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22-P-985 Appeals Court
MARK W. WILLIAMSON, trustee,1 vs. TAMAR BARLAM2 & others.3
No. 22-P-985.
Suffolk. November 6, 2023. - February 15, 2024.
Present: Green, C.J., Blake, & Henry, JJ.
Real Property, Purchase and sale agreement, Restrictions, Condominium. Condominiums, Management of trust, Derivative suit. Contract, Interference with contractual relations, Implied covenant of good faith and fair dealing. Consumer Protection Act, Sale of condominium unit. Fiduciary. Waste. Trust, Breach of trust. Declaratory Relief. Practice, Civil, Dismissal, Amendment of complaint, Trustee of condominium management trust, Consumer protection case.
Civil action commenced in the Superior Court Department on November 5, 2021.
A motion to dismiss was heard by Kenneth W. Salinger, J., and a motion for reconsideration was considered by him.
1 Of the 902 Mass Ave Realty Trust and derivatively on behalf of 902-912 Massachusetts Avenue Condominium Trust.
2 Individually and as trustee of the 902-912 Massachusetts Avenue Condominium Trust.
3 David Barlam, Padraig O'Malley, Gabriel O'Malley, and Stephanie Mamakos, individually and as trustees of 902-912 Massachusetts Avenue Condominium Trust, and Georgia Mamakos. 2
Gregory J. Aceto for the plaintiff. James P. Lucking for the defendants.
BLAKE, J. This case involves five commercial condominium
units on Massachusetts Avenue in Cambridge and a condominium
trust that contains a use restriction providing that no business
conducted in any of the units shall "substantially compete" with
a business operating in any other unit unless four of the five
trustees assent in writing (noncompete clause). The term
"substantially compete" is not defined by the condominium trust.
The plaintiff, Mark Williamson, filed suit in the Superior Court
alleging, in pertinent part, that the defendants wrongly
interfered with his efforts to sell his unit. Following a
hearing on the defendants' motion to dismiss Williamson's
complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754
(1976), the judge allowed the motion, entered a judgment of
dismissal with prejudice, and denied Williamson's motion for
reconsideration and renewed motion for leave to amend. On
Williamson's appeal, we affirm in part, and reverse in part.
Background. Mark Williamson is the trustee of the 902 Mass
Ave Realty Trust, which owns a commercial condominium unit
located at 902-904 Massachusetts Avenue in Cambridge (unit).
The unit is one of five units in a commercial condominium, which
are managed through the 902-912 Massachusetts Avenue Condominium 3
Trust (trust), created by a declaration of trust dated February
20, 2007, and pursuant to G. L. c. 183A. Unit 906 houses the
Mass Ave Diner (which serves breakfast, brunch, and lunch, and,
after the trust was created, obtained a liquor license), and is
owned by defendant David Barlam, the son of defendant Tamar
Barlam (owner of 908 Massachusetts Avenue and trustee). Unit
912 houses The Plough and Stars (a full-service Irish bar and
restaurant, which serves lunch and dinner, has live music and a
liquor license) and is owned by Gabriel O'Malley, who also is a
trustee. The remaining defendants include Padraig O'Malley
(owner of 912 Massachusetts Avenue and uncle to Gabriel),
Georgia Mamakos (owner of 912 Massachusetts Avenue), and
Stephanie Mamakos (trustee and daughter of Georgia).4
The trust bylaws include a noncompete clause that is set
forth in Article V, Section 5, of the trust and provides:
"It is hereby agreed that no business conducted in any of the Units shall substantially compete with a business conducted in any other Unit unless four (4) Trustees assent thereto in writing. For purposes hereof it is hereby acknowledged that the businesses that exist at the time of recording this Declaration of Trust do not violate this provision."5
4 As several defendants share a surname, we refer to them by their first names to avoid confusion.
5 Each unit owner is entitled to appoint one of the five trustees. 4
The term "substantially compete" is not defined by the trust.
Because the Mass Ave Diner and The Plough and Stars existed at
the time that the trust was recorded, they "do not violate"
Article V, Section 5, but the trust does not indicate whether
these businesses do not "substantially compete" or whether they
had sufficient trustee votes if they do "substantially compete."
