Buffalo Water 1, LLC v. Fidelity Real Estate Company, LLC (Lawyers Weekly No. 12-103-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2017-1584-BLS 2 BUFFALO WATER 1, LLC Plaintiff vs. FIDELITY REAL ESTATE COMPANY, LLC Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS This is an action challenging an independent appraisal of property as provided by an agreement between the parties, two sophisticated entities with experience in owning and leasing real estate. The plaintiff, Buffalo Water 1, LLC (Buffalo) is the owner of the property, located at 7 Water Street in downtown Boston (the Property). The defendant Fidelity Real Estate Company LLC (Fidelity) occupied the Property under a long term lease with an option to purchase the Property in the final year of the lease as set forth in an Option Agreement. The Option Agreement sets the purchase price at 95 percent of the “fair market value” (FMV) or $ 16,275,000, whichever is greater. If the parties could not agree upon the FMV, the Option Agreement set forth the specific appraisal process that the parties were to follow. Fidelity timely exercised its option to purchase and, with the parties unable to agree to the FMV, complied with the appraisal process, which included an independent appraisal. The Verified Complaint attacks the validity of the independent appraisal, contending among other things that the entity that employed the individual appraiser did not disclose a prior business relationship that it had with Fidelity. The case is now before the Court on Fidelity’s Motion to Dismiss. In support, it relies on the Massachusetts common law rule that severely limits the scope of judicial review regarding appraisals contractually authorized by the parties. Pursuant to that rule, the Court may invalidate an appraisal only where the appraiser plainly exceeded the scope of his authority or where the appraisal was the result of “fraud, corruption, dishonesty or bad faith.” Nelson v. Maiorana, 395 Mass. 87, 89 (1985), citing Eliot v. Coulter, 322 Mass. 86, 91 (1947). “The premise of the rule of restricted reviewability is that the contracting parties’ assignment of a valuation to an appraisal embodies their shared desire for finality.” State Room, Inc. v. MA-60 State Assoc., LCC, 84 Mass.App.Ct. 244 249 (2013). Applying that rule to the allegations in the Verified Complaint, this Court agrees with the defendant that the Complaint fails to state a claim upon which relief may be granted. Rule 12(b)(6), Mass.R.Civ. P. The independent appraisal was performed by Robert Skinner. Skinner worked for Cushman & Wakefield (Cushman), which was selected in compliance with the terms of the Option Agreement. The Engagement Letter pursuant to which Cushman was hired stated that the appraisal would be performed in accordance with certain standards, including the Code […]
George, et al. v. National Water Main Cleaning Company, et al. (Lawyers Weekly No. 10-110-17)
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-12191 ROBERT GEORGE & others[1] vs. NATIONAL WATER MAIN CLEANING COMPANY & others.[2] Suffolk. February 14, 2017. – June 26, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Supreme Judicial Court, Certification of questions of law. Massachusetts Wage Act. Labor, Wages, Failure to pay wages, Damages. Damages, Interest. Interest. Judgment, Interest. Practice, Civil, Interest, Judgment, Damages. Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts. Adam J. Shafran (Jonathon D. Friedmann also present) for the plaintiffs. Richard L. Alfred (Dawn Reddy Solowey & Anne S. Bider also present) for the defendants. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Annette Gonthier Kiely, Kathy Jo Cook, Thomas R. Murphy, & Timothy J. Wilton, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. GANTS, C.J. Several employees of National Water Main Cleaning Company filed a class action suit against the company and its parent company, Carylon Corporation, in the Superior Court, alleging, among other claims, nonpayment of wages in violation of the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act). After the case was removed to the United States District Court for the District of Massachusetts, the judge granted final approval of a class settlement agreement that resolved all outstanding issues except one question of law. To resolve that question, the judge certified to this court the following question pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981): “Is statutory interest pursuant to [G. L. c. 231, § 6B or 6C,] available under Massachusetts law when liquidated (treble) damages are awarded pursuant to [G. L. c. 149, § 150]?” In answer to the question, we declare that, under Massachusetts law, statutory prejudgment interest pursuant to G. L. c. 231, § 6H, shall be added by the clerk of court to the amount of lost wages and other benefits awarded as damages pursuant to G. L. c. 149, § 150, but shall not be added to the additional amount of the award arising from the trebling of those damages as liquidated damages.[3] Interpretation of the certified question. Before we answer the certified question, which the judge issued at the joint request of the parties, we must first ascertain its […]
Boston Hearing to Add Public Water Taps on Thursday
How many times have you been around Boston and wanted a simple drink of water, but there wasn’t a water fountain in sight? Boston District 6 City Councilor Matt O’Malley would like to increase tap water access in public places including parks and open spaces. On Thursday, O’Malley will lead a city, neighborhood services and veterans affairs committee hearing about best practices, safety and new technologies of the delivery of tap water. The hearing is at City Hall at 11 a.m. on the 5th floor, and open to the public. “I think this is a no brainer for the city,” said O’Malley, who first called for a hearing last year on the idea. O’Malley said he’d like to have more bubblers, water fountains, water filling stations across the city to reduce the number of single use plastic bottles. Organizations such as the MWRA, DCR and Boston Water Sewer and Commission have been asked to testify at the hearing. So have running clubs such as the Parkway Running Club and the Forest Hills Runners. Health-conscious organizations such as the Boston Public Health Commission and Department of Public Health have also been invited to speak. O’Malley has also invited vendors such as Tapit to speak at the hearing. O’Malley said he’d like to see newly designed “tap station” that allow people to re-use their own containers in a clean and sanitary way. “We’re going to discuss the feasibility… and see where it would make sense to implement around the city,” said O’Malley. “And I want to see a pilot program soon.” SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch