Superior Court of Massachusetts, Suffolk, Business Litigation Session
Joseph R. Mullins
Joseph E. Corcoran et al No. 136529
February 1, 2017
MEMORANDUM OF DECISION AND ORDER ON THE
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Mitchell H. Kaplan, Justice of the Superior Court.
court borrows the following introduction from one of the many
other summary judgment decisions that it has written in
connection with the numerous litigations that these parties
have filed against one another. " Beginning in the early
1970s, the plaintiff Joseph R. Mullins and the defendants
Joseph E. Corcoran and Gary A. Jennison, through many
different manner of business entities, operated a very
successful real estate business. In 1987, they entered into
an agreement to separate, to the extent possible,
Mullins' interests from those of Corcoran and Jennison
(the 1987 Agreement). However, many of their ventures were
apparently not susceptible to separation and continued in
joint ownership. This case involves entities of that nature.
Since 2001, from this court's perspective, it appears
that the principal business of these individuals and their
related businesses has been to sue one another. This is, at
least, the fifth such case." The instant case is now
before the court on Mullins' motion for summary judgment.
another summary judgment decision the court provided the
following description of the parties' prior business
arrangements and their 1987 Agreement, which is also equally
applicable to this dispute.
From the early 1970s until 1987, Corcoran, Mullins, and
Jennison operated a successful real estate business that
involved the development and management of multi-unit
affordable or mixed-income housing, as well as other real
estate projects. For the most part, each project was owned by
a limited partnership of which Corcoran, Mullins, Jennison,
Inc. (CMJ) was the general partner. Other related entities
(collectively with CMJ, the Companies) contracted to provide
services to the projects, including construction, management
and other related services. Corcoran, Mullins, and
Jennison were the sole shareholders of the Companies, owning,
respectively, 60%, 20% and 20% of the shares of each.
In 1987, after Mullins expressed his desire to leave the
business, the three of them, with the assistance of counsel,
negotiated the separation and going-forward
Agreement. Pursuant to its terms, ownership of
some of the projects was transferred to Corcoran and Jennison
(or entities jointly owned by them) and others to Mullins (or
entities owned by him), but ownership of many projects
remained as it had been, i.e., jointly owned by all three
through limited partnerships of which CMJ was the general
partner. These projects would continue to be serviced by the
related Companies, also jointly owned by Corcoran, Jennison
and Mullins, in the manner described above.
The 1987 Agreement begins with three whereas clauses, the
last two of which provide:
WHEREAS the parties wish to preserve and continue the
business of Corcoran, Mullins, Jennison, Inc. ("
CMJ") with respect to those endeavors listed on the
schedule attached hereto . . . and to preserve and continue
the businesses of CMJ Management Company, Inc. (" CMJ
Management"), CMJ Builders, Inc. (" CMJ
Builders"), CMJ Construction Corp. (" CMJ
Construction"), CMJ Equipment Corp. (" CMJ
Equipment"), CMJ Peninsula Construction, Inc. ("
Peninsula") and Bay Pines Development Company, Inc.
(" Bay Pines") (together with CMJ, the "
Companies") with respect to those endeavors listed on
the schedules attached hereto . . . and
WHEREAS the parties wish to conduct other aspects of their
business separately hereafter, and accordingly wish to
withdraw from joint sponsorship, management and/or ownership
[of] the projects listed on the attached schedules
respectively entitled " Cor-Jen Projects, " "
C& J Entities" and " JRM Projects."
Consistent with the latter Whereas clause, Sections 1(a)-(f)
of the Agreement describe the mechanism by which ownership
interests in the projects that will no longer be jointly
owned will be transferred, service contracts for those
projects that will be assigned to Corcoran and Jennison owned
entities (the C& J Entities and Cor-Jen) or Mullins owned
entities (JRM), as the case may be, and the liabilities
associated with each project born by the parties (or the
corresponding entities) that now own the projects . . .
Consistent with the first Whereas clause quoted above,
Section 1(g) provides that: " The individuals will
retain their present stock ownership interests in the
Companies. The business operations and conduct of the
Companies will henceforth be governed by the provisions of
this Agreement." Section 3 and 4 then proceed to
describe how, going forward, the CMJ Projects, i.e., the
projects as to which ownership will be presented among the
three parties as it existed at the time of the 1987
Agreement, will operate and the Companies will be managed.
More specifically, Section 3 states that CMJ Management will
continue to manage the CMJ Projects and CMJ Construction, CMJ
Builders, and Peninsula will continue to be the contractors
to them. Furthermore, the " terms and conditions"
of these " arrangements shall be those presently in
effect, and no change in such terms shall be effected without
consent of all the parties hereto." This section goes on
to state that " [a]ll business dealings of and among any
one or more of" the parties to the agreement, the
Companies (other than CMJ Equipment), Cor-Jen, the C& J
Entities, and JRM " shall be conducted in scrupulous
good faith according to good established business practices .
. . It is the intent of this Agreement that each of the
parties hereto be entitled to enjoy all the economic benefits
of the Companies pro rata, in accordance with their
present stock ownership, and in accordance with the
provisions of Section 4(3) [sic] and 4(4) [sic]."
(Emphasis in original.) Lastly, Section 3 prohibits CMJ, CMJ
Builders, CMJ Construction, or Bay Pines from entering into
any new ventures " without the unanimous consent of the
Section 4(a), echoing Section 1(g), provides that: "
Stock ownership of the individuals in the Companies shall be
maintained in the current proportions and no issue or
redemption of stock or other capital event shall be effected
in any of the Companies without the unanimous consent of all
of the parties hereto." Subsection (5) further provides
that: " None of the Companies will . . . guaranty the
obligations of any one or more of the parties hereto, JRM,
Cor-Jen or any other entity."
litigation involves one of the CMJ Projects-the Cobble Hill
BACKGROUND OF THIS LITIGATION
following summary of relevant facts, which are material to
the pending motion for summary judgment, are taken from the
parties' 142-page, 350-paragraph Statement of Undisputed
Material Facts, the vast majority of which are actually
disputed by one side or the other. The court has attempted to
distill from this dense pleading the facts necessary to
consider the motion, viewed in the light most favorable to
Corcoran and Jennison, the non-moving parties.
Cobble Hill Apartments are located in Sommerville. This
property was owned by a Massachusetts limited partnership,
Cobble Hill Apartments Company, LLP (CHAC), and CMJ was the
general partner of CHAC. When the 1987 Agreement was
executed, this property had a 224-unit apartment building on
its east side and a convenience store and a few other small
retail businesses on its west side. In 2003, Corcoran,
Jennison and Mullins agreed to form Cobble Hill Center, LLC
(CH Center), a limited liability company the sole member of
which is Cobble Hill Trust; the beneficiaries of that trust,
through another intermediary entity, are Corcoran, Jennison,
and Mullins, in their traditional 60/20/20 percent
arrangement. CH Center is managed by CMJ. Simultaneous with
the formation of CH Center, CHAC created a separate parcel
encompassing the west ...