LEO J. MOTSIS, trustee, 
MING'S SUPERMARKET, INC.
Heard: July 12, 2019
action commenced in the Superior Court Department on August
25, 2015. Summary Process. Complaint filed in the Superior
Court Department on November 22, 2016. After consolidation,
the case was tried before Paul D. Wilson, J., and a motion
for a new trial was considered by him.
Alan Curhan for the plaintiff.
Richard E. Gentilli for the defendant.
Present: Henry, Sacks, & Ditkoff, JJ.
case presents the question whether a lessor's material
breach of a commercial lease permits the lessee both to
recover lost profits due to lost use of the premises and to
obtain an order for specific performance of the lease
provision requiring the lessor to make structural repairs.
After a Superior Court jury trial and the judge's
resolution of the parties' G. L. c. 93A claims, a
judgment awarding both forms of relief entered for the
lessee, the defendant and plaintiff in counterclaim,
Ming's Supermarket, Inc. (Ming's), against the
lessor, the plaintiff and defendant in counterclaim, Leo J.
Motsis, as trustee of a realty trust (Motsis). We conclude
that, in the circumstances of this case, such relief was
proper. We also reject Motsis's challenge to the
judge's findings in favor of Ming's under G. L. c.
93A, and we see no merit in Motsis's various claims of
trial error. We thus affirm the judgment.
jury could have found that Motsis owned the premises in
question, a four-story warehouse on East Berkeley Street in
Boston. Ming's operated a specialty supermarket, selling
Asian food, on Washington Street in Boston; the rear portion
of the supermarket building connected directly to the
warehouse. In 1999, the parties signed a lease of the
premises to Ming's for a term of ten years and five
months, effective January 1, 2000, with two extension options
of ten years each.
lease provided, with exceptions not relevant here, that
Motsis was "responsible for making all structural
repairs and replacements to the foundation, walls and roof of
the building on the leased premises. The cost of such
structural repairs and replacements will be charged to
[Ming's] as additional rent if they are necessitated by
the fault or negligence of [Ming's] . . . ." Other
repairs and maintenance were Ming's responsibility. The
lease also provided that if a "casualty . . . renders
the leased premises substantially unsuitable for their
intended use, a just and proportionate abatement of rent
shall be made, and [Ming's] may elect to terminate this
lease" if certain conditions were met. The lease
required that in any situation where Motsis's consent was
required, Motsis could not unreasonably withhold or delay it.
Finally, the lease gave Ming's a right of first refusal
if Motsis received any offers to purchase the premises.
premises had previously been used to store and repair motor
vehicles, and the city had issued a permit for that purpose.
Ming's intended to use the space to store food and
grocery items. That use was not allowed under the existing
permit and, because of zoning regulations, required what the
parties refer to as a conditional use permit from the
city's zoning board of appeals. Precisely when Ming's
became aware that it needed such a permit was an issue at
trial. Nevertheless, even without that permit, Ming's
used the premises for food and grocery storage into 2010 and,
under a lease extension, until early 2015.
February 2015, a sprinkler pipe froze and burst which, among
other things, led the city's inspectional services
division (ISD) to pay a visit. ISD issued citations for
numerous building code violations, including unsafe
structural conditions such as a fractured fourth-floor
ceiling with delaminating concrete, a fracturing concrete
beam, and fractures in the staircases. ISD also found
violations concerning the mechanical systems, elevators, and
sprinklers. Finally, ISD issued a citation for failure to
have a permit to use the premises for food storage. ISD told
the administrative manager of Ming's that Ming's
could not use the building because of its structural problems
and the lack of a proper permit.
moved its stored food and grocery supplies out of the
premises but continued to pay rent through April 2015.
Ming's made some of the internal repairs, but took the
position that the elevator repairs could not be completed
until the premises were made structurally sound. Ming's
and Motsis both understood that Ming's could not apply
for the conditional use permit until the structural repairs,
or at least the plans for such repairs, were complete.
