claim alleging a breach of the Conservation Restriction — separately argues that this Court should narrow that claim to the single violation alleged to have occurred on September 8, 2012. This same issue came up on July 13, 2017 in connection with plaintiffs’ Motion to Compel Discovery and defendants’ Motion for a Protective Order. This Court initially agreed with the defendants, but then reconsidered following oral arguments on the instant motions. As explained in a Memorandum of Decision dated October 17, 2017, this Court is now of the view that Count II is not limited to the September 8, 2012 event but also encompasses activities on the Property following that date.
CONCLUSION AND ORDER
For the foregoing reasons, Ballou Channing’s Motion to Dismiss is ALLOWED as to Count II (breach of Conservation Restriction), Count III (breach of Letter Agreement) and Count VI (intentional misrepresentation). It is DENIED as to Count I (breach of the Gift Agreement) and as to Counts III and IV to the extent that these counts are based on the Gift Agreement. As to Cedar Hill’s Motion to Dismiss, it is ALLOWED as to Counts III through V, so that
Only Count II remains as to Cedar Hill and then only to the extent that Count II is asserted by Wildlands Trust.
_________________________________
Janet L. Sanders
Justice of the Superior Court
Dated: November 10, 2017
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Posted by Stephen Sandberg - December 7, 2017 at 9:30 pm

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