03.23.2023 | Articles

Sidebar Discussions

By Richard E. Gentilli, Thomas M. Looney

The Devil Is In The Details, And The Disclaimer Is In The Emails

After an exchange of numerous emails about an investment opportunity, the plaintiff in Giul, LLC v. Shenghuo Medical, LLC signed a contract that contained significantly different terms than the terms negotiated through the emails leading up to the contract. Every email from the defendants contained a disclaimer saying, in essence, that nothing in the emails was binding and that only a signed contract could bind the parties. The signed contract contained an integration clause which said that the only relevant terms were in the contract and that prior terms discussed in negotiations were not applicable. The plaintiff admitted that they did not read the terms of the contract before signing. The plaintiff sued when the deal went south, and argued that it was the victim of fraud. Not surprisingly, the Superior Court threw out the case, saying that a party is bound by the terms of a contract even if they don’t read before signing. The judge noted the significance of the disclaimers in the emails and the integration clause in the contract, and the lack of any active misrepresentation as to the contents of the form of contract. The lessons seem obvious: Use email disclaimers before a contract is finalized; and read the contract before signing.

Post Date: 3/23/2023


Estop Me If You Can

“A tale as old as commerce: Two friends, next door neighbors in fact, enter, and exit, business together, leaving behind unmet expectations and financial acrimony.” So starts the recent decision from the First Circuit Court of Appeals in Botelho v. Buscone. The two parties owned a frozen yogurt shop. After the business failed, one owner (Ann) filed for bankruptcy and received a discharge. She did not list any claims against her co-owner (Mary) in her bankruptcy schedules. Years later, Ann sued Mary in state court for fraud (among other things) and obtained a default judgment of over $90,000.

Mary then filed her own bankruptcy case, and Ann filed an adversary proceeding asking that her judgment against Mary be deemed non-dischargeable because it was based on fraud. Mary’s primary defense was based on “judicial estoppel,” which can be employed if someone like Ann takes a position in a case inconsistent from an earlier position. In this case, Mary argued that Ann’s claims against her could not be brought because Ann failed to list those claims in her own bankruptcy case years earlier. The theory is that if she had claims, she should have listed them in her bankruptcy case. Not having included them in her own bankruptcy schedules, Ann is now “judicially estopped” from raising them in Mary’s case.

The Court disagreed, saying that judicial estoppel is not automatic. At a minimum, two things must be shown: “First, a party’s … position must be clearly inconsistent with their earlier position, and second, they must have “succeeded in persuading a court to accept [their] earlier position.” But, the Court went on to say that judicial estoppel is an equitable and discretionary doctrine, and “factual circumstances drive the estoppel analysis.” In this case, the Court ruled that because of evidence that Ann’s failure to list her claims against Mary in her bankruptcy case was not intentional, the Bankruptcy Court’s refusal to employ judicial estoppel was within its discretion.

Post Date: 3/16/2023


Payback Time?

A Superior Court Judge issued a decision denying a motion to dismiss, which allowed the plaintiff to move ahead with a fraudulent transfer case. In SHS ACK, LLC v. Ajax 5Cap NESV, LLC, the defendant who sought dismissal is an individual (the “Investor”) who was an indirect member of Ajax 5Cap NESV, LLC, an entity that had borrowed $11 million to develop property in Attleboro. After the loan went into default and the LLC was insolvent, the Investor received payments from the LLC totaling $350,000. The lender to the LLC filed the case to recover the sums paid to the Investor under the Massachusetts fraudulent transfer statute.

Under that statute (G.L. c. 109A), payments by a debtor may be set aside if the debtor did not receive “a reasonably equivalent value in exchange for the transfer;” and “the debtor was insolvent” at the time or as a result of the transfer. If the payments were to an insider (the definition of which includes an affiliate or insider of an affiliate of the debtor), the payments can be set aside if they were for an antecedent debt, the debtor was insolvent at the time of the transfers, and “the insider had reasonable cause to believe that the debtor was insolvent.”

The Investor argued that the payments to him were part of a settlement agreement in which he agreed to reduce his interest in the LLC and, therefore he gave reasonably equivalent value. The judge disagreed, saying that any consideration given in the settlement agreement did not provide any value to the LLC. The court also determined that there were sufficient facts to establish the Investor as an “insider” under the statutes.

Based on this decision, the case will continue, and the Investor is in jeopardy of losing the $350,000 he received from the LLC.

