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SJC-13405
COLUMBIA PLAZA ASSOCIATES vs. NORTHEASTERN UNIVERSITY.
Suffolk. October 2, 2023. - February 29, 2024.
Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.1
"Anti-SLAPP" Statute. Redevelopment Authority. Practice, Civil, Motion to dismiss, Summary judgment, Retroactivity of judicial holding, Fraud, Attorney's fees. Contract, Construction contract, Performance and breach, Implied covenant of good faith and fair dealing, Unjust enrichment, Promissory estoppel. Constitutional Law, Right to petition government. Unlawful Interference. Unjust Enrichment. Declaratory Relief. Consumer Protection Act, Unfair or deceptive act. Fraud. Frauds, Statute of.
Civil action commenced in the Superior Court Department on December 15, 2020.
A special motion to dismiss or, in the alternative, a motion to dismiss and a motion for summary judgment were heard by Rosemary Connolly, J.; a motion for attorney's fees was heard by Jackie A. Cowin, J., and entry of judgment was ordered by her.
The Supreme Judicial Court granted an application for direct appellate review.
1 Justice Lowy participated in the deliberation on this case prior to his retirement. 2
Henry F. Owens, III (Richard K. Latimer & Robert Patrick Cooper also present) for the plaintiff. Daryl J. Lapp (Elizabeth H. Kelly also present) for the defendant. The following submitted briefs for amici curiae: Robert S. Mantell, Audrey Richardson, & Emma Hornsby for Massachusetts Employment Lawyers Association & others. Robert C. Ross for NAIOP Massachusetts, Inc. Jeffrey J. Pyle for New England First Amendment Coalition. Mark S. Furman & Emily C. Shanahan for JACE Boston, LLC, & another. Ruth A. Bourquin for American Civil Liberties Union of Massachusetts, Inc.
KAFKER, J. This case is before us after a judge in the
Superior Court allowed Northeastern University's
(Northeastern's) special motion to dismiss various claims,
pursuant to G. L. c. 231, § 59H, and otherwise dismissed or
entered summary judgment in favor of Northeastern on the
plaintiff's remaining claims arising out of plans to develop a
disputed parcel of land. We conclude that all the claims were
properly dismissed. We also analyze the judge's ruling on the
special motion to dismiss using a revised framework for
assessing such motions under § 59H, known more commonly as the
anti-SLAPP statute. That revised framework, and the reasons
necessitating such revision, have been set out in detail in a
companion opinion issued today. See Bristol Asphalt Co. v.
Rochester Bituminous Prods., Inc., 493 Mass. (2024) (Bristol
Asphalt). Applying this framework, and upon consideration of
the remaining issues before us on appeal, we affirm. 3
1. Background. a. Facts.2 i. Linkage program. In the
late 1980s, the city of Boston (city), through the Boston
Redevelopment Authority (BRA), created a "Parcel-to-Parcel
Linkage Program" (linkage program) to develop land in its
Roxbury section. The linkage program sought to promote urban
revitalization and to increase opportunities for minority
participation in development by "linking" two parcels of
property -- i.e., development of a profitable downtown property
was linked to the development of property in Roxbury considered
to be less commercially attractive. A development team, with a
required minority partner, was to be selected by the BRA. An
area identified for development in Roxbury, designated as parcel
18 and consisting of five subparcels (18-1A, 18-1B, 18-2, 18-3A,
and 18-3B), is at the heart of the instant dispute.
ii. 1991 agreement and foreclosure. The plaintiff,
Columbia Plaza Associates (CPA), was formed for the purpose of
participating in the linkage program and developing parcel 18.
In 1991, CPA entered into a sale and construction agreement with
2 On appeal from a grant of a special motion to dismiss, we state the facts as set forth in the pleadings and affidavits before the trial court. See North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 854 & n.5 (2009). Here, because the plaintiff moved for summary judgment in response to the defendant's special motion to dismiss, and the court considered all the parties' pleadings and documentary evidence in ruling on both the special motion to dismiss and the motions for summary judgment, we do the same on appeal. 4
the BRA (1991 agreement) in which the BRA agreed to sell and CPA
agreed to buy parcel 18 or certain subparcels thereof as
designated by CPA and approved by the BRA, and CPA agreed to
develop the land according to a master development plan approved
by the BRA and the city's zoning commission.3 Specifically,
under the 1991 agreement, CPA was to inform the BRA of its
desire to develop and purchase a particular subparcel. After
providing notice, CPA was then supposed to "proceed in good
faith and with all reasonable efforts" to satisfy the various
conditions imposed on the sale and development under the 1991
agreement, including submission and approval of a development
plan.
Under the 1991 agreement, CPA was allowed to mortgage the
subparcels to secure debt related to their acquisition and
development. A party acquiring parcel 18 in foreclosure was
limited to the three following options: (1) complete
construction on the subparcels in compliance with the
requirements of the 1991 agreement, (2) sell title to the
subparcels to a purchaser who would assume all "covenants,
agreements and obligations of [CPA]" under the 1991 agreement,
CPA formed a joint venture with another entity for the 3
purpose of developing the subparcels. CPA is the successor in interest to this joint venture, and for simplicity, we shall refer to actions or obligations undertaken by the joint venture as being undertaken by CPA. 5
or (3) reconvey fee simple title to the subparcels to the BRA.