Ming's needed Motsis's cooperation in the permit
application process. Ming's asked Motsis to make the
structural repairs (their cost was later estimated at
approximately $500, 000), but Motsis did not do so, asserting
that at least some of them were the responsibility of
stopped paying rent in May 2015,  because it could not use
the premises, Motsis was not making the structural repairs,
and Ming's could not yet seek the conditional use permit.
In August 2015, Ming's agreed to undertake the permit
application process if the parties could cooperate to resolve
the repair issues. Ming's stated, "If on the other
hand the owner wants [Ming's] out and will attempt to
terminate the lease at all costs, then we might as well know
that now." Motsis replied that he would not allow
Ming's back on the premises until Ming's paid for the
structural damage it allegedly had caused, obtained the
permit, and paid all back rent. Motsis then commenced this
action in the Superior Court.
complaint asserted material violations of the
lease, breach of contract, and a variety of other claims;
Motsis requested damages and declaratory relief. Motsis's
theory, stated briefly, was that Ming's had stopped
paying rent in order to pressure Motsis either to sell the
premises to Ming's at below-market value or to buy out
the lease. Motsis sought a declaration that the violations by
Ming's rendered the lease of no further effect.
counterclaimed for breach of the lease, breach of the implied
covenant of good faith and fair dealing, and violations of G.
L. c. 93A. As relief, Ming's sought damages (including
lost profits from decreased sales), a declaration that it had
been constructively evicted and thus had no duty to pay rent,
and an order for specific performance of the lease provisions
requiring Motsis to make structural repairs and to cooperate
with Ming's in obtaining a conditional use
permit. In essence, Ming's proceeded on
the theory that, because the rent specified in the lease was
substantially below market value, Motsis was attempting to
force Ming's to abandon the premises and forgo its rights
under the lease, leaving Motsis free to sell the premises
unencumbered by the lease.
later filed a separate summary process action. On a motion by
Ming's, the cases were consolidated. In August of 2017,
most of the claims were tried to a jury. The parties
submitted proposed special questions for the jury; based on
those submissions, and after extensive discussions with the
parties during the trial, the judge developed a special
verdict slip. The G. L. c. 93A claims, Motsis's summary
process claim, and the request by Ming's for specific
performance were tried to the judge.
response to questions on the verdict slip, the jury found, as
to Motsis's claims, that Ming's had materially
breached the lease by failing to pay rent. The jury found,
however, that the breach was excused -- either because
Ming's had been constructively evicted or because a
casualty had rendered the premises substantially unsuitable
for their intended use, entitling Ming's to a rent
abatement. Similarly, the jury found that
Ming's had breached the lease by using the premises
without a proper permit and by failing to make certain
repairs, but that Motsis either had waived these claims or
was estopped to assert them.
counterclaims that Ming's asserted, the jury found that
Motsis had committed a breach of the lease by failing to make
structural repairs, causing Ming's damages in the amount
of $795, 000, plus $2, 250 for each future
month. The jury also found that Motsis had
violated the implied covenant of good faith and fair dealing,
both by failing to make the structural repairs and by failing
to cooperate with Ming's in the permit application
process. But the jury found that those breaches had not
caused Ming's any additional damages beyond the amounts
already awarded for Motsis's breach of the lease.
the claims tried to the judge, the transcript indicates that
the parties agreed to waive formal findings of fact and
rulings of law and instead to have the judge indicate his
rulings in the "short form of a jury verdict slip[-]like
document." Using such a form, the judge found
against Motsis on his G. L. c. 93A and summary process
claims. On the G. L. c. 93A counterclaim brought by
Ming's, the judge found that Motsis had violated the
statute, that the damages to Ming's were the same $795,
000 already awarded by the jury, that the violation was
willful or knowing, and that the damages should therefore be
doubled. The judge ruled that Ming's was
entitled to specific performance of the lease provisions
requiring Motsis to make structural repairs and to cooperate
with Ming's in seeking the conditional use permit.
Finally, the judge ruled that damages of $2, 250 per month
would continue to accrue until Motsis completed the
entered in accordance with the jury verdicts and the
judge's rulings, and Motsis now appeals.