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 […]
Skawski, et al. v. Greenfield Investors Property Development LLC (Lawyers Weekly No. 10-017-16)
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 SJC-11926 MICHAEL SKAWSKI & others[1] vs. GREENFIELD INVESTORS PROPERTY DEVELOPMENT LLC. Hampden. January 7, 2016. – February 11, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Jurisdiction, Land Court, Housing Court. Land Court, Jurisdiction. Housing Court, Jurisdiction. Statute, Construction, Repeal. Civil action commenced in the Hampden Division of the Housing Court Department on June 7, 2011. A motion to dismiss was heard by Dina E. Fein, J., and the ruling was reported by her. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas Lesser (Michael E. Aleo with him) for the plaintiffs. Marshall D. Senterfitt (David S. Weiss with him) for the defendant. Isaac J. Mass, for Citizens for Growth, amicus curiae, submitted a brief. Ashley Grant, for Massachusetts Fair Housing Center, amicus curiae, submitted a brief. GANTS, C.J. On August 2, 2006, the Legislature enacted G. L. c. 185, § 3A, which established the permit session of the Land Court department and provided that “[t]he permit session shall have original jurisdiction, concurrently with the superior court department,” over civil actions adjudicating the grant or denial of permits for “the use or development of real property” where “the underlying project or development involves either [twenty-five] or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area.” St. 2006, c. 205, § 15. At the time § 3A was enacted, G. L. c. 40A, § 17, authorized “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority” to appeal to the Land Court, the Superior Court, the Housing Court, or the District Court.[2] The issue before us is whether the Legislature, by enacting G. L. c. 185, § 3A, intended to grant exclusive subject matter jurisdiction to the permit session of the Land Court and to the Superior Court to hear this subset of major development permit appeals, or intended simply to create a permit session in the Land Court to hear these cases without eliminating the subject matter jurisdiction of the Housing Court to adjudicate this subset of appeals. We conclude that the Legislature intended that major development permit appeals should be adjudicated only in the permit session of the Land Court or in the Superior Court. We […]
Categories: News Tags: 1001716, Development, Greenfield, Investors, Lawyers, Property, Skawski, Weekly
Buccaneer Development, Inc. v. Zoning Board of Review of Appeals of Lenox (Lawyers Weekly No. 11-105-15)
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 14-P-855 Appeals Court BUCCANEER DEVELOPMENT, INC. vs. ZONING BOARD OF APPEALS OF LENOX. No. 14-P-855. Suffolk. April 8, 2015. – August 11, 2015. Present: Berry, Milkey, & Massing, JJ. Zoning, Special permit, Board of appeals: decision. Civil action commenced in the Land Court Department on January 9, 2008. After review by this court, 83 Mass. App. Ct. 40 (2012), the case was heard by Dina E. Fein, J., sitting by designation, on a case stated. Brett D. Lampiasi for the plaintiff. Jeremia A. Pollard for the defendant. MASSING, J. In denying the plaintiff developer’s request for a special permit to build a residential retirement community, the defendant zoning board of appeals of Lenox (board) was frank: “In general, Board members agreed that the proposed project was simply too dense and too out-of-character with its surroundings.” A judge of the Housing Court, sitting by designation in the permit session of the Land Court, reviewed the board’s decision under G. L. c. 40A, § 17, and after a bench trial, including a view of the project site, affirmed the denial of the special permit. We affirm. Background. The plaintiff, Buccaneer Development, Inc. (Buccaneer), seeks to build a residential retirement community for individuals fifty-five years of age and older, consisting of twenty-three single-family townhouses on twenty-three acres of land in the town of Lenox (town). The parcel, which is located on East Street in a residential zoning district, is adjacent to sixty-eight acres of protected open space to the north and northeast. It is situated between four single-family homes to the west, on lots ranging from .49 to 2.75 acres, and a 1950s era cul-de-sac development to the east, of seventeen modest single family homes on a total of 8.2 acres. To the south lies the Cranwell resort and associated properties, including a golf course, mansions, ten condominium units on one-acre lots, and a housing development of thirty-seven units on twenty-one acres. The public high school is located approximately eight-tenths mile north on East Street. On June 22, 2007, Buccaneer submitted an application for a special permit to the board.[1] After a series of public hearings, the board voted 5-0 to deny the application on December 12, 2007, and its decision was filed on December 28, 2007. The decision records the board members’ reasons […]
Skawski, et al. v. Greenfield Investors Property Development, LLC (Lawyers Weekly No. 11-018-15)
