Haven Real Estate Group, LLC v. Verizon Wireless
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDERIn accordance with the forgoing, Havens motion to stay summary judgment (Docket No. 43) is DENIED, Verizons motion to strike (Docket No. 48) is ALLOWED and Verizons m otion for summary judgment (Docket No. 38) is,1) With respect to Havens claims of breach of contract, unjust enrichment and a violation of Chapter 93A, ALLOWED, 2) With respect to Verizons counterclaim for breach of contract, ALLOWED but damages are to be determined at trial,3) With respect to Verizons counterclaim for unjust enrichment, DENIED and4) With respect to Verizons counterclaim pursuant to Chapter 93A, DENIED.So ordered.(Caruso, Stephanie)
United States District Court
District of Massachusetts
BELL ATLANTIC MOBILE OF
MASSACHUSETTS CORPORATION, LTD. )
d/b/a VERIZON WIRELESS,
HAVEN REAL ESTATE GROUP, LLC,
Civil Action No.
MEMORANDUM & ORDER
This case arises out of a dispute over an electric bill.
Plaintiff/counterclaim-defendant, Haven Real Estate Group, LLC
(“Haven”), an Illinois limited liability company whose sole
member resides in Illinois, leases space to
defendant/counterclaim-plaintiff, Bell Atlantic Mobile of
Massachusetts Corporation, Ltd.
The defendant corporation does
business as Verizon Wireless (“Verizon”) and is a Bermuda
corporation with a principal place of business in Basking Ridge,
Both parties allege that the other 1) breached its
contractual obligations, 2) was unjustly enriched and 3) engaged
in deceptive and unfair trade practices in violation of M.G.L.
c. 93A (“Chapter 93A”).
Haven’s motion to stay and Verizon’s motions to strike and
for summary judgment are currently pending before the Court.
For the reasons that follow, the motion to stay will be denied,
the motion to strike will be allowed and the motion for summary
judgment will be allowed, in part, and denied, in part.
A. The Lease
This case involves property located at 11-21 Lawrence
Street in Lawrence, Massachusetts (“the property”).
November, 1995, Verizon’s predecessor-in-interest, Cellco
Partnership d/b/a Bell Atlantic NYNEX Mobile, entered into a
lease with Frank and Rita Palmisano to rent 500 square feet on
the eighth floor of the building located on the property and a
portion of its rooftop for a cellular communications facility.
The lease requires Verizon to
pay for its own power consumption used thirty (30) days
after receipt of an invoice from LESSOR . . . .
In May, 2006, the property was converted into a condominium
known as Baystate Building Condominium (“the condominium”).
condominium has two trustees, Baystate on the Common, LLC
(“Baystate I”) and Baystate on the Common II, LLC (“Baystate
II”), and two units.
Verizon’s cell site base station is in
In July, 2007, Baystate II granted a mortgage to Mt.
Washington Cooperative Bank (“Mt. Washington”).
interest included the “Collateral Assignment of Leases and
Rents” on the property.
In June, 2010, Mt. Washington’s
successor, East Boston Savings Bank, assigned the mortgage,
including the “[l]eases, and the notes and claims secured
thereby,” to Secured Debts Cartersville, LLC.
That LLC, in
turn, assigned the mortgage and the interest in leases to Haven
in September, 2010.
In November, 2010 a certificate of entry
for foreclosure was executed on the property and in January,
2011 Haven foreclosed on the property and bought it at auction.
There was also a separate, parallel assignment of Verizon’s
In September, 2007, Baystate II assigned its lease with
Verizon to Capital Group II, LLC.
Currently, the lease is
assigned to GTP Structures II, LLC (“GTP II”).
B. The Dispute Over the Electric Bill
The parties provide different accounts of how the dispute
over the outstanding electric bill unfolded.
predecessor of Verizon’s lease began, the property had only one
electric meter and the electric company, National Grid, sent its
bills directly to the landlord.
In Haven’s version of events,
it began receiving invoices from National Grid in September,
2010 and there was an outstanding electric bill of $20,000 when
it foreclosed on the property.
Haven noticed that the bills
were atypically large and discovered that there were two power
lines into the property in 2012.
After investigating, it
determined that the second line was connected to a Verizon
cellular tower on the building’s roof.
Haven alleges that it
presented Verizon with an invoice in June, 2014 and that Verizon
failed to pay it within 30 days in violation of the lease.
In Verizon’s recounting of the facts, Haven received an
electric bill for approximately $150,000 in April, 2014.
invoice stated that there was a “termination notice in effect”.
