NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1319
TRESCA BROTHERS SAND & GRAVEL, INC.
vs.
EAMES STREET, LLC, & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Tresca Brothers Sand & Gravel, Inc.
(Tresca), appeals from a summary judgment entered in Superior
Court in favor of the defendant, Eames Street, LLC (Eames).
Tresca also challenges the dismissal of its claims for
intentional interference with contractual relations, intentional
interference with advantageous business relations, and
conspiracy, as well as the denial of its request to amend its
complaint to add claims for violations of G. L. c. 93, G. L.
c. 93A, and abuse of process. We affirm.
1Benevento Concrete Corp.; Benevento Family Limited Partnership; Benevento Family, LLC; Charles J. Benevento; planning board of Wilmington; board of appeals of Wilmington; and town of Wilmington. Background. In 2003, Tresca entered into a lease with
Glens Falls Lehigh Cement Company (Lehigh) for two noncontiguous
portions (leased premises) of a property in Wilmington
(property) upon which Lehigh operated a cement terminal. The
lease also grants Tresca a nonexclusive easement between the two
areas that comprise the leased premises. The lease defines the
boundaries of the leased premises by reference to an attached
exhibit, which consists of a site plan of the property with
hand-drawn boundaries identifying the leased premises (site
plan). The lease provides that the leased premises include "all
licenses, permits, and other agreements appurtenant thereto,"
and that the term of the lease will commence when Tresca obtains
the necessary permits to operate a concrete plant on those
premises. Tresca and Lehigh contemporaneously entered into a
separate agreement under which Lehigh would supply, and Tresca
would purchase, cement for Tresca's facilities in Wilmington and
Millis.
In 2015, Tresca applied to the town of Wilmington (town)
board of appeals (board) for permits to operate a concrete
plant. The plan Tresca submitted required construction upon
portions of the property outside of the boundaries shown on the
site plan. The board denied the permits and Tresca appealed to
2 the Superior Court, which, following a trial, directed the board
to issue the permits.
In April 2019, Lehigh sold the property to Martignetti
Development, LLC, which is one of Tresca's cement industry
competitors. The agreement memorializing the sale disclosed the
Tresca lease and stated that at closing, the lease would be
assigned to Martignetti Development, LLC. In June 2019,
Martignetti Development, LLC changed its name to Eames. In
October 2019, Eames informed the town that it had purchased the
property, Tresca's use of the property was limited to those
portions of the property identified on the site plan, and the
remaining portions of the property would be used for purposes
other than the proposed concrete plant. In November 2020, the
board issued special permits to Tresca.
Tresca filed this action against Eames; Eames's sole
member, Charles Benevento; and Benevento's other companies
(Benevento defendants).2 Tresca alleged that Benevento and his
companies actively opposed Tresca's efforts to obtain the
permits and sought a declaration that it was entitled to proceed
with the construction of the concrete plant. Eames
counterclaimed, seeking a declaration that Tresca does not have
2 Tresca also named the town, the board, and the town's planning board as defendants. Those municipal defendants, however, are not parties to this appeal.
3 the right to use any portion of the property outside the
portions identified on the site plan.
A judge of the Superior Court allowed Eames's motion to
dismiss Tresca's claims for intentional interference with
contractual relations, intentional interference with
advantageous business relations, and conspiracy. The judge also
denied Tresca's motion for reconsideration. Thereafter, Tresca
moved to amend its complaint to add claims for violations of
G. L. c. 93, G. L. c. 93A, and abuse of process. A second judge
denied Tresca's motion to amend and subsequent motion for
reconsideration. The denials of Tresca's motions to amend and
reconsider were upheld by a single justice of this court.
Eames then moved for summary judgment, asserting that the
lease was unambiguous and Tresca did not have the right to build
a concrete plant outside the area identified as the leased
premises on the site plan. Tresca countered that the site plan
was ambiguous. A third judge allowed the motion, entering
judgment in favor of Eames on Tresca's claims for declaratory
relief, breach of contract, breach of the implied covenant of
good faith and fair dealing, and specific performance, and on
Eames's counterclaim for declaratory relief. Tresca appealed.
