MAYFLOWER EMERALD SQUARE, LLC v. BONIMS II, INC.

No. 16-P-1522.

MAYFLOWER EMERALD SQUARE, LLC vs. BONIMS II, INC., & others.

Appeals Court of Massachusetts.


Attorney(s) appearing for the Case

Gregg M. Lysko, Esquire , James E. Hoyt, Esquire , Valerie Jeanne Stanwood, Esquire , for Mayflower Emerald Square, LLC, Plaintiff/Appellee.

Scott K. DeMello, Esquire , for Yehuda Amar, Defendant/Appellant.

Scott K. DeMello, Esquire , for Robert Cano, Defendant/Appellant.

Scott K. DeMello, Esquire , for Bonims II, Inc., Defendant/Appellant.

By the Court (Milkey, Agnes & Blake, JJ.)


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Summary decisions issued by the Appeals Court pursuant to its 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 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).

The defendants, Bonims II, Inc. (Bonims), Yehuda Amar, and Robert Cano, appeal from a judgment of the Superior Court in which the judge granted the plaintiff, Mayflower Emerald Square, LLC, partial summary judgment on the issue of liability and, after a bench trial, awarded the plaintiff compensatory damages and attorney's fees for breach of a commercial lease. The defendants2 claim that the judge erred in (1) granting summary judgment because a genuine issue of material fact existed, (2) awarding damages inconsistent with the lease's terms, and (3) awarding attorney's fees for particular charges. The plaintiff has also requested appellate attorney's fees. Finding no error, we affirm the judgment and award the plaintiff attorney's fees in connection with this appeal.

Background.

On October 17, 2003, Bonims agreed to lease premises at the Emerald Square Mall from the plaintiff for a term of ten years ending June 30, 2013. In art. 18 of the lease, the parties defined their rights and responsibilities in the event of Bonim's default. On the same day, Amar and Cano signed a guaranty agreement (guaranty) with the plaintiff that guaranteed the lease. The guaranty provided, inter alia, that "an Assignment of said Lease or any subletting thereunder shall not release or relieve the undersigned from their liability hereunder."

On July 20, 2010, Bonims assigned the lease, with the plaintiff's consent, to Robert Sergio Simoes (Simoes). The assignment agreement (assignment) stated that Bonims remained "primarily and fully liable for the payment of all Rent and for the performance of all other terms" under the lease. Simoes's wife, Allison Simoes, signed a separate guaranty agreement as called for in the assignment, but the assignment was silent as to the guaranty signed by Amar and Cano.

By November 1, 2012, Simoes was in arrears, having consistently owed on the account since March 1, 2012. The plaintiff notified the defendants and Simoes that Simoes was in default under the lease, and that the plaintiff would terminate the lease within fourteen days if the default was not cured. Simoes failed to cure the default. The plaintiff brought a summary process action, and Simoes vacated the premises on March 8, 2013.

Thereafter, the plaintiff brought this suit seeking to recover damages from Bonims and to hold Amar and Cano liable under the guaranty. The plaintiff then filed a motion for summary judgment against Cano and Amar, which the judge allowed, finding that there was no genuine issue of material fact on the question of Amar's and Cano's liability under the guaranty. Following a bench trial to determine damages, the judge ordered judgment for the plaintiff in the amount of $90,857.58, for pre- and posttermination damages, as well as attorney's fees.

The defendants argue that Amar's answer to one of the plaintiff's interrogatories raises a genuine issue of material fact regarding whether the plaintiff had released them from their guaranty obligations, and that the judge was precluded from granting summary judgment on the question of liability. The defendants also claim that § 18.2 of the lease only provides for posttermination damages if the plaintiff takes possession before terminating the lease, whereas here, the plaintiff terminated before taking possession. Furthermore, the defendants assert that if posttermination damages are to be awarded, the calculation provided for in the lease results in no damages. Finally, the defendants assert that attorney's fees should be reduced because the description of some of the work in the bills submitted by the plaintiff's attorneys is overly vague, and other work was for motions that were never submitted, and therefore should not be included. For the reasons set forth below, we disagree on each of these issues.

Discussion.

1. Summary judgment.

We review a grant of summary judgment considering the evidence in the light most favorable to the nonmoving party. Gray v. Giroux, 49 Mass.App.Ct. 436, 438 (2000). When considering a motion for summary judgment, a trial judge must look only to admissible evidence in the record. See Madsen v. Erwin, 395 Mass. 715, 721 (1985). A unilateral impression, without personal knowledge that would tend to create that impression, is insufficient to raise a genuine issue of material fact. See Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968, 968 (1976); Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).

The defendants contend that Amar's answer to one of the plaintiff's interrogatories is evidence that the plaintiff had released Amar and Cano from the guaranty.3 Regardless of Amar's belief that he had been released, there is nothing in the record to suggest that the release was actually contemplated by the parties at the time of the assignment. See Shapiro Equip. Corp., supra (discouraging averments based on information and belief, as opposed to personal knowledge). Amar also states that he believed that Bonims had also been released from liability. In fact the assignment expressly provides that Bonims was to remain liable. This discrepancy between Amar's answer to the interrogatory and the assignment demonstrates that the answer represents Amar's subjective impressions, rather than a statement of personal knowledge. Therefore, even in the light most favorable to the defendants, there is no evidence of the existence of a release.

