R. BIRD AND ASSOCIATES, INC. AND ALVAREZ BRACERO LP, LLC
FERNANDO L. SUMAZA & CO., INC., JUNCOS LIMITED DIVIDEND PARTNERSHIP AND WILLIAM FRANCIS GALVIN, SECRETARY OF THE COMMONWEALTH OF MASSACHUSETTS 
MEMORANDUM OF DECISION AND ORDER ON PARTIES'
CROSS-MOTIONS FOR SUMMARY JUDGMENT
B. Gordon, Justice
case arises out of a dispute over the identity of the general
partner of the Juncos Limited Dividend Partnership ("
Juncos Ltd."). R. Bird and Associates, Inc. (" R.
Bird") and its intended successor, Alvarez Bracero LP.
LLC (" Bracero LP" or " Bracero")
(collectively " the plaintiffs"), assert that R.
Bird is the original and rightful general partner. Fernando
L. Sumaza & Co., Inc. (" Sumaza"), however, claims
that R. Bird withdrew as general partner when its certificate
of incorporation was cancelled and, as a result, Sumaza
became the general partner of Juncos Ltd. Under this belief,
Sumaza attempted to engage in business as the general partner
of Juncos Ltd., and submitted to the federal government an
application to be recognized as its general partner. The
plaintiffs have brought claims for declaratory judgment and
injunctive relief to declare that R. Bird is the lawful
general partner of Juncos Ltd,, and to prevent Sumaza from
acting as general partner of this entity. Sumaza has filed
mirror-image counterclaims against the plaintiffs for
declarator judgment and injunctive relief, seeking the
diametrically opposite result.
plaintiffs and Sumaza have now cross-moved for summary
judgment. For the reasons which follow, the plaintiff's
motion for summary judgment shall be ALLOWED, and
Sumaza's motion for summary judgment shall be DENIED.
Ltd. was formed on April 9, 1985, pursuant to a certificate
of limited partnership filed with the Massachusetts Secretary
of State. R. Bird, a corporation organized under the laws of
Puerto Rico, became the sole General Partner of Juncos Ltd.
as of the date of its formation. Juncos Ltd.'s declared
purpose is to provide housing in Juncos, Puerto Rico for low-
and moderate-income families and displaced families, under
the authority of the Farmers Home Administration pursuant to
Section 515 Program of the National Housing Act, 12 U.S.C.
§ § 1701, et seq. The U.S. Department of Housing
and Urban Development (" HUD") also assists Juncos
Ltd. with subsidy payments under the Section 8 Program. The
Office of Rural Development of the U.S. Department of
Agriculture (" USDA/RD") now administers the
Section 515 Program.
31, 1985, Juncos Ltd. executed a Restated Certificate and
Agreement of Limited Partnership of Juncos Limited Dividend
Partnership (the " Restated Agreement" ').
Under the Restated Agreement, Summit Company ("
Summit") became a Class B Limited Partner, and ten other
organizations became Class A Limited Partners of the Juncos
Ltd. limited partnership. R. Bird remained the
partnership's sole General Partner.
Restated Agreement provides that the General Partner "
shall not sell, assign, encumber or otherwise dispose of all
or any part of its interest in the Partnership, ... except
with the written consent of a Majority in Interest of the
Limited Partners and the written consent of HUD and the
Lender, if required." As concerns a corporate General
Partner, Section 14.1.1(b) of the Restated Agreement provides
that a disposal of its interest in Juncos Ltd. occurs in the
event of, inter alia, " the dissolution, liquidation or
combination, by merger or otherwise, of the corporation
Restated Agreement also grants Limited Partners the right to
appoint one or more persons as General Partner by unanimous
vote upon the disposal of a General Partner's interest.
Prior to the appointment of a successor, the Class B Limited
Partner " automatically and immediately upon the
[dissolution of a corporate General Partner] ... shall be
vested with all of the power, duties, authority and
obligations hereunder ... to act as General Partner ... until
a successor General Partner has been admitted to the
the Restated Agreement prescribes the process for the giving
of notice to all partners. Notice is effective " if
given in writing and ... deemed to have been given only when
delivered by personal service or deposited in the United
States mail and sent by certified or registered mail, return
receipt requested" and addressed to the partners'
given addresses in Annex A or the Restated Agreement.
1983, 1984, 1988 and 1989, Juncos Ltd. executed loan
agreements with the Farmers Home Administration and the
USDA/RD, which contracts were subject to present and future
regulations that might be administratively adopted from time
to time. In audition to complying with the regulations,
Juncos Ltd. was required to obtain the U.S. government's
consent prior to changing the membership of Juncos Ltd. by
either admitting or permitting the withdrawal of any partner,
or by permitting any General Partner to maintain a less than
five percent (5%) financial interest in the partnership. R.
Bird signed each of the loan agreements as the General
Partner for Juncos Ltd.
Ltd. filed three amendments to the Restated Agreement. Each
amendment added Class A Limited Partner. None of these
amendment added Bracero LP, which had no interest in Juncos
Ltd. as a Limited Partner. At all relevant times, Felix
Alvarez Bracero was the owner and president of Proper
Management, the managing agent of Juncos Ltd.'s property.