Haven refused to pay the invoice and forwarded it to Verizon,
even though it purported to be for all of the electricity used
at the property, not just Verizon’s portion.
negotiated with National Grid to pay $75,000 (one-half of the
balance) in May, 2014 in order to gain time to resolve its
dispute with Haven.
The following month, Haven sent a second
National Grid termination notice to Verizon, again purportedly
refusing to pay, and informed Verizon that it was responsible
for the entire balance.
Verizon paid off the remaining balance
of approximately $86,000 in August, 2014.
The parties agree that as of August, 2014, Verizon had paid
the outstanding bill for electrical service on the entire
Furthermore, Haven admits that 1) Verizon actually
overpaid the bill by approximately $24,000, 2) National Grid
sent the reimbursement to Haven and 3) it kept the reimbursement
rather than returning it to Verizon.
In August, 2014, after the electric service invoice had
been paid, Verizon installed a separate meter so that it could
be directly billed for its use of electricity.
thereafter, Haven sent Verizon a letter asserting that it was
entitled to reimbursement of payments it made on behalf of
Verizon for electric service dating back to 1995.
demanded payment of approximately $1,666,000 but Verizon
contends that there is no evidence that Haven paid any such
amount for electrical service.
In June, 2015, Haven filed an amended complaint.
timely answered and counterclaimed.
Each party alleges that the
other 1) breached its contractual obligations in the lease, 2)
was unjustly enriched and 3) acted unfairly and deceptively in
violation of Chapter 93A and requests compensatory and multiple
damages and attorneys’ fees and costs under Chapter 93A.
In June, 2016, Verizon moved for summary judgment on all
claims and counterclaims.
Thereafter, Haven filed its
opposition to the summary judgment motion and moved for a stay.
Verizon later moved to strike portions of the affidavit of
Albert Adriani upon which Haven relies in its opposition to
This memorandum and order addresses those
Motion to Stay
A. Legal Standard
Pursuant to Fed. R. Civ. P. 56(d), if the opponent of
summary judgment demonstrates that it is unable to submit facts
crucial to its opposition, a court may delay summary judgment or
allow supplemental discovery.
Extra time under Rule 56(d) is
not, however, “to be granted as a matter of course.” Troiano v.
Aetna Life Ins. Co., 844 F.3d 35, 45 (1st Cir. 2016) (quoting
Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014)).
need not grant Rule 56(d) relief if the party opposing summary
judgment is “unlikely to garner useful evidence from
supplemental discovery.” Id. (quoting Hicks, 755 F.3d at 743).
Moreover, to be entitled to extra time, the party opposing
summary judgment must demonstrate
(i) good cause for his inability to have discovered or
marshalled the necessary facts earlier in the proceedings;
(ii) a plausible basis for believing that additional facts
probably exist and can be retrieved within a reasonable
time; and (iii) an explanation of how those facts, if
collected, will suffice to defeat the pending summary
Alicea v. Machete Music, 744 F.3d 773, 788 (1st Cir. 2014)
(quoting Rivera–Torres v. Rey–Hernandez, 502 F.3d 7, 10 (1st
Haven moves to stay summary judgment pending completion of
discovery on Fed. R. Civ. P. 56(d) grounds.
It contends that it
timely noticed the Fed. R. Civ. P. 30(b)(6) deposition of
Verizon but the deposition was postponed due to mediation and
has yet to be completed.
Verizon responds that the motion to
stay is part of long-running dilatory tactics from Haven.
submits that Haven’s counsel never contacted Verizon to
reschedule the deposition and has delayed discovery by failing
to produce documents and missing deadlines.
Haven has not demonstrated that the prerequisites for
relief under Fed. R. Civ. P. 56(d) have been met.
there was, perhaps, good cause for the initial delay given the
imminent mediation, Haven has provided no excuse for its failure
to make arrangements to take the deposition after the mediation.
See Alicea, 744 F.3d at 788.
Moreover, while the inability to meet one prong of the
Rivera-Torres test suffices to defeat Haven’s application, it
has also failed to show that the information from a Rule
30(b)(6) deposition would defeat summary judgment. Id.
asserts that it would collect information about how much Verizon
paid for electricity, its method for estimating its average
usage and the process of converting to an independent meter.
Verizon aptly points out, however, in order to defeat summary
judgment, Haven must demonstrate that it paid Verizon’s electric
bill and has been damaged because it was not reimbursed.
information would necessarily come from Haven, not Verizon.
Accordingly, Haven’s motion to stay summary judgment on Rule
56(d) grounds will be denied.
Motion to Strike
A. Legal Standard
“It is settled” that an interested witness cannot generate
a factual dispute to prevent summary judgment. Torres v. E.I.