The trust does not otherwise give examples of what businesses
would or would not substantially compete with each other such
that if relationships between owners soured, there would be no
governing standard.6
Williamson purchased his unit in 2007 after the creation of
the trust. The Atomic Bean Café operated in the unit owned by
Williamson from 2008 until it closed in the fall of 2020. In
March 2021, Williamson entered into a purchase and sale
agreement (P&S) with Christopher Willis to sell his unit.
Willis intended to open a fine dining Italian restaurant with a
full liquor license. Under the P&S, Willis could terminate the
6 The attorney who drafted this provision testified at his deposition that at the time that he drafted the provision, the unit owners were getting along. This seems to be without consideration of what might occur if the unit owners did not all get along in the future, as is this case here. The record does not include any evidence of written assent to any degree of "substantial competition" between the two businesses; on the present record, it is at least a question of disputed fact whether the statement in the trust that the then existing businesses do not violate the provision should be construed as an interpretive guide or as a reflection that the businesses obtained written assents that do not appear in the record. 5
contract if he was unable to obtain the express written consent
of four trustees if required by the noncompete clause. Willis's
attempts to negotiate with the trustees failed; as was his right
under the P&S, Willis cancelled the contract.
In October 2021, Williamson entered into a P&S with Yandi
Huang, who intended to open a Japanese Asian cuisine restaurant
in the unit, with a purchase price that was $175,000 less than
Willis had offered. The P&S contained the same terms as the
Willis P&S including the noncompete clause and the right to
cancel if Huang did not secure the written assent of four
trustees. Williamson alleges that "[a]s a result of the
defendant's [sic] unreasonable conduct," this sale was never
consummated.
Williamson brought suit in his individual capacity against
all defendants for tortious interference with a contract, civil
conspiracy, and violation of G. L. c. 93A (93A claim). He also
brought suit in his capacity as trustee of the 902 Mass Ave
Realty Trust against Tamar, Gabriel, and Stephanie for breach of
fiduciary duty, and waste, mismanagement, and misappropriation
of trust assets.7 The verified complaint also contained a count
7 The complaint did not name Ronald C. Clarizia, one of the original trustees of the 902-912 Massachusetts Avenue Condominium trust, a current trustee and owner of 910 Massachusetts Avenue, as a defendant. Clarizia's affidavit, filed with Williamson's opposition to the motion to dismiss, stated that the noncompete clause "was not meant to prevent a 6
for declaratory relief seeking multiple declarations, including
that the noncompete clause be declared unenforceable.
Williamson also asked, albeit in a prayer for relief, for a
declaration that the businesses owned by David and Gabriel and
the businesses proposed by Willis and Huang are substantially
different such that the trustees' assent is not legally
necessary under the noncompete clause.8
The defendants filed a motion to dismiss contending that
the complaint failed to state a claim upon which relief could be
granted, and failed to set forth any facts supporting
Williamson's requests for declaratory relief. They requested
that the complaint be dismissed with prejudice and without leave
to replead. Williamson filed an opposition, and asked in the
alternative for leave to amend the complaint, though he did not
attach a proposed amended complaint. The judge allowed the
defendants' motion and a judgment of dismissal with prejudice
entered. The judge denied Williamson's motion to reconsider and
broad category of businesses or restaurants from opening in a Condominium Unit," and that Willis's and Huang's proposed restaurants did not substantially compete with the existing restaurants. Clarizia averred that the defendants were not acting in good faith, and "harm[ing]" the trust, thereby reducing the value of the units.
8 Because there is no indication that Willis or Huang continue to be ready to purchase the unit from Williamson, we read this paragraph broadly as asking for an interpretation of the noncompete clause such that Williamson and the other owners know their respective rights and obligations. 7
renewed motion for leave to amend the complaint, again without a
proposed amended complaint, but with a summary of the additional
allegations he would include in an amended complaint. This
appeal followed.
Discussion. The judge dismissed Williamson's complaint
with prejudice "for the reasons stated in Defendants' initial
and reply memoranda." This margin notation, without further
explanation, gives us pause as to whether the judge construed
the complaint in the light most favorable to Williamson, as he
was required to do. See Buffalo-Water 1, LLC v. Fidelity Real
Estate Co., LLC, 481 Mass. 13, 17 (2018). Nonetheless, we
review a motion to dismiss de novo, see A.L. Prime Energy
Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass.