Mr. A.lvarez Bracero is also the owner and president of
plaintiff Bracero LP.
7, 2010, the owner and president of R. Bird, Ricardo Bird,
died and left his ownership interest in R. Bird to his wife,
Maria Bird, and their sons. Mrs. Bird acted as president of
R. Bird as of the date of her husband's death, until she
appointed Mr. Alvarez Bracero as president in 2014.
December 2010, January 2011 and August 2013, Bracero LP
acquired the interests of three Class A limited partners,
including that of Paul Mantos ("
November 1, 2011, Mrs. Bird (as president of R. Bird) and Mr.
Alvarez Bracero (as president of Alvarez Bracero GP, LLP)
(" Bracero GP") executed a document which they
intended to serve as the Fourth Amendment of the Restated
Agreement (" the Fourth Amendment"). The Fourth
Amendment provided that R. Bird withdrew as General Partner,
and transferred its general partnership interest to Bracero
GP. Excepting only this change in General Partner, the Fourth
Amendment ratified and confirmed the Restated Agreement,
including its approval requirements for the transfer of a
General Partner's partnership interest. The USDA/RD.
however, never approved the Fourth Amendment's change.
11, 2013, the Puerto Rico Secretary of State cancelled R.
Bird's certificate of incorporation on account of the
entity's failure to file annual reports. Following R.
Bird's corporate cancellation, Sumaza contacted Summit,
believing that it could become Juncos Ltd.'s General
Partner by purchasing Summit's Class B Limited Partner
interest. Sumaza's plan proceeded on the assumption that
R. Bird's corporate cancellation triggered the
dissolution clause of the Restated Agreement, see
supra, and thereby resulted in Summit becoming the
successor General Partner. In September 2013, Sumaza
contracted with Summit to acquire its interest in Juncos Ltd.
Summit nor Sumaza sought R. Bird's approval for this
transfer. Sumaza did, however, transmit letters to the
Limited Partners to provide them with notice of and an
opportunity to oppose Sumaza's appointment as General
Partner. Sumaza complied with all of the notice requirements
under the Restated Agreement, including using certified mail,
return receipt requested, and addressing the letters to the
addresses referenced in the Restated Agreement. Two of the
limited partners, Joseph Keefe and Michael Kelly, failed to
return their notices of receipt, and the letters addressed to
them were returned " unclaimed."
alleges that Bracero LP received notice of Sumaza's
request for approval to become General Partner via e-mail.
Sumaza points to an October 17, 2013 e-mail between itself
and former Class A Limited Partner Mantos, discussing the
attached request for approval of Sumaza's appointment.
Mantos was confused by Sumaza's request, however, because
he believed that his interest had already been transferred to
Bracero LP, and accordingly forwarded the e-mail to Bracero.
November 1, 2013, R. Bird was corporately reinstated pursuant
to Puerto Rico law. That same day, the Secretary of State of
the Commonwealth of Puerto Rico issued a certificate of good
standing for P. Bird.
December 5, 2013, counsel for Juncos Ltd. and Sumaza, James
Owen Casey (" Attorney Casey"), notified the
USDA/RD by letter that Sumaza had assumed General Partner
status in Juncos Ltd. by purchasing Summit's successor
interest therein and by filing an Amendment to the Restated
Agreement that named Sumaza the General Partner. In that
letter, Attorney Casey was " requesting" that the
USDA/RD recognize Sumaza as Juncos Ltd.'s General
Partner. On April 10, 2014, however, the Housing Program
Director of the USDA/RD informed Sumaza that USDA/RD was
suspending its processing of Sumaza's request for
approval as General Partner pending resolution of the instant
documentation of the identity of Juncos Ltd.'s General
Partner is conflicting, to say the least. The Internal
Revenue Service Tax Forms 1065 and their corresponding
Schedule K-1s from 2011 through 2014 identify R. Bird as
Juncos Ltd.'s General Partner. Additionally, on November
28, 2014, R. Bird filed a USDA/RD Form 3560 bearing Felix
Alvarez's signature as the " president" of R.
Bird, In contrast, the Juncos Ltd. annual reports from 2009
through 2011, filed with the Massachusetts Secretary of
State, identify Sumaza as the entity's General
Partner. Sumaza's holding itself out as
General Partner by filing annual reports that name itself as
such represents the source of the present dispute.
result of the confusion over Summit's transfer of its
interest to Sumaza, the USDA/RD contacted R. Bird and Bracero
by letter dated February 18, 2014. In that letter, the
government asserted that Juncos Ltd. was in violation of USDA
regulations, as well as its 1983 and 1989 loan agreements,
for failure to obtain the USDA/RD's consent to
Summit's purported transfer of its interest to Sumaza.
The USDA/RD also noted that it was unable to locate records
with the Massachusetts Secretary of State to support such
before the Court are the plaintiffs' motion for summary
judgment and Sumaza's cross-motion for summary judgment,
each addressed to the single and dispositive issue of which
entity is Juncos Ltd.'s true General Partner. Having
heard oral argument on April ...