CPA obtained a mortgage on parcel 18 and built an office
building on subparcel 18-1B. For a short time, this building
housed the registry of motor vehicles. However, by the mid-
1990s, the registry had vacated this location and the building
was condemned. CPA's mortgage was foreclosed upon, and an
affiliate of CPA's lender acquired parcel 18 in a foreclosure
sale. Northeastern subsequently purchased the land from this
affiliate in November 1997. The quitclaim deed conveying parcel
18 to Northeastern also conveyed the affiliate's "rights arising
under [the 1991 agreement], between [the BRA] and [CPA]," and
provided that Northeastern would "assume the obligations set
forth in [the 1991 agreement]."
iii. 1999 agreement. On June 30, 1999, the BRA, CPA, and
Northeastern executed a "Second Amended and Restated Sale and
Construction Agreement" (1999 agreement). The 1999 agreement
expressly rendered the 1991 agreement "null and void and of no
further force and effect." The 1999 agreement also stated that
Northeastern intended "individually and/or through an affiliated
entity of Northeastern meeting the definition of 'Developer'" to
develop parcel 18. The 1999 agreement defined "Developer" to
mean "Northeastern or an affiliated entity of Northeastern,
specifically including coventures with CPA, designated by
Northeastern to develop the applicable phase." The subparcels, 6
referred to as "Phase Parcels," were designated for separate
development from one another, with subparcel 18-2 selected for
the construction of a parking garage (garage parcel), and the
remaining subparcels intended for the construction of buildings.
Additionally, the parties agreed in 1999 to enter into a
joint venture to acquire the garage parcel (second 1999
agreement). The second 1999 agreement also contained a
provision whereby the parties agreed to enter into a joint
venture agreement to develop a new building on subparcel 18-3A.
Any such joint venture agreement was to be executed by the
parties no later than six months after the closing date of the
second 1999 agreement or a later date if the parties mutually
agreed on an extension. However, the parties never executed any
such joint venture agreement within the six-month period and did
not agree to extend the deadline.
iv. 2007 development plan. Over the next six years
following the 1999 agreement, the parties explored the
possibility of developing together a hotel on subparcel 18-3A,
including hiring an outside firm to assess its economic
feasibility. However, the parties never entered into any formal
agreement and, in 2007, Northeastern, in consultation with CPA
and the BRA, abandoned plans to develop a hotel or other
commercial building on subparcel 18-3A. CPA agreed to the
removal of subparcels 18-3A and 18-3B from the development plans 7
so that Northeastern could build a dormitory on those
subparcels. In turn, Northeastern agreed to seek to develop a
hotel on subparcel 18-1A "in partnership" with CPA. Thereafter,
Northeastern and the BRA executed a new development plan (2007
development plan). The 2007 development plan stated that
"Northeastern University in partnership with [CPA] . . . intends
to proceed with construction on [subparcel 18-1A] (currently
anticipated for use as a hotel)." The 2007 development plan
also formalized the removal of subparcels 18-3A and 18-3B from
the master development plan and the linkage program.
Between 2006 and 2008, the parties discussed development of
a hotel on subparcel 18-1A. After several months of silence
from CPA in 2008, Northeastern sent a letter to CPA on March 26,
2008, seeking to reinitiate discussions. CPA responded on April
2, 2008, stating that it intended to review the appropriate
documents in order to foster an "informed dialogue." On May 14,
2008, Northeastern sent a letter to follow up with CPA, noting
that while CPA's previous correspondence had indicated readiness
to discuss the project in "two to three weeks," CPA had yet to
respond to Northeastern's request to meet, and that, "despite
repeated attempts," Northeastern had had "no substantive
discussions" with anyone from CPA in the preceding five months.
Nearly one year later, in March 2009, Northeastern
communicated to CPA that while the economic situation had 8
deteriorated, raising concerns about the financial viability of
the hotel project, Northeastern remained "dedicated to following
through on its commitment to . . . proceed with the development
of a hotel on Parcel 18." Northeastern also noted the
possibility of obtaining funding for the hotel project and
requested a meeting to discuss financing. Afterward,
communications between Northeastern and CPA fell silent.
v. Subsequent court proceedings. In 2013, CPA filed suit
against Northeastern, raising various contractual and other
claims arising out of allegations that Northeastern was
contractually required to work with CPA in any development of
subparcels 18-3A and 18-3B and that Northeastern's decision to
build a dormitory on those parcels wrongfully deprived CPA of
its development rights (2013 litigation). CPA asserted that
Northeastern had concealed its intentions and falsely
represented to the BRA that it remained in partnership with CPA
in order to obtain the necessary BRA approvals for construction
of the dormitory. After a trial, a judge in the Superior Court
entered judgment for Northeastern. On appeal, the Appeals Court
affirmed the decision of the trial judge, and this court denied
CPA's application for further appellate review. See Columbia
Plaza Assocs. v. Northeastern Univ., 93 Mass. App. Ct. 1113
(2018). 9
On May 9, 2017, CPA sent a letter to the BRA's successor,
the Boston Planning and Development Administration (BPDA),
demanding that it "compel Northeastern to present CPA with a
joint venture for [subparcel 18-1A, i.e., the proposed hotel
project], to provide a significant return to CPA, as
Northeastern . . . clearly will not do [so] on its own
initiative." On May 25, 2017, Northeastern sent a letter to the
BPDA denying CPA's claims. Northeastern asserted that it owned
all of parcel 18, including "all of the development rights" and
that CPA did not own any "development rights in Parcel 18 or any
of its sub-parcels." In support, Northeastern pointed to the
trial judge's decision in the 2013 litigation, arguing that she
had ruled that "CPA does not have -- and never had -- any actual
'development rights' in relation to" subparcel 18-3A or 18-1A.