Dupont De Nemours & Co., 219 F.3d 13, 20 (1st Cir. 2000).
witness attempts to prevent summary judgment by contradicting
previous “clear answers to unambiguous questions” without
explanation, the latter testimony will be disregarded. Id.
(quoting Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1,
4–5 (1st Cir. 1994)).
When evaluating contradictory testimony,
not obliged to accept as true or to deem as a disputed
material fact each and every unsupported, subjective,
conclusory, or imaginative statement made to the Court by a
Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 33, n.5 (1st
Cir. 2008) (quoting Torrech-Hernández v. Gen. Elec. Co., 519
F.3d 41, 47 (1st Cir.2008)).
Furthermore, if a contradictory
statement is made only after a summary judgment motion is filed,
the “chronology [is] probative of the fact that the non-movant
was merely attempting to create an issue of fact.” Orta-Castro
v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 110
(1st Cir. 2006).
Verizon contends that, because Haven has proffered no
explanation for why the interrogatory answers of Albert Adriani,
Haven’s manager, are contradicted by his subsequent affidavit,
the latter testimony should be stricken.
When first asked by
interrogatory whether there were any communications between
Haven and prior owners regarding electric bills, Adriani
responded that there were none.
Similarly, when asked if there
had been any third party demands for payment for use of
electricity at the property, Adriani responded in the negative
and affirmed that Haven had made no payment to third parties for
electrical service at the property.
In contrast to his earlier interrogatory answers, Adriani’s
affidavit states that 1) when Haven came into possession of the
property, there were approximately $20,000 in outstanding
electric bills, and 2) Haven paid for the electricity at the
property starting in September, 2010.
affidavit concedes that he has been unable to procure copies of
any of the invoices that Haven supposedly paid.
Verizon’s argument that the contradictory affidavit should
be stricken is well-taken.
Without offering an explanation for
the change, Haven acknowledges in its opposition to the motion
for summary judgment that “[the affidavit] does contradict Mr.
Adriani’s earlier response”. See Torres, 219 F.3d at 20.
sequence of events, specifically, the fact that the affidavit
was submitted after the filing of the summary judgment motion,
is also suspect. Orta-Castro, 447 F.3d at 110.
fact that Haven has been unable to procure any of the invoices
that it supposedly paid renders Adriani’s testimony not only
contradictory but also conclusory and unsupported. Garcia, 535
F.3d at 33, n.5.
Thus, because the Adriani affidavit with
respect to payments to third parties for electric bills is
contradictory and unsupported, Verizon’s motion to strike it
will be allowed.
Motion for Summary Judgment
A. Legal Standard
The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991).
The burden is on the moving party to
show, through the pleadings, discovery and affidavits, “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
A fact is material if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material
fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
If the moving party has satisfied its burden, the burden
shifts to the non-moving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
The Court must view the
entire record in the light most favorable to the non-moving
party and indulge all reasonable inferences in that party’s
favor. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
Summary judgment is appropriate if, after viewing the record in
the non-moving party’s favor, the Court determines that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law.
Verizon moves for summary judgment on all claims and
counterclaims in this action.
B. Breach of Contract
1. Legal Standard
Massachusetts law determines the elements of the parties’
claims because the case is properly in federal court based on
diversity jurisdiction. Edlow v. RBW, LLC, 688 F.3d 26, 31 (1st
When a contract is unambiguous, its interpretation
“is a question of law.” Allstate Ins. Co. v. Bearce, 589 N.E.2d
1235, 1238 (Mass. 1992).
Courts give the words in a written
contract their “plain meaning.” Freelander v. G. & K. Realty
Corp., 258 N.E.2d 786, 788 (Mass. 1970).
Courts are further
guided in their interpretation of contracts by “[j]ustice,
common sense and the probable intent of the parties.” Kotler v.
Spaulding, 510 N.E.2d 770, 772 (Mass. App. Ct. 1987).
To prevail on a breach of contract claim in Massachusetts a
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
Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 39 (Mass. 2016).
one of the parties to a contract assigns his contractual rights
and obligations to a third party, that individual may enforce
the contract. HRPT Advisors, Inc. v. MacDonald, Levine, Jenkins
& Co., P.C., 686 N.E.2d 203, 209 (Mass. App. Ct. 1997).
party to a contract assigns the rights to a contract more than
once, the first assignment will prevail over the second. Aetna
Cas. & Sur. Co. v. Harvard Trust Co., 181 N.E.2d 673, 679 (Mass.
1962) (“In Massachusetts, a prior assignee will take in
preference to a later assignee . . . .”).
beneficiaries may also enforce contractual obligations if they
can “show that they were intended beneficiaries of the contract
. . . .” Spinner v. Nutt, 631 N.E.2d 542, 546 (Mass. 1994).