419, 424 (2018), and "[w]e limit our consideration to the
factual allegations in the plaintiff's complaint, taking them as
true and drawing all reasonable inferences in the plaintiff's
favor." Porter v. Board of Appeal of Boston, 99 Mass. App. Ct.
240, 243 (2021).9
Williamson, individually and as a trustee, contends that
dismissal of the complaint was erroneous, premature, and
inequitable, and that the judge abused his discretion in denying
9 The complaint most often refers to "defendants" but sometimes refers to "defendant's" or "defendant" without specifying an individual defendant. We construe the references to defendants within the context of the complaint. 8
Williamson's requests for leave to amend and motion for
reconsideration. Generally speaking, Williamson claims that the
noncompete clause was not intended to prevent a broad category
of businesses from opening in the unit, and that the defendants
interfered with the sale of his unit. Williamson further
contends that, among other things, he is entitled to a
declaration that the proposed restaurant use of the unit did not
violate the noncompete clause. We address each claim in turn.
1. The noncompete clause. Although at this stage of the
proceedings we do not have the occasion to construe the
noncompete clause at issue, we begin with a brief discussion of
it as it is the underlying basis for most of Williamson's
claims. Among other things, Williamson sought a declaration
that the noncompete clause was unenforceable in these
circumstances and was an unreasonable restraint on alienation
facially and as applied, that the trustees' assent was not
necessary, and that the noncompete clause was inapplicable to
the proposed buyers. Massachusetts has long recognized that
restrictions may be imposed on the uses that may be made of
condominium units. See Franklin v. Spadafora, 388 Mass. 764,
774 (1983). See also G. L. c. 183A, §§ 8 (g) and 11 (e). “The
most common standard [for reviewing provisions that restrict
certain condominium uses] is equitable reasonableness” (citation
omitted)." Noble v. Murphy, 34 Mass. App. Ct. 452, 457 (1993). 9
When a noncompete clause appears in originating documents, which
predate the purchase of a unit, the review is "even more
liberal" as here Williamson knew of and accepted the noncompete
clause when he purchased the unit. Id. at 458. Thus, a
noncompete clause "will not be invalidated absent a showing that
[it is] wholly arbitrary in [its] application, in violation of
public policy, or that [it] abrogate[s] some fundamental
constitutional right" (citation omitted). Id. at 459. Though
interpretation of a noncompete clause is largely a question of
law, where (as in the present case) important terms of the
clause are undefined it may be necessary to resort to parol
evidence to construe its meaning and scope. In any event, the
condominium trust is in essence a contract, and interpretation
of a contract looks principally to the intent of the parties,
construed in light of the facts and circumstances surrounding
its creation. See, e.g., Kobayashi v. Orion Ventures, 42 Mass.
App. Ct. 492, 496-497 (1997).
a. Tortious interference with a contract and civil
conspiracy. To state a claim of tortious interference with a
contract, [Williamson] must plausibly allege that "(1) he had a
contract with a third party; (2) the defendant[s] 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) [Williamson] was harmed 10
by the defendant[s'] actions." Draghetti v. Chmielewski, 416
Mass. 808, 816 (1994). The third element -- improper motive or
means -- requires "something more than intentional
interference." United Truck Leasing Corp. v. Geltman, 406 Mass.
811, 815 (1990). The improper motive or means may include
"deceit or economic coercion . . . or ill will" (quotations and
citations omitted). Huang v. RE/MAX Leading Edge, 101 Mass.
App. Ct. 150, 164 (2022), S.C., Huang v. Ma, 491 Mass. 235
(2023). To state a claim of civil conspiracy, Williamson must
show "an underlying tortious act in which two or more persons
acted in concert and in furtherance of a common design or
agreement." Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384
(2011).
