Heard: December 9, 2016.
action commenced in the Superior Court Department on April
motion for summary judgment was heard by Peter M. Lauriat,
J.; the case was tried before Robert B. Gordon, J., and a
motion for judgment notwithstanding the verdict was heard by
E. Curtis, Jr., for the defendant.
M. Fantozzi (David M. Zucker also present) for the plaintiff.
Present: Milkey, Massing, & Sacks, JJ.
defendant, Carlos Tellez-Bortoni, appeals from a judgment
entered against him in favor of the plaintiff, Copley Place
Associates, LLC (Copley), on claims for fraud and violation
of G. L. c. 93A. He argues that a judge of the Superior Court
erred in awarding Copley partial summary judgment against him
on liability. We conclude that Copley's motion failed to
establish as undisputed fact that Copley relied to its
detriment on false representations made by Tellez-Bortoni. We
therefore vacate the judgment and remand for further
claims arose out of a failed venture in which Irish Pub
Group, Inc. (IPG), was to have operated a restaurant in space
leased from Copley in its mall located in Boston.
Tellez-Bortoni signed the lease on IPCs behalf. Section 24.11
of the lease stated, "If Tenant is or will be a
corporation, the persons executing this Lease on behalf of
Tenant hereby covenant and warrant that . . . the person
signing this Lease on behalf of the corporation is an officer
of Tenant, and is duly authorized to sign and execute this
Lease." Sometime after the lease was signed,
Tellez-Bortoni informed Copley that one Raymond Houle was
"a part of [IPG], " causing Copley to inform a bank
that Houle could negotiate a large check Copley had issued to
IPG as a portion of a "Landlord's Contribution"
provided for in the lease. Houle deposited the check in
not use the funds to further the project as required by the
lease, the restaurant never opened, and Copley sued IPG,
Tellez-Bortoni, Houle, and others on a variety of theories,
seeking to recover amounts due under the lease and other
damages. IPG never denied that Tellez-Bortoni's signature
sufficed to bind IPG to the lease; instead, IPG failed to
appear and was defaulted. After obtaining default judgments
against IPG and all other defendants except Tellez-Bortoni,
the judge awarded Copley partial summary judgment against
Tellez-Bortoni on liability for fraud and violation of G. L.
c. 93A, premised on Copley's claimed detrimental reliance
on his assertedly (1) false representations that he was an
officer of IPG, duly authorized to sign the lease, and (2)
misleadingly incomplete statement concerning Houle's role
with IPG. After a trial on damages presided over by a
different judge, a jury returned a verdict of $865, 060.44,
to which the judge added $126, 440.09 in attorney's fees
and costs. Tellez-Bortoni moved for judgment notwithstanding
the verdict (JNOV) and, upon the trial judge's denial of
that motion, Tellez-Bortoni filed this appeal, in which he
challenges the partial summary judgment ruling.
briefly reviewing the law of fraud or deceit,  we discuss in
turn the summary judgment record regarding
Tellez-Bortoni's representations to Copley (1) as to his
status as an IPG officer with authority to sign the lease,
and (2) as to Houle's status vis-a-vis IPG.
a deceit action, the plaintiff must prove 'that the
defendant made a false representation of a material fact with
knowledge of its falsity for the purpose of inducing the
plaintiff to act thereon, and that the plaintiff relied upon
the representation as true and acted upon it to his
damage.'" Danca v. Taunton Sav. Bank, 385
Mass. 1, 8 (1982), quoting from Barrett Assocs.
v. Aronson, 346 Mass. 150, 152 (1963). "Such
reliance by the plaintiff must be reasonable."
Masingill v. EMC Corp., 449 Mass. 532, 540 (2007).
Further, "[i]f a statement of fact which is susceptible
of actual knowledge is made as of one's own knowledge and
is false, it may be the basis for an action of deceit without
proof of an actual intent to deceive." Pietrazak v.
McDermott, 341 Mass. 107, 110 (1960) . See Snyder v.
Sperry & Hutchinson Co., 368 Mass. 433, 444 ...