In June 2019, CPA contacted Northeastern about developing a
hotel on subparcel 18-1A, but Northeastern rejected CPA's
outreach, again claiming CPA had no interest of any kind in
subparcel 18-1A. In November 2019, Northeastern notified the
BPDA of its intent to develop subparcel 18-1A for its own use.
b. Procedural history. In December 2020, CPA commenced
the instant suit against Northeastern, alleging breach of
contract (counts I and II), breach of the implied covenant of
good faith and fair dealing (count III), interference with
advantageous economic relations (count IV), unjust enrichment 10
(count V), commercial fraud (count VI), and unfair or deceptive
acts in violation of G. L. c. 93A, § 11 (counts VII and VIII),
and seeking declaratory and injunctive relief (counts IX and X,
respectively). Northeastern filed a special motion to dismiss
pursuant to G. L. c. 231, § 59H, or, in the alternative, a
motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass.
754 (1974). CPA in turn moved for partial summary judgment on
counts I, II, III, VII, and VIII. A judge in the Superior Court
(motion judge) allowed Northeastern's special motion to dismiss
under § 59H, with respect to CPA's claims of fraud, as well as
CPA's claims of unfair or deceptive acts in violation of G. L.
c. 93A, § 11, insofar as those counts were based on allegations
of misrepresentations by Northeastern to the BPDA. The motion
judge denied the special motion to dismiss as to all remaining
counts, but allowed Northeastern's motion to dismiss, pursuant
to rule 12 (b) (6), as to CPA's claims for interference with
advantageous economic relations, unjust enrichment, declaratory
judgment, and injunctive relief. The motion judge granted
summary judgment in favor of Northeastern on all remaining
claims.4 CPA appealed, and we accepted this case on direct
appellate review.
4 In its opposition to CPA's motion for partial summary judgment, Northeastern requested that the court enter summary judgment in favor of Northeastern on the counts at issue. With 11
2. Special motion to dismiss. a. Simplified anti-SLAPP
framework. In Bristol Asphalt, 493 Mass. at , also issued
today, we have simplified and clarified the existing framework
for assessing special motions to dismiss filed under G. L.
c. 231, § 59H, the so-called anti-SLAPP statute, and explained
in detail our reasons for doing so.
Under the first stage of this revised framework, the
special motion proponent has a threshold burden to show that the
challenged claim is based solely on the proponent's exercise of
its right to petition, with no "substantial basis other than or
in addition to the petitioning activities implicated."
Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167
(1998). As we clarify today in Bristol Asphalt, 493 Mass.
at , we no longer parse the factual basis for a claim to
determine if some portion of the claim could independently
support the asserted cause of action, so as to permit partial
dismissal of the claim under Blanchard v. Steward Carney Hosp.,
Inc., 477 Mass. 141, 155-156 (2017) (Blanchard I), S.C., 483
Mass. 200 (2019). Rather, if the special motion proponent
cannot demonstrate that the claim is based solely on the
the parties' agreement, the motion judge ruled on these counts using a summary judgment standard. 12
proponent's own petitioning activity, the special motion must be
denied.5
If, however, the claim is based solely on the special
motion proponent's petitioning activity, the burden shifts to
the special motion opponent. See G. L. c. 231, § 59H, first
par. To defeat the motion at this second stage, the special
motion opponent must show by a preponderance of the evidence
that the special motion proponent's petitioning activity (1) was
devoid of any reasonable factual support or any arguable legal
basis; and (2) caused the special motion opponent actual injury.
See id. If the special motion opponent makes both showings, the
special motion is denied. Otherwise, the special motion is
allowed.
As we explain in Bristol Asphalt, 493 Mass. at , we
abandon the "second path" for defeating the special motion,
which allowed a special motion opponent to prevail by
demonstrating that its claims were "colorable" and had not been
raised for the primary purpose of chilling the special motion
proponent's legitimate petitioning activity. See Blanchard I,
477 Mass. at 159-161. Additionally, as we also clarify in our
This revision to the existing anti-SLAPP framework is 5
particularly relevant in the instant case as the motion judge employed such analysis to dismiss the portion of the G. L. c. 93A claims that were based solely on petitioning activity. 13
companion opinion, a ruling on a special motion to dismiss is
subject to de novo review on appeal.
b. Applicability of simplified anti-SLAPP framework to
instant case. As an initial matter, we address whether the
simplified anti-SLAPP framework that we set forth today applies
to the instant case. When this court construes a statute, our
holding is presumptively given retroactive application, although
we retain discretion to apply the rule prospectively in limited
circumstances. See McIntire, petitioner, 458 Mass. 257, 261
(2010), cert. denied, 563 U.S. 1012 (2011) ("Where a decision
does not announce new common-law rules or rights but rather
construes a statute, no analysis of retroactive or prospective
effect is required because at issue is the meaning of the
statute since its enactment"); Mouradian v. General Elec. Co.,
23 Mass. App. Ct. 538, 542 n.3 (1987), quoting 1 K.C. Davis,
Administrative Law Treatise § 5.09 (1958) (Davis) ("If an
interpretative rule is merely an interpretation of a statute,
and if the meaning of the statute has been there from the time
of its original enactment, then no problem of a retroactive
interpretative rule can arise, for either the interpretative
rule expresses the true meaning of the statute or it does not;
if it does, then that is what the statute has always meant and
the rule has not changed the law"). See also Eaton v. Federal
Nat'l Mtge. Ass'n, 462 Mass. 569, 587-588 (2012) (explaining 14
presumption of retroactive application, with prospective-only
application being reserved for exceptional circumstances).
Our holding today is intended to "give effect to the clear
meaning of a statute," a meaning that has not changed for these
purposes since its original enactment. Dellorusso v. PNC Bank,
N.A., 98 Mass. App. Ct. 84, 87 (2020). See Davis, supra. This
"purpose is best accomplished through retroactive application."
