Superior Court of Massachusetts, Suffolk, Business Litigation Session
Kirin Produce Co., Inc.
Lun Fat Produce, Inc. et al. as Trustee of Tam Realty Trust et al. No. 136587
February 7, 2017
MEMORANDUM AND ORDER ALLOWING MOTIONS TO
Kenneth W. Salinger, Justice of the Superior Court.
Produce Co., Inc., alleges that it contracted with Lun Fat
Produce, Inc., and its owner Peter Tam to purchase Lun
Fat's assets and to lease for three years and then
purchase the property where Lun Fat is located. Kirin asserts
that Tam and Lun Fat refused to carry out their alleged
contractual obligations to Kirin, and that Tam instead agreed
to sell all shares of Lun Fat stock and the property in
question to Richard Chen. Kirin seeks specific performance of
its alleged contract, a declaratory judgment that Lun Fat and
Tam entered into an enforceable agreement with Kirin,
liquidated damages for breach of contract, and compensatory
and punitive damages under G.L.c. 93A, § 11. Mr. Chen
intervened to protect his interests, prompting Kirin to seek
declaratory relief against him as well.
have moved to dismiss all claims under Mass.R.Civ.P.
12(b)(6). Tam and Lun Fat argues that the facts alleged in
the complaint make clear that they never entered into any
enforceable contract with Kirin, and thus Kirin has not
stated any claim upon which relief can be granted. Chen joins
in Tam's arguments.
Court will ALLOW the motions to dismiss because Kirin has not
alleged facts plausibly suggesting that Kirin, Tam, and Lun
Fat entered into a contractual agreement that satisfies the
Statute of Frauds. To the contrary, the detailed allegations
in the amended complaint make clear that Kirin never entered
into an enforceable agreement with Mr. Tam and Lun Fat. Since
there is an actual controversy among the parties and Kirin
has standing to bring this action, the Court will order that
judgment enter declaring that Kirin and Defendants did not
enter into an enforceable contract and dismissing all other
claims with prejudice.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must allege facts that " plausibly suggest" the
plaintiff has a viable claim. Lopez v. Commonwealth,
463 Mass. 696, 701, 978 N.E.2d 67 (2012), quoting
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636,
888 N.E.2d 879 (2008), and Bell A. Corp. v. Twombly,
550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
" Conclusory allegations" that a defendant has
acted illegally are not enough; judges must disregard such
assertions and " focus on whether the factual
allegations plausibly suggest an entitlement to relief."
Maling v. Finnegan, Henderson, Farabow, Garrett &
Dunner, LLP, 473 Mass. 336, 339, 42 N.E.3d 199 (2015),
quoting Curtis v. Herb Chambers I-95, Inc., 458
Mass. 674, 676, 940 N.E.2d 413 (2011).
deciding a motion to dismiss under Rule 12(b)(6), a judge
must " accept as true the facts alleged in the . . .
complaint" --or that are apparent from documents
attached to, referenced in, or otherwise relied upon in
framing the complaint --as well as any favorable inferences
that reasonably can be drawn from them, " Partanen
v. Gallagher, 475 Mass. 632, 635, 59 N.E.3d 1133 (2016),
quoting Galiastro v. Mortgage Elec. Registration Sys.,
Inc., 467 Mass. 160, 164, 4 N.E.3d 270 (2014).
where a " complaint sets out with clarity and precision
the detailed factual allegations [that] the plaintiff
contends entitle him to relief), " dismissal is
appropriate " if [those] allegations 'clearly
demonstrate that plaintiff does not have a claim.'"
Fabrizio v. City of Quincy, 9 Mass.App.Ct. 733, 734,
404 N.E.2d 675 (1980), quoting 5 Wright & Miller, Federal
Practice and Procedure: Civil § 1357 at 604 (1969);
accord Harvard Crimson, Inc. v. President and Fellows of
Harvard Coll., 445 Mass. 745, 748, 840 N.E.2d 518
state a viable claim to enforce a contract, or to obtain
damages for alleged breach of contract, a plaintiff's
complaint must allege facts plausibly suggesting that the
parties entered into a binding contract. " Except in
circumstances not relevant here, 'the formation of a
contract requires a bargain in which there is a manifestation
of mutual assent to the exchange and a
consideration.'" Kirkpatrick v. Boston Mut. Life
Ins. Co., 393 Mass. 640, 652, 473 N.E.2d 173 (1985),
quoting Restatement (Second) of Contracts § 17 (1981).