Post Date: 3/9/2023


The Pandemic “Maid” Me Do It

In Le Fort Enterprises, Inc. v. Lantern 18, LLC, the Supreme Judicial Court ruled that the COVID-19 pandemic did not excuse the default on a promissory note under the doctrines of impossibility/impracticality of performance and/or frustration of purpose. The obligors on the note were the purchaser and its principals of a “Merry Maids” franchise. In April 2020, five years after the agreement began, and one month after the world shut down due to the pandemic, the purchaser defaulted and the seller then commenced suit against the obligors for nonpayment under the note.

The purchaser argued that the pandemic fell under the doctrines of the impracticability of performance or frustration of purpose and temporarily excused the obligors from making their payments.

The SJC disagreed and noted that: (a) the purchase contract at issue did not have a force majeure clause; (b) certain contractual provisions made it clear that any risk of loss was on the purchaser; and (c) the obligors did not make any showing that the pandemic prevented repayment of the note from sources other than the cleaning franchise. The SJC determined that the obligors were stuck “cleaning” up their own mess. The takeaway: Using a defense like “the pandemic made me do it” should be avoided like the plague.

Guest Author: Jacqueline Price 

Post Date: 3/2/2023


For Whom The Statute Of Limitations Tolls

The Appeals Court recently decided a case involving land in Oak Bluffs owned by the plaintiff and his now deceased sister (Zutrau v. Zutrau). The sister loaned the plaintiff money and secured the note with an agreement that upon default, the brother would deed her his interest in the property. After the brother defaulted, he filed a bankruptcy case. About six years after the bankruptcy case closed, the brother filed an action to partition the property. The personal representative of the sister’s Probate Estate countersued under the note and sought an order that the brother transfer his half interest in the property to the Estate. Among the brother’s defenses was that the claim was barred by the applicable statute of limitations (applying New York law in this case, it was six years). The Appeals Court rejected the argument and ruled that the statute of limitations was tolled throughout the bankruptcy case, meaning that the Estate’s claim (filed almost 12 years after the loan default) was timely. In this case, it was the brother who was SOL.

Post Date: 2/23/2023


Buyer’s Broker, Beware

In Huang v. Ma, the plaintiff real estate broker sued her clients after they sold their property without paying her a broker’s commission. The defendants had retained the plaintiff under an oral agreement as their exclusive buyers’ broker. Under the agreement, the buyers agreed to “’refer’ to Huang ‘all potentially acceptable real property’ they identified and would ‘notify other real estate agents’ of the arrangement.” The defendants then found a property on their own and sent the plaintiff/broker an email “recognizing the work she did for them and sending her an Amazon gift card by way of apology.”

The broker sued for her commission and a Superior Court judge dismissed the case because there was no written agreement between the parties. The Appeals Court reversed because while contracts to sell real estate must be in writing, real estate broker agreements do not need to be in writing. A Massachusetts statute (G.L. c. 259, sec.7) requires most broker agreements to be in writing, but specifically excepts real estate brokers from this requirement. The Supreme Judicial Court agreed with the Appeals Court and ruled that the broker could recover a commission assuming she proved all of her allegations at trial, despite not having a written contract.

Post Date: 2/16/2023


Partition Is Such Sweet Sorrow

In Furnas vs. Cirone, the two parties were joint owners of property with rights of survivorship. If one of them died, the other would become the sole owner automatically as a matter of law. After a dispute arose, the owners decided to partition the property through the Probate Court. They agreed to a judgment involving payments over time and an ultimate refinancing of the property.

Many months after judgment entered, the defendant died, and the surviving plaintiff claimed that they were still joint tenants with rights of survivorship, so upon the defendant’s death, the plaintiff became the sole owner despite the partition judgment and agreement. The Appeals Court ruled that the joint tenancy was severed when the partition judgment entered, so the plaintiff was bound by the judgment and could not claim full ownership of the property.

Post Date: 2/13/2023


What’s Up Dock?

Kubic v. Audette is a case in which the two parties have been fighting for years about a dock built by the defendant on Webster Lake in front of the plaintiffs’ property. (As an aside, the Algonquian name of the lake, Lake Chargoggagoggmanchauggagoggchaubunagungamaugg, is almost as big as the lake itself). The defendant in the case holds an easement over a right of way to the lake and argued that building the dock fell within the permitted use of the easement. The Land Court disagreed and ruled that building the dock constituted an overburdening of the easement, meaning that it exceeded the scope of the original intent of the easement. The Appeals Court agreed. So, absent some settlement, it appears that the dock must go.

Post Date: 2/6/2023

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