Dellorusso, supra at 87-88. In today's decision, we also return
to the framework that governed special motions to dismiss for
twenty years, until our holding in Blanchard I. Thus we are
returning to an earlier interpretation, rather than developing a
brand new one, limiting any possible disruptive effect of
imposing the change at issue. Accordingly, the simplifications
to our existing anti-SLAPP framework, set forth in Bristol
Asphalt, 493 Mass. at , also issued today, are applicable to
cases in which an anti-SLAPP motion or appeal remains pending as
of this court's issuance of the rescript in Bristol Asphalt.
i. Stage one: Northeastern's threshold burden. Applying
the simplified anti-SLAPP framework, Northeastern had a
threshold burden to show that the claims at issue were based
solely on Northeastern's exercise of its right of petition, as
defined in G. L. c. 231, § 59H. Northeastern contended that all
of CPA's claims were based solely on Northeastern petitioning
the BPDA to unilaterally develop subparcel 18-1A. However, the 15
alleged factual basis for most of CPA's claims was not solely
Northeastern's petitioning of the BPDA, but the existence of
contractual agreements between the parties. That is, the
alleged conduct that gave rise to CPA's claims sounding in
contract was Northeastern's decision to enter into agreements
with CPA, and then act in violation of CPA's alleged rights
under those agreements. See Duracraft Corp., 427 Mass. at 165
("Many preexisting legal relationships may properly limit a
party's right to petition, including enforceable contracts in
which parties waive rights to otherwise legitimate
petitioning"). Accordingly, the motion judge properly found
that Northeastern failed to meet its threshold burden as to the
claims for breach of contract (counts I and II), breach of the
implied covenant of good faith and fair dealing (count III),
interference with advantageous economic relations (count IV),
unjust enrichment (count V), and declaratory and injunctive
relief (counts IX and X), as each of these claims was based on
preexisting contractual agreements, not solely communications
with the BPDA. See id. at 168 (nondisclosure agreement
constituted substantial basis other than defendant's petitioning
activity to support breach of contract claims).
The motion judge, however, distinguished CPA's claims for
unfair or deceptive acts in violation of G. L. c. 93A, § 11,
which are based upon both the allegation that Northeastern 16
petitioned the BPDA in violation of CPA's alleged contractual
rights, as well as the allegation that Northeastern
"misrepresent[ed] to the BPDA that CPA's rights on [subparcel]
18-1A were extinguished." The motion judge analyzed the c. 93A
claims under each theory of liability, in order to determine
whether a portion of either claim was based solely on
Northeastern's petitioning activity, in accord with the
augmented framework set forth in Blanchard I, 477 Mass. at 143
(holding that defendant may meet threshold burden as to portion
of claim that is based solely on petitioning activity).
Applying this augmented framework, the motion judge
determined that Northeastern was entitled to dismissal of these
claims in part. However, under the simplified anti-SLAPP
framework we adopt today, such parsing analysis is not
appropriate. Because a substantial factual basis for the c. 93A
claims was the allegation that Northeastern acted in violation
of its contractual agreements with CPA, Northeastern failed to
meet its threshold burden of showing that these claims are based
solely on its petitioning activity. Accordingly, the special
motion to dismiss should have been denied as to both c. 93A
claims.6
6 Although we do not join in the conclusion reached by the motion judge that Northeastern was entitled to dismissal under G. L. c. 231, § 59H, as to a portion of the c. 93A claims, we 17
Finally, we address CPA's remaining claim for "commercial
fraud." Unlike the counts described above, this claim appears
to be based entirely on the allegation that Northeastern
"false[ly] represent[ed] to the BPDA that a Superior Court judge
found that CPA has no remaining development rights on Parcel
18," in reference to the outcome of the 2013 litigation
concerning subparcel 18-3A. Because this allegation relied on a
written statement that Northeastern submitted to a governmental
agency, the BPDA, it constituted petitioning activity. See
G. L. c. 231, § 59H, sixth par. (defining petitioning activity
to include "any written or oral statement made before or
submitted to a legislative, executive, or judicial body, or any
other governmental proceeding"). See also North Am. Expositions
Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862 (2009), and
cases cited (statements made to governmental bodies need not be
made within context of formal government proceedings to
constitute petitioning activity). Thus, Northeastern met its
threshold burden, as the special motion proponent, with respect
to count VI of CPA's complaint.
ii. Stage two: CPA's burden. For count VI, the burden
then shifted to CPA, the party opposing the special motion, to
show that Northeastern's petitioning activity (1) was devoid of
nonetheless affirm the entry of judgment in favor of Northeastern on these claims, for reasons detailed infra. 18
any reasonable factual support or any arguable legal basis; and
(2) caused CPA actual injury. See G. L. c. 231, § 59H. Here,
CPA focused on a passage toward the end of Northeastern's
letter, which, after summarizing the 2013 litigation, stated
that, "as the Superior Court has ruled, CPA does not have -- and
never had -- any actual 'development rights' in relation to
[subparcel] 18-3A or 18-1A."
Far from being "devoid" of reasonable support,
Northeastern's statement was squarely supported by the judge's
ruling in the 2013 litigation. Although the 2013 litigation
concerned whether CPA's "rights" to parcel 18 had been
extinguished in subparcel 18-3A specifically, and not 18-1A, the
judge defined the nature of CPA's "rights" as follows: "they
were not much better than a fishing license: they essentially
gave CPA the opportunity to become a developer on a project
provided that it met the BRA's rigorous prerequisites, which
included a demonstration that it had a specific and economically
feasible development plan" (emphasis in original).