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-1947 Appeals Court MICHAEL SKAWSKI & others[1] vs. GREENFIELD INVESTORS PROPERTY DEVELOPMENT, LLC.[2] No. 13-P-1947. February 27, 2015. Jurisdiction, Land Court, Housing Court. Land Court, Jurisdiction. Housing Court, Jurisdiction. Upon a joint motion by the defendant, Greenfield Investors Property Development, LLC (Property Development), and the plaintiffs (abutters), a judge of the Western Division of the Housing Court Department reported, for further review and determination pursuant to Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996), her order denying Property Development’s motion to dismiss. Property Development challenges the Housing Court’s jurisdiction over the abutters’ claim. Relying on our holding in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40 (2012) (Buccaneer), Property Development argues that with the enactment of G. L. c. 185, § 3A, establishing an expedited permit session in the Land Court for large-scale development projects and grant of concurrent jurisdiction to the Superior Court,[3] the Legislature divested the Housing Court of jurisdiction over such matters. It asserts, therefore, that the judge erred in denying its motion to dismiss the abutters’ claim for lack of subject matter jurisdiction. We agree and reverse the order denying Property Development’s motion to dismiss. Background. The planning board of Greenfield issued a special permit approving Property Development’s plan to develop a 135,000-square-foot retail facility within the town of Greenfield.[4] The abutters filed an appeal pursuant to G. L. c. 40A, § 17, in the Western Division of the Housing Court Department, challenging the issuance of a special permit to Property Development. Property Development and its codefendants (see note 2, supra) subsequently filed a joint motion with the Chief Justice for Administration and Management of the Trial Court (CJAM)[5] to have the matter transferred pursuant to G. L. c. 185, § 3A, to the permit session of the Land Court. The abutters opposed the transfer. The CJAM denied the motion, and litigation proceeded in the Western Division of the Housing Court Department. Following our decision in Buccaneer, supra, Property Development moved to dismiss the abutters’ action, asserting that the Housing Court lacked subject matter jurisdiction over the action. The Housing Court judge denied Property Development’s motion to dismiss and conditioned that denial upon approval from the Chief Justice of the Housing Court Department to transfer the matter to the Superior Court. To obtain that approval, the judge sent a letter requesting that the case “be […]
Categories: News Tags: 1101815, Development, Greenfield, Investors, Lawyers, Property, Skawski, Weekly
Karatihy v. Commonwealth Flats Development Corp. (Lawyers Weekly No. 11-114-13)
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 12‑P‑1353 Appeals Court RACHID KARATIHY vs. COMMONWEALTH FLATS DEVELOPMENT CORP.[1] No. 12‑P‑1353. Suffolk. June 4, 2013. ‑ September 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Employment, Termination, Retaliation. Practice, Civil, Prima facie case. Civil action commenced in the Superior Court Department on November 24, 2009. The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion to reconsider was considered by her. Scott Adams for the plaintiff. Andrew C. Pickett (Kevin M. Sibbernsen with him) for the defendant. CYPHER, J. A Superior Court judge granted summary judgment in favor of Commonwealth Flats Development Corp., doing business as Seaport Hotel and World Trade Center (hotel), after Rachid Karatihy filed a complaint alleging retaliation by the hotel. Karatihy alleged that the hotel terminated him in retaliation for being a named plaintiff in a lawsuit claiming the hotel violated G. L. c. 149, §§ 148 & 150 (Wage Act), and c. 149, § 152A (Tips Act). The judge ruled in favor of the hotel because Karatihy did not meet his burden on causation, and thus would be unable at trial to prove an essential element of the retaliation claim. Karatihy maintains that there are disputes of material fact and there was sufficient evidence for a jury to find a causal connection and pretext for his termination, and therefore summary judgment was not proper. We disagree and affirm summary judgment for the hotel. Background. We summarize the facts in the light most favorable to the nonmoving party, Karatihy, reserving some facts for later discussion. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96 (2006). Karatihy worked as a banquet server at the hotel from 2000 until his termination in 2009. As a server, his duties included setting up for events and serving food and beverages. Because attendance is imperative to the job and efficiency is key in serving its customers, the hotel implemented an attendance policy. Employees are required to “call-out” and notify the hotel at least four hours in advance if they will be late or will miss a shift so the hotel can find a replacement. All of the “call-outs” are recorded and tracked for each employee. The attendance policy also placed limits on the number of allowable absences in a given period. This attendance […]
Categories: News Tags: 1111413, Commonwealth, Corp., Development, Flats, Karatihy, Lawyers, Weekly
Week in Review: St. George Street Development Concerns
The following were the top articles on South End Patch from July 8 to July 12, 2013: Graybar Electric Building to Become Apa South End Patch News
Police Have ‘Major Development’ in Boston Strangler Case
Posted by Bret SilverbergIt’s been 49 years since the homicide of Mary Sullivan, but police say they have a “major development” regarding South End Patch News
Meeting to Discuss St. George St. Development Wednesday Night
What was once the long-vacant Bethel Tabernacle Pentecostal Church on St. George Street – known fondly by some locals as the “Jesus Saves Church” – was torn down in 2011, supposedly to make way for condominiums. But
Neighborhood Concerns over Development Changes on St. George Street
What was once the long-vacant Bethel Tabernacle Pentecostal Church on St. George Street – known fondly by some locals as the “Jesus Saves Church” – was torn down in 2011, supposedly to make way for condominiums. But neighbors were surprised t South End Patch News
Categories: Arrests Tags: Changes, Concerns, Development, George, Neighborhood, Over, Street