Superior Court of Massachusetts, Suffolk, Business Litigation Session
Bay Colony Property Development Company et al.
Headlands Realty Corporation et al No. 137202
MEMORANDUM AND ORDER DENYING DEFENDANTS' MOTION
TO DISMISS AND DENYING PLAINTIFFS' CROSS MOTION TO
Kenneth W. Salinger, Justice of the Superior Court.
Colony Property Development Company and William E. Locke,
Jr., claim that Defendants hired them to plan, coordinate,
and supervise the development of two different properties in
Pennsylvania. They allege that Defendants promised to pay Bay
Colony two percent of the development costs (the " Base
Fee") plus ten percent of the profits (the "
Incentive Fee") for its work on one site, and promised
to pay the same percentage amounts to Locke for his work on
the other site. Plaintiffs allege they have not been paid and
are owed part of the Base Fees and all of the Incentive Fees
for the two projects. Plaintiffs assert claims for breach of
contract, unjust enrichment, and declaratory judgment as to
enforceability of the alleged contracts.
have moved to dismiss on the ground that all claims are time
barred. They argue that the statutory limitations period
began to run on October 29, 2010, when AMB Property
Corporation (" AMB") sent a letter disputing
whether it had any binding contract with Bay Colony. If that
were correct, then all claims would be time barred--whether
the Massachusetts six-year limitations period or the
Pennsylvania four-year limitations period
controlled--because, this action was not filed in Middlesex
Superior Court until November 14, 2016, more than six years
Court concludes that it may consider the October 2010 letter
in deciding the motion to dismiss, but that it must DENY the
motion because that letter did not put Plaintiffs on notice
of any actual or anticipated breach of contract.
Considering the 2010 Letter
ask the Court to strike or at least disregard the October 29,
2010 letter that is attached to Defendants' motion to
dismiss. They argue that the Court may not consider this
letter without converting the motion to dismiss into a motion
for summary judgment because Plaintiffs did not attach the
letter to, reference the letter in, or rely on the letter in
drafting the complaint. The Court disagrees.
authenticity of this letter and the fact that it was sent to
Plaintiffs are not in dispute, as Plaintiffs acknowledged at
therefore permissible and appropriate for the Court to
consider the letter in deciding Defendants' motion to
dismiss. When deciding a motion to dismiss under Rule
12(b)(6), a court may consider " documents the
authenticity of which is not disputed by the parties"
without converting the motion into one for summary
judgment. Town of Barnstable v.
O'Connor, 786 F.3d 130, 141 n.12 (1st Cir. 2015),
quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
1993); accord, e.g., SFM Holdings, Ltd. v. Banc of
America Securities, LLC, 600 F.3d 1334, 1337 (11th Cir.
2010); cf. Smaland Beach Ass'n, Inc. v. Genova,
461 Mass. 214, 228, 959 N.E.2d 955 (2012) (judicial
construction of federal rules of civil procedure applies to
parallel state rules). No affidavit authenticating the
document is needed because the authenticity of the copy
provided by Defendants has been conceded. See City of
Boston v. Roxbury Action Program, Inc., 68 Mass.App.Ct.
468, 469 n.3, 862 N.E.2d 763, rev. denied, 449 Mass. 1101,
865 N.E.2d 1140 (2007) (summary judgment record).
No Actual Breach or Unequivocal Repudiation
October 29, 2010 letter did not trigger the statute of
limitations, however, because it did not constitute a breach
of the contractual terms alleged in the complaint, did not
put Plaintiffs on notice of an actual breach of contract, and
was not an unequivocal repudiation of any future contractual
letter put Defendants on notice that " AMB disputes that
there is any binding agreement between it and [Bay Colony]
with respect to either project. But the letter does
not assert that AMB was refusing to pay any amounts
that Bay Colony claims it was owed for services rendered.
Instead, AMB wrote that " [w]e will respond in writing
to you shortly detailing AMB's position." The letter
went on to direct Bay Colony and Locke not to do any further
work on either project, and not to have any contact with AMB
except through its legal counsel.
are not entitled to dismissal of this action on the ground
that the termination of any contractual arrangement between
AMB and Plaintiffs triggered the statute of limitations. The
complaint does not allege that AMB had no right to terminate
the alleged contract. As a result, nothing in the complaint
suggests that contract termination was in and of itself a
contract breach that would start the limitations period.
Defendants entitled to dismissal on the ground that the
October 2010 letter constituted a repudiation of AMB's
future contractual obligations and thus gave rise to a claim
for breach of contract.
not at all clear that Plaintiffs could have brought a claim
under Massachusetts law for anticipatory breach of contract,
even assuming that this letter was an unequivocal
repudiation. " With few exceptions, . . .
'Massachusetts has not generally recognized the doctrine
of anticipatory repudiation, which permits a party to a
contract to bring an action for damages prior to the time
performance is due if the other party repudiates.'"
KGM Custom Homes, Inc. v. Prosky, 468 Mass. 247,
253, 10 N.E.3d 117 (2014), quoting Cavanagh v.
Cavanagh, 33 Mass.App.Ct. 240, 243, 598 N.E.2d 677
(1992), rev. denied, 413 Mass. 1107, 602 N.E.2d 1094 (1992).
One of the exceptions applies where there has been " an
actual breach accompanied by an anticipatory breach."
Cavanagh, supra, at 243 n.5; accord Parker v.
Russell, 133 Mass. 74 (1882) (where defendant promised
to support plaintiff for his entire life, and stopped doing
so, plaintiff could sue for past and future damages). For
example, if a defendant has an alleged obligation to make
period payments to the plaintiff, refuses to pay the amounts
currently owed, and makes " a clear and unequivocal
repudiation" of its obligation to make future payments,
" the statute of limitations begins to run from ...