Northeastern's letter stated that CPA did not have "any actual
'development rights'" to subparcel 18-1A because its "rights"
amounted to no more than an opportunity to participate as a
developer in the event that certain prerequisites were met,
effectively paraphrasing the above-quoted language from the 19
judge's decision. Accordingly, we affirm the allowance of the
special motion to dismiss count VI of CPA's complaint.
3. Adjudication of remaining claims. The motion judge
disposed of CPA's remaining claims by ruling on Northeastern's
motion to dismiss for failure to state a claim and the parties'
cross motions for summary judgment. On appeal, both types of
motions are subject to de novo review. See Santos v. U.S. Bank
Nat'l Ass'n, 89 Mass. App. Ct. 687, 691 (2016). Where, as here,
both parties have moved for summary judgment, see note 4, supra,
we view the evidence in the light most favorable to the party
against whom judgment was entered -- here, CPA -- to determine
whether all material facts have been established such that the
moving party is entitled to judgment as a matter of law. Twomey
v. Middleborough, 468 Mass. 260, 267 (2014). See Abrahamson v.
Estate of LeBold, 89 Mass. App. Ct. 223, 225 (2016) (applying
standard of review applicable to summary judgment where motion
to dismiss was converted to motion for summary judgment).
a. Count I -- breach of 1999 agreement. CPA's first
breach of contract claim is based upon its contention that
Northeastern committed a breach of the 1999 agreement by
rejecting CPA's request to develop subparcel 18-1A in June 2019
and notifying the BPDA of Northeastern's intent to develop that
subparcel for its sole institutional use. We review the record
in the light most favorable to CPA. That record nonetheless 20
reveals that after the 1999 agreement, CPA lost development
rights in all the subparcels, except for the right to develop
the garage parcel.
To prevail on a claim for breach of contract, a plaintiff
is required to demonstrate that "there was an agreement between
the parties; the agreement was supported by consideration; the
plaintiff was ready, willing, and able to perform his or her
part of the contract; the defendant committed a breach of the
contract; and the plaintiff suffered harm as a result." Bulwer
v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016). To determine
the intent of contracting parties, we consider the "words used
by the parties, the agreement taken as a whole and the
surrounding facts and circumstances." MCI WorldCom
Communications, Inc. v. Department of Telecomm. & Energy, 442
Mass. 103, 112 (2004). If the words of a contract are clear,
they are dispositive as to the meaning of the contract. See
EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016).
Section 102(r) of the 1999 agreement states that "for every
Phase, the Developer shall be Northeastern or an affiliated
entity of Northeastern, specifically including coventures with
CPA, designated by Northeastern to develop the applicable Phase
. . . . It is hereby agreed that the Developer of the Garage
Parcel shall be the Northeastern/CPA Venture." While this
language provides CPA with the right to develop the garage 21
parcel with Northeastern, it does not grant CPA development
rights in any of the other subparcels. Rather, the 1999
agreement specifies that Northeastern "shall be" the developer
for every subparcel and that Northeastern may designate an
affiliated entity, specifically including CPA, as a developer
for the other subparcels.
If the parties intended to make CPA a codeveloper for every
subparcel, the language in § 102(r) allowing Northeastern to
"designate" CPA as a developer and agreeing that Northeastern
and CPA "shall be" the garage parcel developers would be
superfluous. Gibraltar Fin. Corp. v. Lumbermens Mut. Cas. Co.,
400 Mass. 870, 872 (1987) ("It is a standard rule of
construction that interpretations which result in meaningless
words are to be avoided").
Moreover, the 1999 agreement extinguished any remaining
rights in parcel 18 that CPA might have had under the 1991
agreement. Section 101 of the 1999 agreement states that the
1991 agreement is "null and void and of no further force and
effect." The intent of § 101 is unambiguous: the 1991
agreement is no longer in force and the parties' rights and
obligations are now governed by the 1999 agreement.
CPA nonetheless argues that language in the preamble
reveals an intent to amend and restate the 1991 agreement, thus
incorporating CPA's development rights under the 1991 agreement 22
into the 1999 agreement: "the [BRA], Northeastern and CPA wish
to further amend and restate the terms of the Original Sale
Agreement and Original Amended Sale Agreement as set forth
herein." While recitals may assist us in interpreting the body
of the 1999 agreement, they do not create enforceable rights in
and of themselves. See Cullinet Software, Inc. v. McCormack &
Dodge Corp., 400 Mass. 775, 776 n.1 (1987). Here, the general
language contained in the preamble is undercut by the more
specific statement in § 101 that the 1991 agreement is null and
void.
CPA also posits that § 302 of the 1999 agreement gave it
veto rights over development on all of parcel 18. Section 302
refers to the "Master Plan and the . . . Development Plan for
each Phase [(i.e., the development plans for each subparcel)],
as they may be amended and revised by the agreement of the
parties thereto." CPA reads this as requiring that Northeastern
obtain agreement of all the parties to the 1999 agreement (i.e.,
both CPA and the BRA) before making changes to the development
plans for any of the subparcels. Thus, CPA would have a veto
right over the development of subparcel 18-1A, even if the 1999
agreement extinguished its development rights. A more sensible
reading is that Northeastern must get agreement from the parties
to each individual development plan for any modifications to
that development plan. As CPA was only designated as a 23
"Developer" for the garage parcel, Northeastern only needed
CPA's permission to make changes to the development plan for the
garage parcel. CPA's position is further undermined by the fact
that the 1999 agreement reserves Northeastern's right to amend
the master development plan and submit a new development plan,
subject to approval by the BRA and the city's zoning commission.