Taking the factual allegations in the light most favorable
to Williamson, the complaint alleged that tensions developed
between Williamson and the unit owners and trustees concerning
the use and management of the trust property, ultimately causing
the defendants to deliberately interfere with Williamson's
efforts to sell his unit. Specifically, in response to Willis's
attempts to secure the assent of the trustees for his proposed
Italian restaurant, the defendants insisted that Willis enter
into a nondisclosure agreement to prevent Williamson from
learning the details of their discussions, including the
financial concessions the defendants sought. In addition, the 11
complaint alleged that David and Gabriel unreasonably demanded
that Willis pay them for every seat that Willis intended to
place in his restaurant to secure their assent to the sale.10
David, who was not a trustee, and therefore had no authority to
withhold assent to the sale or negotiate concessions, allegedly
told Willis that he was paying too much for the unit, and that
he would never allow any restaurant to open in the unit.
Williamson also alleged that David told him that he would never
allow any restaurant to be opened in the unit under any
circumstances. In addition, David told Willis's wife that he
wanted to buy the unit because he already owned a unit, and
Williamson's unit was on the other side.
Taking Williamson's allegations as a whole, David and
Gabriel's actions can be fairly read as an effort to make it so
difficult for Williamson to sell his unit, that he would agree
to sell it to David at an artificially lower price. At bottom,
David and Gabriel are alleged to have acted outside the ordinary
course of bargaining by using threats, misrepresentations, and
improper means to interfere with Williamson's efforts to sell
his unit. The use of threats to interfere with a business is
10The complaint alleges that David and Gabriel demanded that "the Defendants receive payment for every seat" but there is no indication that the other defendants knew of this alleged demand. Based on Williamson's briefing, we understand that "defendants" in this context refers to David and Gabriel. 12
improper and antithetical to an assertion of rights. See
Skyhook Wireless, Inc. v. Google Inc., 86 Mass. App. Ct. 611,
622 (2014) (exercise of rights not improper means but acting
through threats, misrepresentations of fact, and other improper
means may be).11 See also Huang, 101 Mass. App. Ct. at 164-165
(improper conduct includes ulterior motives, deceit, and
economic coercion). Moreover, trustees such as Gabriel, cannot
put themselves in a position where their interests conflict with
the trust's interests. See Kneer v. Zoning Bd. of Appeals of
Norfolk, 93 Mass. App. Ct. 548, 556 (2018). And because these
claims require an assessment of the defendants' states of mind,
they should be evaluated on a full factual record, and not on a
motion to dismiss. See Fraelick v. PerkettPR, Inc., 83 Mass.
App. Ct. 698, 708 (2013). Moreover, the complaint alleged that
David and Gabriel "combin[ed] together in concerted action" to
interfere with the Willis P&S. See Bartle v. Berry, 80 Mass.
App. Ct. at 383-384. Accordingly, we conclude that Williamson
pleaded sufficient facts with enough heft to state a claim for
tortious interference with a contract and civil conspiracy to
tortiously interfere with the sale against David and Gabriel,
11To be clear, to the extent that a proposed business would substantially compete under the noncompete clause, there may be nothing inherently wrong in a substantially similar business ceding its rights under the noncompete clause for compensation such as a monetary payment. 13
and therefore these counts of the complaint should not have been
dismissed against David and Gabriel. See Iannachino v. Ford
Motor Co., 451 Mass. 623, 636 (2008).
As to the remaining four defendants, the complaint
identified Tamar and Stephanie as trustees, and Padraig and
Georgia as unit owners. Read as a whole, the complaint alleged
that the proposed restaurants did not substantially compete, and
by demanding concessions from the proposed buyers, the
defendants deliberately interfered with the proposed sale. This
type of demand and its resultant impact on the P&S is sufficient
to survive a motion to dismiss if the proposed restaurants do
not substantially compete with the existing restaurants. As
discussed supra, the term "substantially compete" is undefined
in the trust, and therefore on the facts as alleged, the
question of whether the defendants' actions in withholding their
assent to the sale to Willis was proper or improper cannot be
determined on this record. Put differently, it was error to
dismiss these claims where the question of whether a fine dining
Italian restaurant or a Japanese Asian restaurant "substantially
competed" with at least the "Plough and Stars" (a full-service
Irish bar and restaurant that serves lunch and dinner and has
live music and a liquor license) cannot be determined by the
plain language of the noncompete clause. 14
b. Covenant of good faith and fair dealing. Finally,
every contract is subject to an implied covenant of good faith
and fair dealing, see Anthony's Pier Four, Inc. v. HBC Assocs.,
411 Mass. 451, 473 (1991), that requires that parties to a
contract shall not do anything that would "have the effect of
destroying or injuring the right[s] of the other part[ies] to
receive the fruits of the contract." Druker v. Roland Wm.
