United States District Court, D. Massachusetts
HAVEN PEAL ESTATE GROUP, LLC, Plaintiff-Counterclaim Defendant,
BELL ATLANTIC MOBILE OF MASSACHUSETTS CORPORATION, LTD. d/b/a VERIZON WIRELESS, Defendant-Counterclaim Plaintiff.
NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE
case arises out of a dispute over an electric bill.
Plaintiff/counterclaim-defendant, Haven Real Estate Group,
LLC ("Haven"), leases space to
defendant/counterclaim-plaintiff, Bell Atlantic Mobile of
Massachusetts Corporation, Ltd. which does business as
Verizon Wireless ("Verizon"). The lease agreement
states that Verizon will "pay for its own power
consumption used thirty (30) days after receipt of an
invoice". Both parties allege that the other failed to
pay its portion of the electric bill for the property and
thereby 1) breached its contractual obligations, 2) was
unjustly enriched and 3) engaged in deceptive and unfair
trade practices in violation of M.G.L. c. 93A ("Chapter
June, 2016, Verizon moved for summary judgment which Haven
opposed. In February, 2017, this Court granted summary
judgment of dismissal of Haven's claims and entered
judgment finding that Haven had breached the lease.
Conversely, it determined that summary judgment was
unwarranted with respect to 1) the amount of damages owed to
Verizon for Haven's breach of contract, 2) Verizon's
unjust enrichment counterclaim and 3) Verizon's Chapter
April, 2017, Verizon filed a motion for partial summary
judgment on damages. Haven opposed that motion. Verizon, in
turn, moved to strike an affidavit filed in support of
Haven's opposition. Verizon's motions to strike and
for summary judgment are the subject of this order. For the
reasons that follow, the motion to strike will be allowed and
the motion for summary judgment will be denied.
Motion to Strike
correctly contends that portions of the affidavit of
Haven's manager, Albert Adriani, upon which Haven relies
in its opposition to summary judgment, should be stricken. As
Verizon points out, paragraph numbers 7 and 10-19 of that
affidavit directly conflict with Adriani's answers to
interrogatories and Haven gives no explanation for why the
testimony changed. Accordingly, Verizon's motion to
strike will be allowed. Colantuoni v. Alfred Calcagni
& Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994).
Motion for Summary Judgment
moves for partial summary judgment on damages with respect to
its breach of contract claim. Verizon contends that it is
owed approximately $24, 000 as well as interest because,
after it overpaid the electric bill at the property, Haven
kept the reimbursement in violation of the contract. Haven
responds that a genuine issue of material fact remains with
respect to the amount of damages owed because, during the
relevant time period, 1) it is unclear how much electricity
Verizon used and 2) Haven paid portions of Verizon's
electric bill. In support of its position, Haven submits tax
returns showing that it paid utilities in the amount of
approximately $94, 000 in 2011, $56, 000 in 2012 and $154,
000 in 2013.
contention that a genuine issue of material fact remains with
respect to the amount of damages is well taken. As the moving
party, Verizon bears the burden of showing "that there
is no genuine dispute as to any material fact and that [it]
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Pursuant to Massachusetts law,
"contract damages should not exceed the value of the
benefit of which [the wronged party] was deprived."
Selmark Assocs., Inc. v. Ehrlich, 5 N.E.3d 923,
937-38 (Mass. 2014). The tax returns are evidence that create
a genuine issue of material fact with respect to whether
Haven paid some of Verizon's electric bills. If Haven did
so, then Verizon's damages would need to be adjusted to
account for Haven's payment. Otherwise Verizon would
receive a windfall instead of being "put in as good a
position as if the other party had fully performed."
Id. at 937. Because a genuine issue of material fact
persists with respect to the amount of damages, Verizon is
not entitled to judgment as a matter of law and its motion
for partial summary judgment will be denied.
accordance with the forgoing, Verizon's motion to strike
(Docket No. 70) is ALLOWED but its motion for partial summary
judgment (Docket No. 60) is DENIED.