Nowhere in this section is CPA's approval required or discussed.
"[A]n unambiguous agreement must be enforced according to
its terms." Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703,
706 (1992). By its terms, the 1999 agreement states that (1)
the 1991 agreement, including any development rights conferred
to CPA, was rendered "null and void," and (2) except for the
garage parcel, CPA did not have any development rights in parcel
18. Therefore, Northeastern did not commit a breach of the 1999
agreement by seeking to unilaterally develop subparcel 18-1A and
the Superior Court correctly granted summary judgment on count I
in Northeastern's favor.
b. Count II -- breach of 2007 agreement. CPA's second
breach of contract claim centers around its assertion that
Northeastern's attempt to unilaterally develop subparcel 18-1A
violated an unwritten agreement between the parties in 2007
(2007 agreement), in which CPA surrendered its rights in
subparcels 18-3A and 18-3B in exchange for development rights on
subparcel 18-1A. CPA appears to find proof of the 2007 24
agreement in the 2007 development plan, in which Northeastern
removed subparcels 18-3A and 18-3B from the original development
plan and stated its intent to develop a hotel on subparcel 18-1A
"in partnership" with CPA. CPA's second breach of contract
claim also fails.
Viewed in the light most favorable to CPA, CPA had no
contractual rights in subparcel 18-1A. The parties had
previously discussed possible projects on various subparcels,
including subparcels 18-3A and 18-3B, but none of these
discussions ever ripened into a final, written agreement. As of
2007, the parties had conducted some preliminary discussions
around developing a hotel on subparcel 18-3A. When Northeastern
decided to develop a dormitory on subparcels 18-3A and 18-3B, it
appears the parties agreed to shift the possible hotel
development to subparcel 18-1A. Again, the record indicates
that, for a time, both parties engaged in some discussions
around developing a hotel but failed to reach an agreement that
would give CPA enforceable rights. Nothing in the record
indicates that Northeastern ever agreed to a binding commitment
to build a hotel on subparcel 18-1A. Cf. Mendel Kern, Inc. v.
Workshop, Inc., 400 Mass. 277, 280-281 (1987) (letter of intent
to enter into lease was not binding promise because it merely
expressed "intention to do something" at future date).
Therefore, CPA had no contractual rights to subparcel 18-1A and 25
Northeastern was under no binding obligation to build a hotel
with CPA on subparcel 18-1A.
Moreover, any oral agreement would be unenforceable under
the Statute of Frauds. See G. L. c. 259, § 1. Nor could the
2007 development plan render a verbal agreement enforceable, as
it was not signed by either Northeastern or CPA. See id.
(agreement must be "in writing and signed by the party to be
charged therewith or by some person thereunto by him lawfully
authorized").
The 2007 development plan similarly does not "contain
directly, or by implication, all of the essential terms of the
parties' agreement." See Simon v. Simon, 35 Mass. App. Ct. 705,
709 (1994) (holding lease agreement did not satisfy Statute of
Frauds where it failed to define lease duration). It states
that Northeastern, in partnership with CPA,
"intends to proceed with construction on [subparcel 18-1A] (currently anticipated for use as a hotel) as contemplated by the [2007] Development Plan, continuing the revitalization of the development now known as Renaissance Park. The purpose of this Development Plan is to remove [subparcels 18-3A and 18-3B] . . . from the Development Area and to rescind the Master Plan, prior to proceeding with development on [subparcel 18-1A]."
While this suggests the outline of a possible agreement, the
2007 development plan itself is at most a statement of intent.
See Schwanbeck, 412 Mass. at 706-707 ("[a] promise made with an
understood intention that it is not to be legally binding, but 26
only expressive of a present intention, is not a contract"
[citation omitted]).
Indeed, the references to "proposed" actions and
"anticipated uses," and the use of the future tense throughout,
suggest an intent to set forth preliminary terms that were to be
finalized at a later date. Mendel Kern, Inc., 400 Mass. at 279
(statements in future tense of actions to be taken indicative of
future contractual intent, not existence of current agreement).
While a valid contract may be "contingent on future events," the
contract must "provide mechanisms to narrow present
uncertainties to rights and obligations." Lafayette Place
Assocs. v. Boston Redev. Auth., 427 Mass. 509, 518 (1998), cert.
denied, 525 U.S. 1177 (1999). Here, many aspects of the
development are merely proposed and thus subject to change until
approved by the BRA. Accordingly, it does not create a binding
contract. Contrast id. (holding that agreement was enforceable,
despite lack of firm purchase price, because agreement provided
for pricing formula and "most of the information needed to
complete that formula was available").
Nor can the 2007 agreement be enforced against Northeastern
under the theory of promissory estoppel.7 Promissory estoppel
7 CPA also argues, for the first time on appeal, that the 2007 agreement can be enforced under the theory of judicial estoppel. By failing to raise this argument below, CPA has 27
requires "(1) a representation intended to induce reliance on
the part of a person to whom the representation is made; (2) an
act or omission by that person in reasonable reliance on the
representation; and (3) detriment as a consequence of the act or
omission." Sullivan v. Chief Justice for Admin. & Mgt. of the
Trial Court, 448 Mass. 15, 27-28 (2006), quoting Bongaards v.