The “fundamental principle” of damages that governs all
contract cases is compensation, or the value that the plaintiff
would have received had the contract been honored. Louise
Caroline Nursing Home, Inc. v. Dix Const. Corp., 285 N.E.2d 904,
907 (Mass. 1972).
Plaintiffs are not entitled to be made more
than whole or put “in a better position than if the defendant
had carried out his contract.” Id.
2. Haven’s Breach of Contract Claim
Verizon’s first contention, that Haven cannot assert a
valid breach of contract claim because it is not a party to the
lease, is incorrect.
Haven can enforce the lease as a party
because its interest in the lease derives from the 2007 mortgage
which included a collateral assignment of the lease.
assignment in the mortgage predated Baystate II’s assignment to
Accordingly, because Haven’s interest in the lease derives
from the first assignment, it is permitted to enforce the lease
against Verizon. Aetna, 181 N.E.2d at 679.
Moreover, even assuming, arguendo, that Haven was not a
party to the lease, it would be able to enforce the lease as a
third party beneficiary.
The assignment of the lease to GTP II
specifically states that
[the] Landlord and its successors and assigns are intended
third party beneficiaries of this Assignment and shall have
the right to directly enforce Assignee’s obligations and
assumptions hereunder . . . .
The plain meaning of that clause is that Haven, the landlord, is
an intended beneficiary of the assignment and it may enforce the
lease on GTP II’s behalf. See Spinner, 631 N.E.2d at 546.
Notwithstanding its ability to enforce the lease, however,
the undisputed facts demonstrate that Verizon is entitled to
summary judgment on Haven’s breach of contract claim because
Haven has suffered no damages.
Haven concedes that Verizon paid
the $160,000 National Grid invoice.
Haven even concedes that it
retained the National Grid reimbursement of approximately
$24,000 after Verizon over-paid the electric bill.
Even if the Court were to assume the validity of the
$20,000 invoice that was purportedly outstanding when Haven came
into possession of the note, which it does not for reasons
outlined above, Verizon would be entitled to summary judgment.
See Louise Caroline Nursing Home, Inc., 285 N.E.2d at 907.
Haven’s claim that it is entitled to reimbursement after
conceding that Verizon paid the extensive, outstanding electric
bill and Haven pocketed the refund defies logic.
failed to produce a single invoice or any evidence of payments
made other than the contradictory, untimely Adriani affidavit.
The Court therefore concludes that, even when the facts are
viewed in the light most favorable to Haven, there is no
evidence that it has been damaged and Verizon is entitled to
judgment on the contract claim as a matter of law. See Garcia,
535 F.3d at 33.
3. Verizon’s Breach of Contract Claim
Verizon asserts that, if the Court determines that there is
an enforceable contract, it is entitled to summary judgment on
its counterclaim for breach of contract.
In Verizon’s view,
Haven violated the lease by forcing it to pay for the power
consumption for the entire property and then keeping the
National Grid reimbursement of Verizon’s overpayment.
responds that there are factual disputes with respect to whether
Verizon paid the total electric bill during Haven’s ownership of
the property based on the Adriani affidavit.
Verizon is entitled to summary judgment with respect to its
counterclaim for liability for breach of contract.
states that Verizon will “pay for its own power consumption used
thirty (30) days after receipt of an invoice . . . .” (emphasis
added). Haven admits that 1) it received an invoice from
National Grid for about $150,000 in April, 2014, 2) it told
Verizon that it was required to pay the full amount even though
the bill was for electrical service for the entire property and
3) after Verizon paid the electric bill it retained the $24,000
reimbursement for Verizon’s overpayment.
Accordingly, under the
plain meaning of the contract, the undisputed facts demonstrate
that Haven breached the lease agreement between the parties to
Verizon’s detriment by 1) forcing it to pay the entire electric
bill and 2) pocketing the reimbursement. Freelander, 258 N.E.2d
Conversely, genuine issues of material fact persist with
respect to the amount of damages that Haven owes Verizon.
it is clear that Verizon is owed approximately $24,000 for the
overpayment, it is unclear how much of Verizon’s payments to
National Grid related to its own consumption of electric service
and how much to Haven’s.
Therefore, the amount of damages that
Haven owes Verizon is an open question.
C. Unjust Enrichment
Each party also claims that the other was unjustly
Verizon moves for summary judgment of dismissal of
Haven’s unjust enrichment claim and summary judgment in favor of
its own unjust enrichment claim.
