Superior Court of Massachusetts, Suffolk, Business Litigation Session
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION TO
Kenneth W. Salinger, Justice.
Freedenfeld & Associates, LLP is an architectural firm
based in Boston, Massachusetts, that specializes in designing
animal hospitals. It is suing Todd Prince for not paying
Plaintiff in full for designing renovations for an animal
hospital owned by Prince in Deerfield, Illinois. Prince
asserts various counterclaims.
has moved to dismiss four of the five counterclaims; it does
not seek dismissal of the counterclaim for breach of contract
(Count I). The Court will allow the motion in part and deny
it in part. Specifically, it will dismiss the claim for
negligent misrepresentation but otherwise deny the motion to
argues that the counterclaim for fraud (Count II) is not
pleaded with the particularity required by Mass.R.Civ.P.
9(b). Under this rule, a claimant must " at a
minimum" support their claim for fraud by specifically
alleging " the identity of the person(s) making
the" allegedly fraudulent " representation, the
contents of the misrepresentation, and where and when it took
place, " and must also " specify the materiality of
the misrepresentation, [his] reliance thereon, and resulting
harm." Equipment & Systems for Industry, Inc. v.
North Meadows Constr. Co., Inc., 59 Mass.App.Ct. 931,
931-32, 798 N.E.2d 571 (2003) (rescript).
has stated his fraud claim with sufficient particularity. The
allegations in the counterclaim plausibly suggest that
Plaintiff's agent made specific and false statements of
fact to Prince at a meeting in September 2015. Plaintiff made
specific and false promises in the parties' contract that
Plaintiff never intended to perform, Plaintiff made these
false statements and promises to induce Prince to sign the
contract, Prince did so to his detriment, and as a result
Prince was damaged in that he paid $126, 098.56 for draft
drawings that he cannot use. These allegations state a claim
for fraud. See Masingill v. EMC Corp., 449 Mass.
532, 540, 870 N.E.2d 81 (2007) (elements of fraud);
McCarthy v. Brockton Natl. Bank, 314 Mass. 318, 325,
50 N.E.2d 196 (1943) (" A principal is liable for the
fraud committed by his agent or servant acting within the
scope of his employment"); Cumis Ins. Society v.
BJ's Wholesale Club, Inc., 455 Mass. 458, 474, 918
N.E.2d 36 (2009) (fraud claim may be based on false promise
if " the promisor had no intention to perform the
promise at the time it was made") (quoting Yerid v.
Mason, 341 Mass. 527, 530, 170 N.E.2d 718 (1960)).
Court reminds the parties, however, that an " intention
not to perform a promise" cannot be inferred merely from
later " nonperformance of the promise." Galotti
v. United States Trust Co., 335 Mass. 496, 501, 140
N.E.2d 449 (1957); accord McCartin v. Westlake, 36
Mass.App.Ct. 221, 230 n.11, 630 N.E.2d 283 (1990), see also
Backman v. Smirnov, 751 F.Supp.2d 304, 316 n.13
(D.Mass. 2010) (" Changing one's mind is not proof
that an earlier statement was false") (Stearns, J.)
(applying Massachusetts law).
Chapter 93A Claim
arguments for dismissing the counterclaim under G.L.c. 93A,
§ 11 (in Count III) are also without merit.
plausible allegations of intentional fraud suffice to state a
claim that Plaintiff engaged in deceptive conduct that
violates c. 93A. See, e.g., Brewster Wallcovering Co. v.
Blue Mountain Wallcoverings, Inc., 68 Mass.App.Ct. 582,
605, 864 N.E.2d 518 (2007) (" the finding of intentional
misrepresentation (or common-law fraud or deceit) . . . is
sufficient foundation for a finding of a c. 93A violation in
a business context"); The Community Builders, Inc.
v. Indian Motorcycle Assocs., Inc., 44 Mass.App.Ct. 537,
557, 692 N.E.2d 964 (1998) (false promise with no intention
to perform would violate c. 93A).
allegation that Plaintiff is located in Boston, and
presumably did most of its work for Prince in its own
offices, is sufficient at this stage to suggest that
Plaintiffs' alleged misconduct occurred " primarily
and substantially" within Massachusetts, as required by
G.L.c. 93A, § 11. Whether the center of gravity of the
parties' interactions and Plaintiff's alleged fraud
is in Illinois rather than Massachusetts is not an issue that
can be resolved on a motion to dismiss, at least not in light
of the facts alleged by Prince in his counterclaim. See
Resolute Management, Inc v. Transatlantic Reins.
Co., 87 Mass.App.Ct. 296, 300-01, 29 N.E.3d 197 (2015).
Negligent Misrepresentation Claim
contrast, the Court is convinced that Prince has not stated a
viable claim for negligent misrepresentation in Count IV.
alleges (in paragraph 38) that Plaintiff failed to do
everything it had promised in its contract. Those allegations
support the counterclaim for breach of contract in Count I.
But a promise is not a tortious misrepresentation unless the
promising party never intended to perform, in which case the
injured party has a claim for intentional misrepresentation.
" [P]romises to perform an ...