Millen, 440 Mass. 10, 15 (2003). A promissory estoppel claim
"is equivalent to a contract action, and the party bringing such
an action must prove all the necessary elements of a contract
other than consideration." Rhode Island Hosp. Trust Nat'l Bank
v. Varadian, 419 Mass. 841, 850 (1995). However, as discussed
above, both the 2007 agreement and the 2007 development plan are
statements of intent or agreements to negotiate, not unambiguous
promises to develop property with CPA. See id. (rejecting
promissory estoppel claim where evidence failed to support
finding that "'promise' in the contractual sense had been
made").8 Nor does CPA point to facts in the record demonstrating
waived it. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
8 To the extent CPA seeks to base its theory of promissory estoppel on Northeastern's position as articulated in the 2013 litigation, it must also fail. The trial judge's decision in that case referenced Northeastern's position that CPA "has certain rights in connection with development of [subparcel 18- 1A] and does not seek any order that would extinguish them." As discussed supra, the trial judge characterized the nature of CPA's rights as "not much better than a fishing license." 28
actions that it took in reliance on Northeastern's alleged
promise to develop a hotel with CPA on subparcel 18-1A, or any
detriment suffered as a result. Contrast Sullivan, 448 Mass. at
28-29 (plaintiffs stated claim for promissory estoppel where
they alleged that they had refrained from suing defendant in
reliance on defendant's promises to address safety concerns in
office building).
c. Count III -- breach of the implied covenant of good
faith and fair dealing. We turn next to CPA's claim that
Northeastern committed a breach of the implied covenant of good
faith and fair dealing. "Every contract implies good faith and
fair dealing between the parties to it" (citation omitted).
Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471
(1991). However, the covenant does not create new rights and
duties not already provided for in the contract. Ayash v. Dana-
Farber Cancer Inst., 443 Mass. 367, 385, cert. denied sub nom.
Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005) ("The scope of
the covenant is only as broad as the contract that governs the
particular relationship"). Accordingly, because the 1999 and
Acknowledging these rights in relation to subparcel 18-1A, without more, is not an unambiguous promise by Northeastern to develop a hotel on that parcel. Cf. Upton v. JWP Businessland, 425 Mass. 756, 760 (1997) (rejecting plaintiff's estoppel argument on basis that no enforceable promise existed, where plaintiff asked about regular work hours, and was so informed, but ultimately worked much later hours). 29
2007 agreements did not create any contractual obligation for
Northeastern to involve CPA in the development of subparcel 18-
1A, Northeastern's failure to do so cannot constitute a breach
of the covenant of good faith and fair dealing. Contrast
Anthony's Pier Four, Inc., supra at 471-473 (refusal to approve
changes to developer's plan constituted breach of implied
covenant where developer had already spent years working on
development and approval was unreasonably withheld in order to
extract more favorable concessions).
d. Counts VII and VIII -- unfair or deceptive business
practices in violation of G. L. c. 93A. We turn to CPA's claims
that Northeastern violated G. L. c. 93A by unilaterally
petitioning the BPDA to develop subparcel 18-1A for its own use
and repudiating CPA's rights in that subparcel. General Laws
c. 93A, § 2 (a), makes unlawful "[u]nfair methods of competition
and unfair or deceptive acts or practices in the conduct of any
trade or commerce." To determine whether conduct rises to the
level of an unfair act or practice, courts look to the following
factors: "(1) whether the conduct is within at least the
penumbra of some common-law, statutory, or other established
concept of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; [and] (3) whether it causes
substantial injury to consumers or other businesses" (quotation
and citation omitted). H1 Lincoln, Inc. v. South Washington 30
St., LLC, 489 Mass. 1, 14 (2022). Business conduct "in
disregard of known contractual arrangements" and aimed at
securing benefits for the breaching party is an unfair act or
practice under G. L. c. 93A. Anthony's Pier Four, Inc., 411
Mass. at 474, quoting Wang Lab., Inc. v. Business Incentives,
Inc., 398 Mass. 854, 857 (1986). However, a mere refusal to
deal, without more, is not an unfair trade practice. See PMP
Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975).
Viewed in the light most favorable to CPA, the facts show
no conduct by Northeastern that rises to the level of an unfair
or deceptive practice. The record before us only establishes
that Northeastern refused to deal with CPA after multiple
unsuccessful attempts to advance the hotel project. See PMP
Assocs., Inc., 366 Mass. at 596. And contrary to CPA's
contention, this case is markedly dissimilar to Anthony's Pier
Four, Inc., 411 Mass. at 453 n.3, 467-468, where the underlying
contract clearly required that the landowner work with the
developer on the development of the property. Here,
Northeastern had no contractual obligation to involve CPA and
thus did not act unfairly or deceptively in repudiating CPA's
claims. Nor did Northeastern use its refusal to deal to extract
some sort of benefit from CPA. Contrast H1 Lincoln, Inc., 489
Mass. at 15 (unfair trade practice where defendant provided
"pretextual and unreasonable grounds" for terminating lease and 31
then offered to reinstate lease to extract financial concessions
from plaintiff); Anthony's Pier Four, Inc., supra at 473.
Lastly, we consider whether Northeastern's characterization
of the 2013 litigation in its letter to the BPDA constitutes a
deceptive business act or practice. As discussed supra in our
discussion of the special motion to dismiss, Northeastern's
characterization was essentially accurate, and not a
misrepresentation constituting deception in violation of G. L.
c. 93A. See generally Aspinall v. Philip Morris Cos., 442 Mass.
381, 394 (2004) (act or practice is deceptive if it possesses
tendency to deceive). See also Nissan Autos. of Marlborough,
Inc. v. Glick, 62 Mass. App. Ct. 302, 312 (2004) (lawyer's
refusal to convey property under lease's purchase option was not
"unfair or deceptive act" because "it was a prophylactic action
taken in accordance with his earnestly held interpretation of
the document and the law").
e. Count IV -- intentional interference with advantageous
economic relationship. To succeed on a claim for intentional
interference with advantageous relations, a plaintiff must prove
that
"(1) [it] had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions." 32
Blackstone v. Cashman, 448 Mass. 255, 260 (2007).