" [T]he element of agreement or mutual assent is often
referred to as a 'meeting of the minds.'"
I& R Mech., Inc. v. Hazelton Mfg.. Co., 62
Mass.App.Ct. 452, 455, 817 N.E.2d 799 (2004), quoting
Restatement (Second) of Contracts § 17 comment c (1981).
" The manifestation of mutual assent between contracting
parties generally consists of an offer by one and the
acceptance of it by the other." Id. ; accord
Restatement (Second) of Contracts § 22(1) (1981).
amended complaint alleges the following facts. Kirin and Lun
Fat both sell produce on a wholesale and retail basis. In May
2015 these companies began to discuss the possibility of
Kirin purchasing Lun Fat's business assets as well as the
property where Lun Fat is located, which is owned by the Tam
Realty Trust (the " Trust Property"). The
negotiations went nowhere for fifteen months. In August 2016
Kirin learned that a group of investors from New York had
expressed interest in buying Lun Fat and the Trust Property.
This prompted Kirin to make a series of three proposals
regarding terms under which it would be willing to buy Lun
Fat's assets, to lease the Trust Property for three
years, and to purchase the Trust Property at the end of that
three-year period. Kirin laid out the terms of these
proposals in spreadsheets that it sent to Peter Tam on August
22, September 7, and September 12, 2016. Several days later
(September 15), a lawyer for Mr. Tam and Lun Fat (Ted Wong)
responded in an email specifying nine terms in Kirin's
most recent proposal that Tam wanted to change. The next day
(September 16) Kirin replied by email, stating that it was
" OK" with five of the proposed changes, and
proposing new terms with respect to the other four
items. Two days later (September 18)
Kirin's principals had dinner with Tam. That evening Mr.
Tam made an oral offer to sell Lun Fat and the Trust Property
if Kirin would agree to all nine of the terms outlined in Mr.
Wong's September 15 email. Several days later (September
23) Mr. Wong sent an email stating that Mr. Tam is still
" NOT ready to accept the latest Offer on the table,
" and further explaining Tam's position with respect
to the four issues as to which the parties were still
negotiating and that Wong had addressed in his prior email.
The next day (September 24) Mr. Chan sent an email stating
that Kirin " accepted" all nine of the terms that
Lun Fat had proposed in Mr. Wong's September 15 email,
and also stating that Kirin wanted to add a new " item
#10" that would revise the liquidated damage terms
previously listed in Kirin's spreadsheet.
first three proposals by Kirin (on August 22, September 7,
and September 22) were not offers capable of being accepted
by Lun Fat and Mr. Tam. All three of the spreadsheets
proposing Kirin's terms of a possible deal stated that
they were " Draft Only, Subject to Confirmation,
Verification & Change by both Seller & Buyer."
The term sheets also stated that " All dates, $$ and
Terms are estimated ONLY, to be finalized by both parties!!
Subject to change[.]" Since Kirin made clear in all
three of these proposals that it had no " present
intention to be bound" by the terms it had outlined,
these proposals were insufficient " to create an
enforceable contract." See Lambert v. Fleet Nat.
Bank, 449 Mass. 119, 123, 865 N.E.2d 1091 (2007),
quoting Situation Mgt. Sys., Inc. v. Malouf, Inc.,
430 Mass. 875, 878, 724 N.E.2d 699 (2000).
September 15 email from Lun Fat's lawyer does not appear
to express any intent to be bound either. This email
identifies nine specific items in the last term sheet from
Kirin that Mr. Tam would " like to change." But
nothing in the email clearly states that Tam was offering to