2. Posttermination damages.

The defendants contend that the plaintiff is barred from seeking posttermination damages by the absence of a term providing for such in the lease. See 275 Washington St. Corp. v. Hudson River Intl., LLC, 465 Mass. 16, 17 (2013). A trial judge's interpretation of an unambiguous contract is a matter of law and is reviewed de novo. See Ferri v. Powell-Ferri, 476 Mass. 651, 654 (2017). The judge is to construe the contract "in a reasonable and practical way." USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass.App.Ct. 108, 116 (1989).

The parties agree that the language of § 18.2 of the lease is unambiguous, but draw different conclusions as to its meaning and effect. The disagreement is not about the meaning of the words per se, but about their effect within a statutory scheme that requires termination of the lease before repossession of the premises. The defendants read the language as making posttermination damages contingent on the plaintiff taking possession before terminating the lease. However, as Massachusetts law requires the landlord to terminate the lease before taking possession of the premises, this interpretation would render the contract term void. See G. L. c. 184, § 18. Therefore, the most practical reading of the lease in this case is the one that the judge adopted, which provides for posttermination damages. See USM Corp., supra at 123 (construing language of written agreement in conformity with statutory background).

The defendants further argue that applying the posttermination damages calculation contemplated in the lease results in no damages. They claim that the plaintiff "is only entitled to collect `the difference between' the rent due and the rental value and, therefore, it is not entitled to collect any monies for the balance of the lease following the termination." However, a thorough reading of the lease reveals that this calculation is to be used to determine amounts "as additional rent," and that if the plaintiff does not "re-let" the premises, the plaintiff "may recover from Tenant, the full total of all Minimum Rent and all items of additional rent due." As the plaintiff did not "re-let" the premises within the time remaining on the lease, Bonims and, under the guaranty, Amar and Cano, remain liable for the "full total" of the rent. See USM Corp., supra at 116 (holding that contract is to be construed "in a reasonable and practical way").

3. Attorney's fees.

The defendants challenge the amount of the attorney's fees awarded to the plaintiff. "What constitutes a reasonable fee is a question that is committed to the sound discretion of the judge." Berman v. Linnane, 434 Mass. 301, 302-303 (2001). Whether an attorney's fee is reasonable may be determined by a multifactor analysis or by the lodestar method, and the judge "is not required to review and allow or disallow each individual item in the bill." Id. at 303. Following the approach outlined in Berman, the judge here took into consideration the experience of the attorneys, the rates charged by equivalent attorneys, and the time spent working on the case, among other factors. Despite the defendants' claim that particular line items charged by the plaintiff's attorneys were unreasonable, the goal is to ensure that an award is reasonable as a whole, and close scrutiny of particular line items is not required. See ibid. (affirming award of attorney's fees when judge was "mindful of the appropriate factors"). Thus, we defer to the considered judgment of the judge in approving the attorney's fees requested by the plaintiff.

4. Appellate attorney's fees.

The plaintiff also requests that we award it additional attorney's fees in connection with this appeal. The lease provides that the defendants will reimburse the plaintiff for "incurring any fees . . . in any litigation . . . in which Tenant causes Landlord to be involved." As the defendants brought this appeal, the plaintiff is entitled to appellate attorney's fees. See New England Merchants Natl. Bank of Boston v. Hoss, 356 Mass. 331, 336 (1969) (adopting majority rule to award appellate attorney's fees in similar circumstances). Within fourteen days of the date of this decision the plaintiff may file an application for fees and costs in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004); the defendants shall have fourteen days within which to respond.

The judgment is affirmed.4

So ordered.

FootNotes


1. Yehuda Amar, Robert Cano, Robert Sergio Simoes, and Allison Simoes. A suggestion of bankruptcy as to Robert Sergio Simoes and Allison Simoes was filed in Superior Court, and the Superior Court docket lists their status as "inactive." They are not involved in this appeal, and there is nothing in the record before us to indicate the status of their bankruptcy proceedings.
5. The panelists are listed in order of seniority.
2. Our use of "defendants" in this decision refers to Bonims, Cano, and Amar.
3. In his response to the plaintiff's interrogatory no. 13, Amar described the circumstances of the assignment: "It was my understanding in selling the store at that time that Mr. Simoes and Mrs. Simoes would personally guarantee the lease in lieu of Mr. Cano and me. . . . I would not have finalized the deal with Mr. Simoes and the landlord if either my company, Mr. Cano or I remained liable going forward."
4. We note that the judgment includes Robert Sergio Simoes and Allison Simoes although it appears that the claims against them had not been adjudicated at the time the judgment entered. See note 1, supra.

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