Discussion. 1. Summary judgment ruling. a. Standard of
review. Tresca contends that the judge erred in granting
4 summary judgment to Eames. "We review a decision on a motion
for summary judgment de novo." Conservation Comm'n of Norton v.
Pesa, 488 Mass. 325, 330 (2021) (Pesa). "Summary judgment is
appropriate where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law."
Barbetti v. Stempniewicz, 490 Mass. 98, 107 (2022), quoting
Pesa, supra; Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404
(2002).
b. Whether the lease was ambiguous. Tresca challenges the
judge's conclusion that the lease is unambiguous and, by its
terms, Tresca does not have the right to build a concrete plant
outside of the area shown on the site plan attached to the
lease.
Whether a legal document's language is ambiguous, and the
interpretation of an unambiguous document, are questions of law
that we review de novo. See Bank v. Thermo Elemental Inc., 451
Mass. 638, 648 (2008). To determine whether a document is
ambiguous, "the court must first examine the language of the
contract by itself, independent of extrinsic evidence concerning
the drafting history or the intention of the parties." Id.
"[A]n ambiguity is not created simply because a controversy
exists between the parties, each favoring an interpretation
contrary to the other's." Suffolk Constr. Co. v. Lanco
5 Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999), quoting
Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472, 475
(1987). Extrinsic evidence may be admitted only when the
document is ambiguous on its face or as applied to the subject
matter. See General Convention of the New Jerusalem in the U.S.
of Am., Inc. v. MacKenzie, 449 Mass. 832, 835-836 (2007).
i. Identification of the leased premises. Tresca first
argues that the lease and attached site plan do not set forth a
definite description of the leased premises. The lease states
that the leased premises includes a "portion of the premises
shown on . . . Exhibit 'A.'" Exhibit A is the site plan of the
property, which is marked with hand-drawn boundaries and
annotations. We agree with the judge that, although this site
plan "is imprecise in the sense that it does not include the
exact dimensions of the drawn boundaries," the fact that the
boundaries are hand-drawn does not create a dispute of material
fact that precludes summary judgment. Rather, the lease and
site plan unambiguously show that when Lehigh and Tresca
executed the lease in 2003, they intended to enter into a lease
for only a portion of the property, as marked by the approximate
boundaries in the site plan.
ii. Permits appurtenant to the leased premises. Tresca
contends that the judge erred in concluding that the permits and
6 alleged verbal agreements between Lehigh and Tresca concerning
the scope of the leased premises were not appurtenant to the
leased premises. Section 1.02(c) of the lease provides that the
leased premises includes "[a]ll licenses, permits and other
agreements appurtenant thereto." At summary judgment, Tresca
contended that the language "permits" and "other agreements"
contemplates future permits and agreements between the parties,
including the special permits issued by the board in 2020, as
well as verbal and written agreements allegedly entered into by
Lehigh and Tresca after execution of the lease, that granted
Tresca the right to build a concrete plant outside the
boundaries marked on the site plan. Because appurtenant rights
must be in use at the time a leasehold interest is granted, see
Melville Shoe Corp. v. Kozminsky, 268 Mass. 172, 180-181 (1929),
and there is no evidence that Lehigh held a permit to construct
a concrete plant in 2003, the judge concluded that there were no
appurtenant permitting rights to be granted under the lease.
The judge similarly rejected Tresca's argument that the
agreements allegedly entered into by Lehigh and Tresca after the
execution of the lease amounted to "other agreements
appurtenant" to the leased premises.
Tresca now argues that the judge erred by ignoring that,
under § 1.03 of the lease, "Tresca's tenancy did not and could
7 not begin until after" the town granted the special permits in
2020. It does not appear, however, that Tresca made this
argument in response to Eames's motion for summary judgment.