Jutras, Assocs., Inc., 370 Mass. 383, 385 (1976). The complaint
plausibly suggests that there is a triable question whether the
defendants violated the covenant of good faith and fair dealing
by restricting the use of the unit and impeding the sale to
Willis. For this additional reason, dismissal was error.
c. Chapter 93A claim. Chapter 93A claims require unfair
or deceptive acts or practices "in the conduct of any trade or
commerce." G. L. c. 93A, § 2. Trustees are part "of a
volunteer governing board" of the trust and therefore "are not
engaged in trade or commerce." Office One, Inc. v. Lopez, 437
Mass. 113, 125 (2002). Williamson alleged that David and
Gabriel are engaged in trade or commerce as restaurant owners
and that the defendants engaged in a "willful or knowing pattern
of deceit, unfair and deceptive acts and practices, and a
deceitful course of conduct." He further alleged that all of
the defendants violated 93A by attempting to extort Willis,
threatening Willis, and wrongfully inducing Willis to terminate 15
the P&S. Because the 93A claim arises from the private
relationship between Williamson and the trustees and condominium
unit owners, these are principally private transactions that are
not within the purview of a 93A claim. See Zimmerman v. Bogoff,
402 Mass. 650, 662 (1988).12 Accordingly, the complaint was
properly dismissed against all the defendants with the exception
of David and Gabriel. As David is neither a trustee nor
condominium unit owner, he may be subject to liability under
93A. Because Williamson alleged sufficient facts to survive a
motion to dismiss as it relates to David, dismissal of this
count of the complaint against David was error. See Begelfer v.
Najarian, 381 Mass. 177, 191 (1980) ("whether a private
individual's" action "takes place in a 'business context' must
be determined from the circumstances of each case"). Gabriel
might also be liable for the 93A claim to the extent that he was
not acting as a trustee. Put differently, being a trustee does
not protect Gabriel or anyone else from acts undertaken in a
different capacity. Although we express no opinion on the truth
of the allegations or the strength of these claims, at this
The defendants' reliance on L.B. Corp. v. Schweitzer- 12
Mauduit Int'l, Inc., 121 F. Supp. 2d 147 (D. Mass. 2000), is misplaced as there the issue was between abutting landowners who operated businesses. By contrast here, the parties are condominium owners or business owners who are allegedly blocking competition from another business within a commercial condominium. 16
stage of the proceedings, dismissal of this count of the
complaint against Gabriel was error. Cf. id. (record on summary
judgment sufficient to determine defendants' actions did not
take place in business context).
d. Breach of fiduciary duty and waste, mismanagement, and
misappropriation of trust assets. Williamson, in his capacity
as trustee, asserted claims against Tamar, Gabriel, and
Stephanie, in their roles as trustees, for breach of fiduciary
duty and waste, mismanagement, and misappropriation of trust
assets. Trustees of a condominium association like Tamar,
Gabriel, and Stephanie, owe a fiduciary duty to the association.
See Berish v. Bornstein, 437 Mass. 252, 269 n.29 (2002).
Trustees, however, do not owe a fiduciary duty to individual
condominium unit owners. See Office One, Inc., 437 Mass. at
125. The defendants assert that the complaint used only
"labels" and "conclusions," and failed to allege harm to the
condominium trust separate and apart from the harm to
Williamson.13 The judge dismissed these claims with prejudice
without taking action on Williamson's motion to amend the
complaint and denying his motion for reconsideration without
taking action on Williamson's renewed motion for leave to amend.
Williamson alleges that Willis offered to pay the 13
defendants' condominium fees for the next four years but loss of that offer is not a waste of condominium assets -- the trust is owed that money regardless of who pays it. 17
Williamson contends that the judge abused his discretion. We
agree.
