CUMMINGS PROPERTIES, LLC
FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR ENTRY
OF FINAL JUDGMENT
M. Lauriat, Justice of the Superior Court
action arises from a commercial lease dispute. SpineFrontier,
Inc. ("SpineFrontier") sought a declaratory
judgment that it had timely terminated its commercial lease
with its landlord, Cummings Properties, LLC
("Cummings"). Cummings filed a counterclaim against
SpineFrontier, asserting that SpineFrontier had breached the
partiesâ lease by defaulting on its lease obligations, and
that SpineFrontier owed Cummings rent for the four-year,
eleven-month balance of the automatically renewed five-year
August 12, 2016, the court (Drechsler, J.) denied Cummingsâ
summary judgment motion, concluding that there existed
"a material issue of fact as to the partiesâ intent
concerning the automatic renewal provision" of their
lease. Memorandum of Decision and Order on Defendantâs
Motion for Summary Judgment, at p. 9 (Drechsler, J.).
The court (Lauriat, J.) thereafter held a jury-waived trial
on February 1, 2 and 6, 2018. It heard testimony from Stephen
Drohosky, Justin DâAveta and William Grant, all employees of
Cummings, and from Kingsley R. Chin, Aditya Humad and
Christopher Chang, all current or former employees of
SpineFrontier. The court also received 70 agreed-upon
exhibits in evidence.
consideration of the credible testimony of the witnesses, the
exhibits, and the memoranda and arguments of counsel, the
court makes the following findings of fact, rulings of law,
and order for entry of judgment in this action.
is a Delaware corporation with a principal place of business
in Malden, Massachusetts. Cummings is a Massachusetts limited
liability company with a principal place of business in
Woburn, Massachusetts. Cummings manages more than 10 million
square feet of commercial real estate in more than 70
buildings located in ten Greater Boston communities,
including Andover, Beverly, Burlington, Marlborough,
Medford/Somerville, Stoneham, Sudbury, Wakefield, Wilmington,
and SpineFrontier were parties to a commercial lease (as
amended and extended, the "Lease"), which was
comprised of six documents: an original lease, four written
lease extensions, and one amendment to lease.
R. Chin ("Chin") and Christopher Chang
("Chang") co-founded SpineFrontier in or about
2005. At all relevant times Chin has been SpineFrontierâs
chief executive officer. In or about early 2006, Chin and
Chang decided to rent office space in Massachusetts for
SpineFrontier. Chang lived in or near Beverly, Massachusetts.
He chose SpineFrontierâs office space in the Cummings Center
about May 3, 2006, SpineFrontier, LLS, a Delaware entity, as
lessee, and Cummings, as lessor, executed a written agreement
captioned "Cummings Properties, LLC Standard Form
Commercial Lease" (the "Original Lease") for
space 321-D at 100 Cummings Center in Beverly, Massachusetts.
(Exhibit 1.) The original leased premises contained
approximately 331 square feet of leasable space. Chang signed
the Lease on behalf of SpineFrontier, LLS.
Original Leaseâs initial term was for one year, commencing on
May 1, 2006 and "ending at noon on April 30, 2007."
Paragraph 31 of the Original Lease states as follows:
AUTOMATIC FIVE-YEAR EXTENSIONS. This lease, including all
terms, conditions, escalations, etc. shall be automatically
extended for additional successive periods of five years each
unless LESSOR or LESSEE serves written notice, either party
to the other, of either partyâs option not to so extend the
lease. The time for serving such written notice shall be not
more than 12 months or less than six months prior to the
expiration of the then current lease term. Time is of the
premises was almost immediately too small for SpineFrontierâs
needs. SpineFrontier informed Cummings that it needed a
larger office. Cummings prepared and presented to
SpineFrontier the lease documentation that would accompany
SpineFrontierâs move to larger space.
26, 2006, Chang wrote to Cummingsâ account manager for the
SpineFrontier account, Justin DâAveta ("DâAveta"):
I am writing you in regards to my lease at 100 Cummings
Center ... In specific reference to section 31 that states,
an automatic five-year extension. This letter services as
written notice to inform you that SpineFrontier will
effectively end our one-year lease agreement on April 30,
2007. I will contact you if SpineFrontier needs to lease
additional office spaces after the April 30, 2007 date.
30, 2006, Stephen Drohosky ("Drohosky"), Cummingsâ
vice president and general manager for Cummings Center,
replied to Chang in writing as follows:
We have received your June 26, 2006 letter precluding the
automatic extension of your lease at 100 Cummings Center,
Suite 321-D. Accordingly, your lease will expire on April 30,
2007. We appreciate your business and understand that
canceling the extension was a formality. Justin DâAveta will
stay in touch with you regarding SpineFrontierâs future
facility requirements and we hope we will be able to agree on
a new lease to continue your tenancy. In the meantime, please
call either of us at any time if we can be of immediate
court finds, based on the credible testimony, that Cummingsâ
custom, practice and course of conduct was aimed at securing
an extension to its existing lease prior to the
expiration of the notice of termination period in the
tenantâs then existing lease, so long as the tenant was in
good standing and was current on its rental payments to
Cummingsâ urging, in the Fall of 2006, prior to the
termination of the notice of lease period in the Original
Lease, SpineFrontier and Cummings entered into a written
agreement captioned "Cummings Properties, LLC Standard
Form Lease Extension #1" ("Lease Extension No.
1"), which was signed by Kingsley Chin, on behalf of
SpineFrontier, on or about October 27, 2006 and by Cummings
on or about November 9, 2006. While the original lessee was
SpineFrontier, LLS, that corporate entityâs liability was
terminated by Lease Extension No. 1; SpineFrontier, Inc.
became a (co)lessee in Lease Extension No. 1 and is the only
proper lessee party to this action.
1 of Lease Extension No. 1 states: "The lease is hereby
extended for an additional term of three years ending at noon
on April 30, 2010." Paragraph 5 of Lease Extension No. 1
The lease, including all terms, conditions, escalations, etc.
shall be automatically extended for additional successive
periods of five years each unless LESSOR or LESSEE shall
serve written notice, either party to the other, of either
partyâs desire not to so extend the lease. The time for
serving such written notice shall be not more than 12 months
or less than six months prior to the expiration of the then
current lease period. Time is of the essence.
2007, again at Cummingsâ urging and prior to the notice of
termination period of Lease Extension No. 1, SpineFrontier
and Cummings executed a written agreement captioned
"Cummings Properties, LLC Standard Form Lease Extension
#2" ("Lease Extension No. 2"), which was
signed by SpineFrontier on or about July 2, 2007 and by
Cummings on or about July 11, 2007.
1 of Lease Extension No. 2 states: "The lease is hereby
extended for an additional term of six months ending at noon
on October 30, 2010." At SpineFrontierâs request and
direction, Cummings stamped the words "THIS PARAGRAPH
DOES NOT APPLY" over Paragraph 5 of the lease
document-the notice of termination provision-and sent that
document to SpineFrontier.
2008, again well in advance of the notice. of lease
termination window, SpineFrontier and Cummings executed a
written agreement captioned "Cummings Properties, LLC
Standard Form Lease Extension #3" ("Lease Extension
No. 3"). At the time Lease Extension No. 3 was signed,
SpineFrontierâs Peter Forte ...