"An issue not raised at the trial court is not entitled to
review here." Edgar v. Edgar, 406 Mass. 628, 629 (1990). Even
if the argument were not waived, we would still reject it.
Section 1.03 provides that the term of the lease:
"shall commence simultaneously with and shall be contingent upon (i) agreeing on the plan to be attached as Exhibit A and (ii) obtaining all necessary municipal state or federal permits to occupy and operate said premises as a concrete batch plant . . . and commencing operation of its concrete batch plant on the leased premises."
It does not follow, as Tresca argues, that a special permit
contemplating operation of a concrete plant beyond the scope of
the leased premises, obtained seventeen years after the lease's
execution, becomes "incorporated into the definition of the
leased premises under § 1.02(c)." To the contrary, § 1.03
refers to the operation of a concrete plant on the premises as
defined in the preceding section, and § 2.02 addresses the
procurement and maintenance of "any governmental license or
permit" required for "the proper and lawful conduct of Lessee's
business on the premises or in any part thereof" (emphasis
added). We therefore reject Tresca's argument that, under
§ 1.02(c), the special permits it obtained in 2020 "expanded the
8 definition of the leased premises, or at the very least, created
ambiguity as to the scope of the leased premises."
iii. Custom and practice of commercial leasing. Tresca
also contends that the lease is ambiguous "under the custom and
practice of commercial leasing." It cites an expert report
asserting that the site plan did not represent a final
understanding between Tresca and Lehigh, and that Tresca and
Lehigh likely had a mutual understanding that the area defined
as the leased premises would need to be modified during the
municipal approval process. Tresca moved to supplement the
summary judgment record with this expert report after the record
was filed. The judge denied its motion, explaining that he had
"determined that the relevant portions of the lease agreement at
issue are not ambiguous" and "the proposed expert testimony as
to trade usage [was] not material to the Court's decision." See
Cesana v. Johnson, 232 Mass. 444, 448 (1919). Because Tresca
does not challenge in this appeal the judge's denial of its
motion to supplement the summary judgment record, the report is
not before us and we cannot consider it. See Fidelity Mgt. &
Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200 (1996),
quoting Cullen Enters., Inc. v. Massachusetts Prop. Ins.
Underwriting Ass'n, 399 Mass. 886, 889 n.9 (1987) ("In our
review of a motion for summary judgment we are 'confined to an
9 examination of the materials before the court at the time the
rulings were made'").
iv. Lehigh and Tresca's conduct after execution of the
lease. Lastly, Tresca asserts that the lease's ambiguity is
evidenced by the actions of Lehigh and Tresca following its
execution. It points to the fact that Lehigh assisted Tresca
with its efforts to obtain permits, and those efforts called for
the concrete plant to make use of land beyond the area
identified on the site plan, and that Lehigh allowed Tresca to
prepare for its project on land outside that area. We do not,
however, consider extrinsic evidence "to create an ambiguity
when the plain language is unambiguous." General Convention of
New Jerusalem in the U.S. of Am., Inc., 449 Mass. at 835, citing
Panikowski v. Giroux, 272 Mass. 580, 583 (1930). As discussed
supra, the lease unambiguously shows that Lehigh and Tresca
entered into a lease for only a portion of the property, as
delineated in the site plan in the attached exhibit. Thus, even
if Lehigh and Tresca contemplated that Tresca would construct
and operate a concrete plant beyond the scope of the leased
premises, there was no "initial ambiguity" regarding how the
lease defined such premises. See General Convention of New
Jerusalem in the U.S. of Am., Inc., supra at 835-836.
10 Accordingly, there is no genuine issue of material fact
regarding the lease's ambiguity.
c. Whether the lease was amended. As an alternative
ground for challenging the summary judgment ruling, Tresca
contends that the judge erred in rejecting its claim that Lehigh
and Tresca amended the lease. Again, we disagree.