The improper means or motive required to support a claim
for intentional interference is "actual malice" or "a spiteful,
malignant purpose, unrelated to the legitimate corporate
interest" (citations omitted). King v. Driscoll, 418 Mass. 576,
587 (1994), S.C., 424 Mass. 1 (1996). "The motivation of
personal gain, including financial gain, however, generally is
not enough" to constitute improper motive. Id.
Here, the requirements are not satisfied. In particular,
CPA has identified no improper motive or means as required by
our case law. Viewed in the light most favorable to CPA, the
record establishes only that Northeastern acted in its own
corporate self-interest when it sought to develop subparcel 18-
1A for its own institutional use after multiple unsuccessful
attempts to advance the hotel project. This, without more, is
not an improper means or motive. See King, 418 Mass. at 587.
See also Pembroke Country Club, Inc. v. Regency Sav. Bank,
F.S.B., 62 Mass. App. Ct. 34, 39 (2004) (defendant's "legitimate
advancement of its own economic interest" was not improper
motive or means for purposes of tortious interference claim).
Accordingly, CPA was not entitled to relief on this claim as a
matter of law. 33
f. Count V -- unjust enrichment. CPA's claim for unjust
enrichment similarly fails as a matter of law. Unjust
enrichment is the "retention of money or property of another
against the fundamental principles of justice or equity and good
conscience" (citation omitted). Sacks v. Dissinger, 488 Mass.
780, 789 (2021). A plaintiff must show that (1) he or she
conferred a measurable benefit on the defendant, (2) he or she
reasonably expected compensation from the defendant, and (3) the
defendant accepted the benefit with knowledge of the plaintiff's
reasonable expectation. Stewart Title Guar. Co. v. Kelly, 97
Mass. App. Ct. 325, 335 (2020).
CPA's unjust enrichment claim fails because the record does
not establish a monetary or property benefit that CPA conferred
on Northeastern. See Tedeschi-Freij v. Percy Law Group, P.C.,
99 Mass. App. Ct. 772, 780 (2021) (attorney's unjust enrichment
claim, based on law firm's continued use of her name after she
had departed firm, failed as matter of law where record
contained no evidence that firm derived quantifiable benefit
from continued use of name). Contrast Liss v. Studeny, 450
Mass. 473, 479 (2008) (lawyer's competent representation of
client in course of lawsuit conferred "measurable benefit" to
client, notwithstanding fact that lawsuit was ultimately
unsuccessful). 34
g. Counts IX and X -- declaratory and injunctive relief.
CPA's complaint also requested entry of a judgment declaring
that Northeastern must include CPA on any development of
subparcel 18-1A or otherwise compensate CPA for the value of
such development, as well as an injunction mandating that
Northeastern negotiate in good faith with CPA for payment of the
"fair and reasonable value" of CPA's alleged development rights
in subparcel 18-1A as a condition precedent to proceeding with
its development application before the BPDA. Both counts fail
as a matter of law because CPA has no development rights for
which Northeastern must provide compensation. See School Comm.
of Cambridge v. Superintendent of Sch. of Cambridge, 320 Mass.
516, 518 (1946) (declaratory judgment available if party
demonstrates it has "definite interest" in legal right denied by
another). See also Woods v. Wells Fargo Bank, N.A., 733 F.3d
349, 353 n.3 (1st Cir. 2013) (noting that injunctive relief is
not stand-alone cause of action under Massachusetts law).
4. Attorney's fees. Finally, we address the issue of
attorney's fees in light of CPA's contention that Northeastern
should not have been awarded attorney's fees under G. L. c. 231,
§ 59H, because this is not a "SLAPP suit." Where, as here, a
judge allows a special motion to dismiss a plaintiff's claim,
"[t]he judge has no discretion in deciding whether to award
costs and fees." McLarnon v. Jokisch, 431 Mass. 343, 349–350 35
(2000). Such an award is mandatory under the statute. See
G. L. c. 231, § 59H.
Because Northeastern was entitled to attorney's fees under
the statute, and because CPA does not argue that the amount
awarded was unreasonable, we do not consider the reasonableness
of the award on appeal. See McLarnon, 431 Mass. at 349–350. In
its brief, Northeastern has requested an award of appellate
attorney's fees and costs as well. Because we affirm the ruling
of the motion judge allowing the special motion to dismiss as to
count VI, Northeastern is entitled to such an award. See Benoit
v. Frederickson, 454 Mass. 148, 154 (2009). Accordingly, within
fourteen days of issuance of the rescript in this matter,
Northeastern may file a petition for reasonable appellate
attorney's fees and costs in accordance with the procedure set
forth in Fabre v. Walton, 441 Mass. 9, 10–11 (2004). See O'Gara
v. St. Germain, 91 Mass. App. Ct. 490, 501 (2017).
5. Conclusion. We affirm the allowance of Northeastern's
special motion to dismiss count VI of CPA's complaint. We also
affirm the entry of partial summary judgment in favor of
Northeastern on counts I, II, III, VII, and VIII, as well as the 36
allowance of Northeastern's motion to dismiss counts IV, V, VI,
IX, and X.9
Judgment affirmed.
9 Northeastern has moved to strike a letter that CPA filed after oral argument in this case. Because our decision does not rest on the contents of CPA's letter, we need not consider the motion. See Matter of the Discipline of an Attorney, 442 Mass. 660, 674 n.29 (2004).