A quarterly summary and brief analysis of significant decisions issued by the Massachusetts Superior Court Business Litigation Session. A service of O’Connor, Carnathan and Mack LLC.		  

October 2007

Volume 4
Number 1
Page 4
 

Summarizing opinions from January 1, 2007 through
March 31, 2007
 
 

 


 

 

 


 

 
     

O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Fox Boston Seaport Land, LLC v. Massachusetts Bay Transportation Authority, 2007 WL 804105 (Mass. Super.) (Feb. 13, 2007) (Gants, J.).
     

Plaintiff sought to vacate an arbitration award, asserting that the arbitrator’s modification of his initial order violated the Uniform Arbitration Act, G.L. c. 251, § 9. While acknowledging that the Act sharply circumscribes the grounds upon which an arbitration award may be modified, Judge Gants held that the Act’s limitations do not apply where the parties authorize modification.

On this issue, the court noted that under the JAMS Comprehensive Arbitration Rules and Procedures, the parties are deemed to have made the

 

 


 

 

 
Rules a part of their agreement for binding arbitration by JAMS. The JAMS Rules that were in effect at the time of the arbitration specifically permitted the arbitrator to reconsider his/her decision for any reason, provided that the award had not become final. Since the original parties “effectively incorporated the JAMS Rules as part of their agreement to have their dispute arbitrated by JAMS,” the court found that they had “effectively authorized the arbitrator to modify an award.” Id. at *4.

 
 

 


 

 

 


 

 
 
     
     
 

 

 
 

 

 


 

 


 

 


 

Danvers-DCH, Inc. v. Hill, 2007 WL 1302607 (Mass. Super.)
(March 5, 2007) (Gants, J.).
     

This summary judgment decision addressed an unremarkable dispute over the terms of a commercial lease. The lease granted Danvers the option to extend its tenancy for two additional five-year terms and to purchase the leased premises, provided that it was not in default when it sought to exercise these options.

Plaintiff gave defendant notice of its intention to exercise its purchase option in 2005. The court found that there could be “no dispute that, when Danvers sought to exercise its option to buy, it was in default under the Amended Lease on at least three grounds.” Id. at *3. Given that “[c]ontrolling Massachusetts appellate authority makes clear that an option to purchase property that is
 

 

 

 


 

 

 
expressly conditioned on the absence of any default may not be specifically enforced in the presence of a default,” summary judgment for defendant was in order. Id. at *4. The fact that defendant had waived default for purposes of renewal did not change this result for both the terms of the waiver and the lease itself made clear that a waiver for one purpose did not extend to other purposes. Because plaintiff’s claim was thus “devoid of any reasonable factual support or arguable basis in law,” the court further granted defendant’s special motion to dismiss plaintiff’s lis pendens under G.L. c. 184, §15(c), awarding fees and costs in accordance with the
statute.
 

 

 

 

 


 


 


 
 
     
     
 

 

 
 

 



 

 


 

Abate v. Naymie, 2007 WL 869248 (Mass. Super.)
(March 1, 2007) (van Gestel, J.).
     

The court here ordered the defendant to provide the plaintiffs with access to corporate documents under G.L. c. 156D, § 16.05. The defendant, acting in his capacity as president of EAS corporation, refused to permit two EAS directors and their agent to inspect the company’s records. The court held that there had been no showing that the directors had

 

 


 

 
an improper motive or would violate any laws by receiving the corporate information, and further held that defendant’s previous grants of access were insufficient to satisfy the statute. The court ordered the defendant to make all records available in the manner in which they were ordinarily maintained, subject to an order for costs and fees in the event of further noncompliance.
 

 

 



 


 
 
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