Where "the parties have defined the method in their
contract to bring about" a modification to the terms of the
contract, any "attempt to do so that does not conform to the
method laid down by them is invalid" (quotation and citation
omitted). Bright Horizons Children's Ctrs., Inc. v. Sturtevant,
Inc., 82 Mass. App. Ct. 482, 486 (2012). Here, § 20.05 of the
lease provides that it "shall not be modified except by a
writing, subscribed by both parties." Tresca does not address
that provision in its brief, but rather contends that the lease
"did not require some formally enumerated amendment to become
effective" because it "contemplated the integration of future
permits in § 1.02(c)." As discussed supra, there is no merit to
Tresca's assertion that § 1.02(c) contemplates the incorporation
of permitting rights not in existence at the time the lease was
executed into its definition of leased premises.
Tresca did not present any evidence of a written amendment
to the lease in its opposition to Eames's summary judgment
11 motion. Instead, Tresca argues that it and Lehigh engaged in a
joint enterprise to develop a concrete plant outside the scope
of the leased premises and that the lease was modified as the
result of "Lehigh's written endorsement of permit applications"
contemplating such an expanded concrete plant. Those permit
applications are not in the summary judgment record either,
however, and, as the judge explained, there is no evidence of
"what Lehigh represented or agreed to by signing the
applications" or the authority of the employees who signed the
permit applications to modify the lease.
Tresca also points to evidence that "Lehigh's
representatives made multiple oral representations subsequent to
the Lease's execution that" the site plan attached to the lease
"did not encompass the final understanding as to the scope of
the leased premises." Setting aside that some of this evidence
is also outside the summary judgment record, it does not create
a disputed issue of material fact. First, a lease is subject to
the Statute of Frauds and therefore cannot be modified orally.
See Matter of Estate of Widdiss, 98 Mass. App. Ct. 808, 814
(2020), citing G. L. c. 259, § 1 (Fourth). Second, as
discussed, § 20.05 of the lease provides that it may be modified
only "by a writing, subscribed by both parties." Third, "a
party asserting that an oral modification occurred must present
12 evidence that the parties reached an agreement as to its terms,"
Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 217
(2018), and the summary judgment record does not contain any
evidence that Lehigh and Tresca agreed to modify the lease. To
the contrary, Lehigh's designee under Mass. R. Civ. P.
30 (b) (6), as appearing in 489 Mass. 1401 (2022), testified
that the lease was not amended.3
2. Dismissal of Tresca's intentional interference and
conspiracy claims. Tresca argues that the judge erred by
dismissing its claims for intentional interference with
advantageous business relations, and conspiracy. "We review the
grant of a motion to dismiss de novo, accepting as true all
well-pleaded facts alleged in the complaint, drawing all
reasonable inferences therefrom in the plaintiff's
favor . . . ." Lanier v. President & Fellows of Harvard
College, 490 Mass. 37, 43 (2022). "In assuming the facts as
3 For similar reasons, we reject Tresca's contention that "Lehigh's assistance . . . estops Benevento from denying Tresca's right to operate a batch plant in accordance with the permits it obtained." The judge dismissed Tresca's claim of equitable estoppel against the Benevento defendants, and Tresca has not challenged that ruling in its appeal. As discussed, the evidence does not support Tresca's claims that "the anticipated permits" were incorporated "into the definition of the leased premises," or that the parties made oral or written modifications to the lease after its execution.
13 alleged, however, '[w]e do not regard as "true" legal
conclusions cast in the form of factual allegations'" (citation
omitted). Edwards v. Commonwealth, 477 Mass. 254, 260 (2017).
"To survive a motion to dismiss, the facts alleged must
plausibly suggest[] (not merely be consistent with) an
entitlement to relief" (quotation omitted). Id., quoting
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
Tresca's claims were properly dismissed.
"To prevail on a claim of tortious interference with a contract, a plaintiff must establish that (1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant's interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions" (quotation omitted).