Pursuant to Massachusetts law,
parties are prohibited from “overrid[ing] an express contract by
arguing unjust enrichment.” Reed v. Zipcar, Inc., 527 F. App'x
20, 24 (1st Cir. 2013) (quoting Platten v. HG Bermuda Exempted
Ltd., 437 F.3d 118, 130 (1st Cir.2006)); see also Zarum v. Brass
Mill Materials Corp., 134 N.E.2d 141, 143 (Mass. 1956) (“The law
will not imply a contract where there is an existing express
contract covering the same subject matter.”).
because the Court has determined that the lease is a valid,
enforceable contract that addresses Verizon’s utility
obligations, summary judgment of dismissal of Haven’s unjust
enrichment claim will be allowed.
Conversely, Verizon is not entitled to summary judgment on
its own unjust enrichment claim and, with respect to that claim,
its motion for summary judgment will be denied.
D. Chapter 93A
1. Legal Standard
Section Two of Chapter 93A prohibits the use of unfair or
deceptive business practices and Section 11 includes a private
cause of action that enables business entities to recover
therefor. M.G.L. c. 93A §§ 2, 11.
In order to bring a claim
under Section 11, an entity must have “suffer[ed] [a] loss of
money or property” or demonstrate that it may experience such a
loss in the future. Id. at § 11.
A Chapter 93A claim may arise from a breach of contract.
Ahern v. Scholz, 85 F.3d 774, 798–99 (1st Cir. 1996).
of contract alone, however, is insufficient to support a Chapter
93A claim. Id.
Instead, the party alleging that Chapter 93A was
violated must demonstrate
the use of a breach of contract as a lever to obtain
advantage for the party committing the breach in relation
to the other party; i.e., the breach of contract has an
extortionate quality that gives it the rancid element of
Id. at 799 (quoting Atkinson v. Rosenthal, 598 N.E.2d 666, 67071 (Mass. App. Ct. 1992)).
Courts have determined that the
“extortionate quality” needed for a Chapter 93A claim exists if
individuals have “withheld monies which they legally owed as a
form of extortion . . . .” Pepsi-Cola Metro. Bottling Co. v.
Checkers, Inc., 754 F.2d 10, 18 (1st Cir. 1985).
actions that “disregard known contractual agreements and [are]
intended to secure benefits for the breaching party” violate
Chapter 93A. Anthony's Pier Four, Inc. v. HBC Assocs., 583
N.E.2d 806, 821 (Mass. 1991) (internal quotations omitted).
2. Haven’s Chapter 93A Claim
Verizon contends that it is entitled to summary judgment on
Haven’s Chapter 93A claim because its conduct, i.e. the
overpayment of an electric bill, is not unlawful, unfair or
It further submits that Haven has not shown the loss
of money or property with respect to such a claim.
responds that genuine issues of material fact remain as to
As addressed above, Haven has failed to produce any
evidence demonstrating that it “suffer[ed] [a] loss of money or
property” before summary judgment. M.G.L. c. 93A §§ 2, 11.
Furthermore, Haven admits that Verizon had its own meter
installed on the property in August, 2014 and does not claim
that any future losses will occur. Id.
Accordingly, there is no
genuine issue of material fact with respect to whether Haven
suffered a loss and Verizon is entitled to summary judgment on
Haven’s Chapter 93A claim as a matter of law.
3. Verizon’s Chapter 93A Claim
In Verizon’s view, summary judgment on its Chapter 93A
claim is appropriate because it paid for Haven’s power
consumption and Haven unscrupulously retained the reimbursement
from National Grid.
Viewing the facts in the light most
favorable to Haven, it is possible that Haven was mistaken in
its understanding of the contract and thus its behavior did not
rise to the level of unscrupulous unfairness required to support
a Chapter 93A claim. Ahern, 85 F.3d at 799 (quoting Atkinson,
598 N.E.2d at 670).
Accordingly, genuine issues of material
fact remain with respect to Verizon’s Chapter 93A claim and
summary judgment is not warranted.
In accordance with the forgoing, Haven’s motion to stay
summary judgment (Docket No. 43) is DENIED, Verizon’s motion to
strike (Docket No. 48) is ALLOWED and Verizon’s motion for
summary judgment (Docket No. 38) is,
1) With respect to Haven’s claims of breach of contract,
unjust enrichment and a violation of Chapter 93A, ALLOWED,
2) With respect to Verizon’s counterclaim for breach of
contract, ALLOWED but damages are to be determined at
3) With respect to Verizon’s counterclaim for unjust
enrichment, DENIED and
4) With respect to Verizon’s counterclaim pursuant to
Chapter 93A, DENIED.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated February 22, 2017
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