We review the denial of a motion to amend the complaint for
abuse of discretion and note that leave to amend should be
"freely given when justice so requires." Tocci v. Tocci, 490
Mass. 1, 24 (2022). Leave to amend may be denied if the motion
was "unduly delayed or the amendment would be futile." Id.,
citing Doull v. Foster, 487 Mass. 1, 22 (2021). The judge made
no findings regarding delay or futility. Nor did the judge make
findings as to the new evidence that Williamson alleged that he
uncovered since he filed the original complaint, as set forth in
his motion for reconsideration. While it would have been better
practice for Williamson to file a proposed amended complaint
along with his motion to amend, Williamson's motion for
reconsideration described the proposed amendment in enough
detail to meet the notice pleading requirement. Compare Nett v.
Bellucci, 437 Mass. 630, 645-646 (2002) (memorandum that
described proposed additional claim without proposed amended
complaint attached sufficed for purposes of motion to amend)
with Johnston v. Box, 453 Mass. 569, 582 (2009) (two-sentence
footnote in opposition memoranda to motion to dismiss did not
"adequately describe the contemplated amendment in order for
[judge] to determine the merits of the motion") Because the
proposed amendment described in the motion for reconsideration 18
included factual allegations adequate to survive a motion to
dismiss,14 and the judge did not rule otherwise, it was an abuse
of discretion to dismiss these claims.
2. Declaratory relief. Williamson's complaint sought ten
declarations on an assortment of topics, as described infra, all
of which the judge dismissed with prejudice. "[W]here a party
moves to dismiss a properly brought declaratory judgment claim
under rule 12 (b) (6) and where the judge concludes that the
facts alleged in the complaint fail to state a claim upon which
relief can be granted, the judge has the option of dismissing
the claim or of declaring that, based on the facts alleged in
the complaint, the plaintiff is not entitled to the declaratory
relief sought." Buffalo-Water 1, LLC, 481 Mass. at 17-18. With
this principle in mind, we conclude that the declarations
related to the alleged tortious interference, civil conspiracy,
breach of fiduciary duty, and waste, mismanagement, and
misappropriation claims were improperly dismissed. We further
conclude that all declarations related to the 93A claims were
14The proposed additional allegations included evidence from the attorney who drafted the noncompete clause about the intent of the language, evidence that David interfered with the proposed sales in order to keep the unit price artificially low in order to purchase the unit himself, and that David and Gabriel worked together to negotiate a transfer of the trust interests so that they could obtain a controlling interest in the trust. 19
properly dismissed as to all defendants with the exception of
David and Gabriel.15
Williamson sought a declaration that the noncompete clause
was unenforceable, an unreasonable restraint on alienation
facially and as applied, the trustee's assent was not necessary,
and it was inapplicable to the proposed buyers. Relatedly,
Williamson also sought declarations that the defendants' conduct
damaged the value of his unit, and unreasonably interfered with
his ability to sell the unit. We conclude that Williamson
"properly brought" a claim for declaratory relief as he has
demonstrated that an actual controversy exists as to the
application of the noncompete clause to the proposed
restaurants, and specifically, whether they "substantially
compete" with the current restaurants at that location, and its
resultant impact on Williamson. See Buffalo-Water 1, LLC, 481
Mass. at 18. If the claim was "properly brought," the judge
must then determine whether Williamson alleged facts, which if
true, "state a claim for declaratory relief that can survive a
. . . motion to dismiss." Id. The judge did not reach this
15The role of trustee cannot shield activity undertaken by the defendants if they were acting in a non-trustee capacity. Any such allegations could be repleaded by Williamson to make clear whether he alleges that the defendants were acting as trustees or not. 20
second part of the analysis as he prematurely dismissed these
claims. This was error.
3. Conclusion. So much of the judgment that dismissed the
claims for breach of fiduciary duty (Count I), waste,
mismanagement, and misappropriation of trust assets (Count II),
tortious interference (Count III) and civil conspiracy (Count
IV), and the 93A claim (Count V) against David and Gabriel, and
the claims for declaratory judgment are vacated (Count VI). We
affirm the remainder of the judgment.
So ordered.