Weiler v. PortfolioScope, Inc., 469 Mass. 75, 84 (2014), quoting
Psy-Ed Corp. v. Klein, 459 Mass. 697, 715-716 (2011). The judge
dismissed Tresca's claims because it failed to allege that any
conduct by the Benevento defendants caused a third party to
break the lease, which, the judge noted, "is very much still in
effect and binding on Eames Street." See Blackstone v. Cashman,
448 Mass. 255, 259 n.8 (2007) ("A party to a contract cannot be
held liable for intentional interference with that contract").
Although Tresca contends that the judge erred by conflating
Benevento "and his various corporate entities" with Eames,
Tresca's complaint does not make any nonconclusory allegations
14 regarding the conduct of the Benevento defendants that are
distinct from the alleged conduct of Benevento himself, who is
the sole member of Eames. See Iannacchino, 451 Mass. at 636
(conclusory assertions insufficient to withstand motion to
dismiss). Furthermore, there is no inherent inconsistency in
the judge's decision to dismiss Tresca's intentional
interference claim while allowing its contract claims to proceed
to discovery. See Duff v. McKay, 89 Mass. App. Ct. 538, 547
(2016) (party that brings action for breach of contract may
still be bound to that contract).
Tresca's claim for intentional interference with
advantageous relations fails for similar reasons.
"To make a successful claim for intentional interference with advantageous relations, a plaintiff must prove that (1) he 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."
Blackstone, 448 Mass. at 260. Here, Tresca failed to plausibly
allege "an advantageous relationship with a third party" that
was broken as the result of the defendants' conduct. Id. The
relationship at issue here involves the lease between Tresca and
Lehigh, which was assumed by Eames in 2019 and remains in
effect.
15 Because Tresca does not develop any argument or cite any
legal authority in support of its civil conspiracy claim, that
argument is waived. See Mass. R. A. P. 16 (a) (9), as appearing
in 481 Mass. 1628 (2019). See also K.A. v. T.R., 86 Mass. App.
Ct. 554, 567 (2014). In addition, we agree with the judge's
conclusion that Tresca failed to plausibly allege any concerted
action by the defendants rising to a tortious act. Contrast
Williamson v. Barlam, 103 Mass. App. Ct. 727, 733 (2024), citing
Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011).
3. Denial of leave to amend. Lastly, Tresca argues that
the second judge erred in denying its motion to amend its
complaint to add additional claims for violations of G. L.
c. 93, G. L. c. 93A, and abuse of process.4 We review the denial
of a motion to amend a complaint for abuse of discretion. Chang
v. Winklevoss, 95 Mass. App. Ct. 202, 212 (2019). Although
leave to amend to assert new claims "should be 'freely given
when justice so requires,' Mass. R. Civ. P. 15 (a), 365 Mass.
761 (1974), such leave may be denied where there is undue delay,
undue prejudice to the opposing party, or futility in the
amendment." Nguyen v. Massachusetts Inst. of Tech., 479 Mass.
436, 461 (2018). Tresca moved to amend in November 2021,
4 A single justice upheld the denials of this motion and a related motion for reconsideration.
16 sixteen months after the tracking order deadline for such
motions had expired and eight months after the first judge
decided the defendants' motion to dismiss. The judge found the
lateness of Tresca's motion unjustified because "no discovery
[had] ensued in the litigation" and, therefore, there were "no
newly discovered facts or claims that [Tresca] did not have
available to it when the action was commenced." She concluded
that this failure to reasonably advance the litigation amounted
to undue delay, noting that "the costs and time associated with
reversing and repeating litigation stages is implicitly
prejudicial to the other party(ies)." The judge was also
understandably unpersuaded by Tresca's argument that its delay
was justified in light of the defendants' "strategy of filing
sham litigation and delaying or preventing [Tresca's] concrete
plan[t]." We discern no abuse of discretion.
Judgment affirmed.
By the Court (Meade, Ditkoff & Toone, JJ.5),
Clerk
Entered: December 2, 2025.
5 The panelists are listed in order of seniority.