Superior Court of Massachusetts, Suffolk, Business Litigation Session
Joseph R. MULLINS
Joseph E. CORCORAN et al.
Date: March 27, 2018
MEMORANDUM AND ORDER ON PLAINTIFFâS MOTION TO
BIFURCATE AND DEFENDANTSâ MOTIONS IN LIMINE
Kenneth W. Salinger, Justice of the Superior Court
lawsuit concerns failed attempts to develop certain property
in Somerville, Massachusetts. The parties jointly own the
property through a closely-held company known as Cobble Hill
Center, LLC. They agreed to develop it together in a 1987
contract that divided up many of their other real estate
Mullins has asserted claims against Joseph Corcoran and Gary
Jennison for breach of contract and breach of fiduciary duty.
Corcoran and Jennison, in turn, assert similar counterclaims
against Mullins for breach of contract and breach of
fiduciary duty. The case is scheduled to be tried before a
jury starting on May 14, 2018.
Court rules as follows on three motions in limine that were
filed by Corcoran and Jennison and a motion to bifurcate
trial into separate liability and damages phases that was
filed by Mullins.
Measure of Damages
Court will ALLOW the request by Corcoran and Jennison within
Motion in Limine No. 1 for leave to present evidence of
alleged damages calculated as the future profits Defendants
claim to have lost as a result of Mullinsâ alleged breaches
of contract and fiduciary duty.
general measure of damages is the same for breach of contract
as for breach of fiduciary duty; under either theory, a
prevailing claimant is entitled to be put in the position
they would have been in if there had been no breach of duty.
See, e.g., Mailmanâs Steam Carpet Cleaning Corp. v.
Lizotte, 415 Mass. 865, 869 (1993) (breach of contract);
Berish v. Bornstein, 437 Mass. 242, 270 (2002)
(breach of fiduciary duty).
appropriate case, lost profits can be the appropriate measure
of damages either for breach of contract or breach of
fiduciary duty, assuming that the claimant can meet its
burden of proving that the alleged breach proximately caused
a future loss of profits. See, e.g., Situation Management
Systems, Inc. v. Malouf, Inc., 430 Mass. 875, 880 (2000)
(breach of contract); OâBrien v. Pearson, 449 Mass.
377, 387 (2007) (breach of fiduciary duty).
proposed methodology for calculating lost profits is
permissible in concept. They intend to present evidence
calculating their counterclaim damages as the future market
value of the building they had wished to contract, minus the
development costs that would have been incurred to construct
the building, minus the residual value of the property in its
current state. If the jury were to credit Defendantsâ
evidence, that would be a permissible way to value damages.
See, e.g., Neal v. Jefferson, 212 Mass. 517, 522-23
(1912) (plaintiff deprived of leasehold interest in land on
which he planned to build and operate a hotel was entitled to
" such prospective profits as it was fairly proved that
he would have realized" ).
assertion that Defendants cannot seek future lost profits
because damages must always be sought as of the date of the
alleged breach of duty is without merit, for the reasons
already discussed. However, Mullins will be entitled to an
instruction that if the jury awards damages for future lost
profits it must reduce the amount award to an equivalent
economic value as of the date that Corcoran and Jennison
first asserted their counterclaims. See Griffin v.
General Motors Corp., 380 Mass. 362, 367 (1980).
also argues that Defendants should be barred from presenting
such lost profit evidence because the claimed counterclaim
damages were not foreseeable in 1987 when the parties entered
into their contract. This argument is unavailing. It was
certainly foreseeable when the parties agreed to a framework
for developing this property that a breach of contract or
breach of fiduciary duty could result in the loss of a
valuable development opportunity, and thus in a loss of
profits. To the extent there is a factual dispute regarding
the foreseeability of damages that dispute must be resolved
by the jury.
Court will DENY Defendantsâ request within Motion in Limine
No. 1 to bar Mullins from presenting evidence and argument
regarding his 2016 and 2017 development proposals, in support
of his assertion that Defendants failed to mitigate their
claimed damages, because it is up to the jury to determine
whether Defendants failed to take ...