JNM HOSPITALITY, INC.
EDWIN McDAID & others , trustees. 
Heard: January 19, 2016.
action commenced in the Superior Court Department on January
motion for summary judgment was heard by Paul D. Wilson, J.,
and entry of separate and final judgment was ordered by him.
William E. Gens for the plaintiff.
A. Goodman for the defendants.
Present: Grainger, Rubin, & Milkey, JJ.
an appeal from the dismissal of a claim brought by the
commercial tenant of a condominium unit owner against the
condominium trustees. The plaintiff, JNM Hospitality, Inc.
(JNM), appeals from the summary judgment in favor of the
defendant trustees of The Village at Forge Pond Condominium
Trust (collectively the trust) ordered by a judge of the
Superior Court. JNM asserts that the trust's execution of
a license agreement allowing employees of an abutting United
States Postal Service (USPS) facility to use spaces in the
vehicle parking lot of the condominium where JNM's
restaurant was located constituted intentional interference
in JNM's contract with its landlord. We disagree, and
affirm the judgment.
purposes of our consideration of the allowance of summary
judgment, the facts are not in dispute. JNM operated a
restaurant and bar on premises leased from Canton Viaduct,
LLC, as assignee of the owner of two commercial units in The
Village at Forge Pond Condominium, a mixed-use condominium
complex in Canton. The trust is the condominium's
governing entity. See G. L. c. 183A, §§ 8
(i), 10. At issue are the provisions of JNM's
lease governing the ability to provide vehicle parking spaces
to its customers.
lease provisions relating to the number and location of
parking spaces are both unclear and, due to handwritten
revisions,  difficult to decipher. The parties
dedicate significant energy and many strained arguments to
the meaning of lease provisions relating to this issue, with
particular emphasis on so-called nonexclusive parking, i.e.,
spaces not reserved for any particular person or entity.
purposes of reviewing factual allegations in the motion for
summary judgment we adopt, as the law requires, the nonmovant
plaintiff's wording of the contract. See Juliano
v. Simpson, 461 Mass. 527, 529-530 (2012), quoting
from Augat, Inc. v. Liberty Mut. Ins. Co.,
410 Mass. 117, 120 (1991). Thus, we assume that the lease
contemplated not only eleven parking spaces dedicated
exclusively to JNM's customers,  but also JNM's
right to allow its customers to park in other nonexclusive
spaces, some sixty-six in number, available to visitors,
owners, and residents of the condominium on a first-come,
accept JNM's assertion that the license agreement
allowing USPS employees to use a maximum of
fifteen spaces in the condominium
property's parking lot made available fifty-one rather
than sixty-six nonexclusive spaces to JNM's
customers.Additional facts appear below as they
pertain to the issues.
for intentional interference with contractual relations
requires proof of four elements: (1) a contract between the
plaintiff and a third party, (2) the defendant's
purposeful inducement of the third party to breach the
contract in whole or in part, (3) the interference must be
not only intentional, but also improper in motive or means of
accomplishment, and (4) resulting harm to the plaintiff.
G.S. Enterprises, Inc. v. Falmouth Marine,
Inc., 410 Mass. 262, 272 (1991), citing United Truck
Leasing Corp. v. Geltman, 406 Mass. 811,
812-817 (1990) .
first element, the existence of a contract, is undisputed. On
this record, however, JNM has not raised a genuine issue with
respect to the second element, an induced breach of the lease
or interference with the landlord's performance of its
lease contains no guarantee, or even an inference, that the
nonexclusive spaces will be available at any particular time
or in any specified number; viewed in the light most
favorable to JNM, the lease allows restaurant customers to
compete with other visitors, residents and unit owners for
available nonexclusive spaces in the lot. The lease contains
no provision that precludes another unit owner or the trust
from providing similar access to nonexclusive spaces to other
tenants, or to third parties. The lack of a
guarantee that these spaces, or any of them, will be
available at a given time does not render potential access
under the contract meaningless, but it most certainly defeats
a claim of interference when other individuals use what the
parties have agreed explicitly are "nonexclusive"
spaces. In this context it is notable that
JNM's entire claim relies on an eight-word phrase,
"[n]otwithstanding the common use of the parking
facilities, " presented as a preamble to introduce the
lease provision granting eleven spaces for the exclusive use
of restaurant customers.
conflated conduct by a stranger to the contract, conduct that
JNM claims has frustrated its own unilateral expectation of
possible use of a greater number of nonexclusive spaces than
became available in the condominium parking lot, with conduct
that "interfere[d] with the [other contracting]
party's . . . performance." Harrison v.
NetCentric Corp., 433 Mass. 465, 478 n.15 (2001),
quoting from Restatement (Second) of Torts § 766 comment
k, at 12 (1979). It is undisputed that the landlord itself
(Canton Viaduct, LLC) engaged in neither an act nor an
omission, and it is equally clear that the USPS license did
not prevent the landlord from performing its contractual
stated, the failure to raise a genuine issue with respect to
the element of a breach is fatal to JNM's case. While it
is therefore unnecessary to address the remaining elements,
the record provides additional independent bases for the
allowance of summary judgment.
Improper means or motive.
record provides only two possible motives for the trust's
license agreement with USPS: (1) containment of previous
unauthorized use of the lot by USPS employees, and (2)
generation of revenue for the condominium.Neither of
these satisfies the legal standard to establish an improper
motive. See Pembroke Country Club, Inc. v.
Regency Sav. Bank, F.S.B., 62 Mass.App.Ct. 34, 39
(2004). With respect to improper means, JNM's reliance on
an alleged by-law violation, unaccompanied by any actual
reprehensible conduct, presents no genuine dispute under our
law, KACT, Inc. v. Rubin, 62 Mass.App.Ct.
689, 699-700 (2004), and merely trivializes the type of
conduct that is intended to be actionable.
record reveals undisputed use of the parking spaces by USPS
employees for the previous decade, rendering any harm
to JNM from the license, which simply formalized an existing
situation, at best "speculative or conjectural."
Chemawa Country Golf, Inc. v. Wnuk, 9
Mass.App.Ct. 506, 510 (1980) .
MILKEY, J. (concurring in part).
that JNM Hospitality, Inc. (the restaurant), cannot prevail
on the intentional interference with contractual relations
claim it brought against the trustees of The Village at Forge
Pond Condominium Trust (the trust). However, I arrive at that
conclusion by a narrower path.
special permit under which the condominium complex was built
required that there be ninety-one parking spaces for the
residents of the residential units and the customers and
staff of the commercial units (one space per residential
bedroom, plus one space per 250 square feet of commercial
space). Pursuant to that formula, the commercial units
occupied by the restaurant accounted for eleven of the
mandated ninety-one parking spaces. Consistent with that
figure, the owner of the two restaurant units claimed an
entitlement to eleven parking spaces adjacent to its units,
 and executed a lease purporting to
give the restaurant exclusive use of those spaces. Those
eleven spaces were then marked with signs designating them
for the restaurant's exclusive use.
least for purposes of this appeal, I accept the
restaurant's position that the lease did not prohibit it
from using spaces elsewhere in the parking lot if they were
available. This is evidenced by the fact that the parties to
the lease crossed out a draft provision that expressly would
have limited the restaurant to using only its dedicated
eleven spaces. However, although the lease does not appear to
have prohibited the restaurant from making use of other
available spaces, neither did it provide the restaurant any
enforceable entitlement to such spaces. Indeed, had the
landlord purported to give the restaurant an entitlement to
more than its pro rata share, it would have been giving away
parking rights that it did not possess. Under these