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Copley Place Associates, LLC v. Tellez-Bortoni

Appeals Court of Massachusetts, Suffolk

March 16, 2017

COPLEY PLACE ASSOCIATES, LLC
v.
CARLOS TELLEZ-BORTONI.

          Heard: December 9, 2016.

         Civil action commenced in the Superior Court Department on April 24, 2012.

         A 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 him.

          Robert E. Curtis, Jr., for the defendant.

          Martin M. Fantozzi (David M. Zucker also present) for the plaintiff.

          Present: Milkey, Massing, & Sacks, JJ.

          SACKS, J.

         The 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 proceedings.

         Background.

         Copley's 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 IPG's account.

         IPG did 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.

         Discussion.

         After briefly reviewing the law of fraud or deceit, [1] 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.

         "In 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 ...


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