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Braintree Property Associates, LP v. Marzouki

Superior Court of Massachusetts, Norfolk

September 26, 2017

BRAINTREE PROPERTY ASSOCIATES, LP
v.
FRANCO MARZOUKI, DR. WU, LLC, D.B.A EMACK & BOLIOS AND ROBERT ROOK and FRANCO MARZOUKI, CROSS-CLAIM PLAINTIFF,
v.
ROBERT ROOK, CROSS-CLAIM DEFENDANT

          MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Michael D. Ricciuti, Justice

         This action arises out of a lease agreement between the property owner, plaintiff, Braintree Property Associates, LP (" Braintree" ), the lease holder, defendant Dr. Wu, LLC, d/b/a Emack & Bolios (" Wu" ), for which Robert Rook is the sole owner and manager. Defendants Rook and Franco Marzouki guaranteed Wu's obligations to Braintree. There is no dispute that Wu breached its lease by vacating the property it leased from Braintree before its lease was up. Plaintiff moves for summary judgment on its claims against Wu, Rook and Marzouki. All defendants oppose. Wu and Rook cross-move for summary judgment against Braintree, improbably claiming that Braintree is entitled to no lost rent at all under the terms of Braintree's own Lease, which Braintree opposes. Marzouki moves for summary judgment on his cross-claim for indemnification from Rook, which Rook opposes.

         The issue at the core of this case is a straight-forward dispute about the measure of damages arising from Wu's undisputed breach of its lease with Braintree. Based on the lease and the undisputed facts, in consideration of the parties' memoranda of law and oral arguments, and for the reasons that follow, plaintiff's motion for summary judgment is ALLOWED. Wu's cross-motion for summary judgment is DENIED.

         For other reasons, Marzuki's motion for summary judgment on his cross-claim against Rook is DENIED.

         FACTS

         In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983).

         Braintree operates the South Shore Plaza, a shopping mall in Braintree. Rook is the sole owner and manager of Wu, which does business as Emack & Bolios, an ice cream seller.

         On or about July 25, 2011, Wu, as tenant, entered into a lease (" Lease" ) with Braintree for commercial space at the South Shore Plaza. The lease had a five-year term and required Wu to pay rent and fees. The lease term was to commence May 1, 2011 and end May 1, 2016.

         On or about July 25, 2011, defendants Marzouki and Rook each executed a joint and several guaranty of Wu's lease obligations.

         Beginning in June, 2014, Wu stopped paying rent, and did not pay any rent thereafter. Neither Rook nor Marzouki made good on the rent Wu failed to pay to Braintree. On October 22, 2014, Wu ceased business, and on October 30, 2014, vacated the premises.

         Braintree sent a demand letter to Wu dated November 26, 2014, which was copied to Marzouki and Rook and guarantors. That letter did not terminate the Lease but demanded all rental payments due under it, discounted to present value as permitted under the Lease and as reflected in a spreadsheet enclosed with the letter. The alleged damages totaled $126,773.55. The letter stated that Braintree " will assume the debt is valid unless the undersigned receives notice from Tenant within thirty (30) days after its receipt of this letter that Tenant disputes the validity of the debt, or any portion thereof," in which event " the undersigned will obtain verification of the debt and mail a copy of such verification to the Tenant, upon request by the Tenant" but that " [i]f the total sum is not paid within thirty (30) days from the date of this letter, the undersigned will attempt to obtain a judgment" against Wu. In response, Wu did not pay the rent demanded. Instead, Wu wrote back by letter dated December 5, 2014 and claimed that the debt was disputed and demanded verification of it and noted that Braintree's letter did not terminate the Lease. Braintree did not respond, but filed suit.

         The Lease stated that Wu would be in default if it abandoned or vacated the Premises, as it did. Lease, § 18.1(f). Among Braintree's remedies were to collect the full rent due, terminate the Lease by giving such notice to Wu or re-enter and take possession of the Premises. If Braintree re-entered or took possession of the premises, Braintree could terminate the lease and demand that Wu pay all of the rent due under the Lease immediately or it could allow the Lease to continue and deduct from the rent owed any rent Braintree was able to collect on re-letting on an ongoing basis:

If Landlord re-enters the Premises ... or if it takes possession pursuant to legal proceedings or otherwise, it may either terminate this Lease, but Tenant shall remain liable for all obligations arising during the balance of the original stated term as hereafter provided as if this Lease had remained in full force and effect, or it may, from time to time, without terminating this Lease, make such alternations and repairs as it deems advisable to relet the Premises, and relet the Premises ... for such term ... and at such rentals and upon other terms and conditions as Landlord in its sole discretion deems advisable; upon each such reletting all rental received by Landlord therefrom shall be applied, first, to any indebtedness other than rent due hereunder from Tenant to Landlord; second, to pay any costs and expenses of reletting, including broker's and attorney's fees and costs of alterations and repairs; third, to rent due hereunder, and the residue, if any, shall be held by Landlord and applied in payment of future rent as it becomes due hereunder.
If rental received from such reletting during any month are less than that to be paid during that month by Tenant hereunder, Tenant shall immediately pay ...

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