Bpr Group Ltd. Partnership v. Bendetson, SJC-10301.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtSpina
Citation906 N.E.2d 956,453 Mass. 853
PartiesBPR GROUP LIMITED PARTNERSHIP v. Richard K. BENDETSON & others.<SMALL><SUP>1</SUP></SMALL>
Decision Date21 May 2009
Docket NumberSJC-10301.
906 N.E.2d 956
453 Mass. 853
BPR GROUP LIMITED PARTNERSHIP
v.
Richard K. BENDETSON & others.1
SJC-10301.
Supreme Judicial Court of Massachusetts, Suffolk.
Argued February 2, 2009.
Decided May 21, 2009.

[906 N.E.2d 957]

Thomas N. O'Connor, Boston (David B. Mack with him) for the plaintiff.

Albert P. Zabin, Boston, for the defendants.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.


END OF FRONT MATTER

453 Mass. 853

The plaintiff, BPR Group Limited Partnership (BPR),

453 Mass. 854

sent notices of dissolution purporting to dissolve three real estate joint ventures with the defendants, Richard K. Bendetson (Bendetson); CDE Revere, LLC (CDE); and Carson Revere, LLC (Carson), pursuant to G.L. c. 108A, § 31(1) (b), which allows a joint venturer in certain circumstances to dissolve unilaterally a joint venture without thereby causing a breach of the joint venture agreement. Such agreements have become known as "at-will" joint venture agreements.2 The defendants refused to acknowledge BPR's notices as effectuating dissolution under G.L. c. 108A, § 31(1) (b), prompting BPR to file a complaint in the Superior Court seeking a declaratory judgment that its notices had dissolved the joint ventures under G.L. c. 108A, § 31(1) (b),3 or, alternatively, decrees dissolving

906 N.E.2d 958

the joint ventures on equitable grounds under G.L. c. 108A, § 32(1) (f).4 The defendants counterclaimed that the notices of dissolution effectively dissolved the joint ventures in contravention of the joint venture agreements under G.L. c. 108A, § 31(2).5

A judge in the Superior Court resolved the liability phase on cross motions for partial summary judgment in two stages. He initially addressed whether the joint ventures were at will, and ruled that they were not at will because the joint venture agreements set forth the exclusive circumstances under which they could be dissolved. The judge further concluded that the notices operated to dissolve the joint ventures in contravention of the joint venture agreements. However, he expressly gave BPR leave to show that it was entitled to an order of equitable dissolution. After the parties conducted further discovery, he considered whether dissolution was appropriate on equitable grounds. He

453 Mass. 855

allowed the defendants' motion for summary judgment as to the counts of BPR's complaint seeking decrees of dissolution on equitable grounds, which had the effect of reaffirming his earlier ruling that the joint ventures were dissolved in contravention of the joint venture agreements by BPR's notices.

Following a trial to determine the value of BPR's interest in the joint ventures as of the date of the dissolutions and the damages, if any, incurred by the defendants as a result of the dissolutions, an order issued awarding BPR $2,759,098, less the defeasance fees associated with two mortgages on property belonging to the joint ventures; the costs of refinancing those mortgages; and postdissolution distributions made to BPR. BPR's request for prejudgment interest was denied.

BPR appealed, arguing that the joint ventures were at will, and even if they were not at will, the judge should have held an evidentiary hearing to determine whether the joint ventures should have been dissolved on equitable grounds. It further argues that assuming the joint ventures were dissolved in contravention of the joint venture agreements, the judge erred in concluding that the defeasance fees and costs of refinancing resulted from the dissolution, and in denying BPR's request for prejudgment interest. We transferred the case to this court on our own motion.

Considerable confusion has resulted from the fact that the liability phase of this case occurred in two stages of motions for partial summary judgment. As we explain infra, for purposes of this appeal, by abandoning certain positions, the parties implicitly have accepted the judge's determinative structure of the case, namely, that the joint ventures would be deemed dissolved by notice in contravention of the joint venture agreements unless BPR could prove it was entitled to equitable dissolution. More specifically, BPR has abandoned its claim that a notice purporting to dissolve an at-will joint venture is ineffective to dissolve a joint venture that is not at will. Similarly, the defendants have abandoned

906 N.E.2d 959

their claim that BPR is not entitled to equitable dissolution where the judge earlier ruled the agreements were dissolved by notice.

For the reasons that follow, we agree with the judge that the joint ventures were not at will because the joint venture agreements set forth the circumstances under which the joint ventures

453 Mass. 856

could be dissolved. However, because we conclude that a genuine issue of material fact exists concerning the counts of BPR's complaint seeking decrees of dissolution of the joint ventures pursuant to G.L. c. 108A, § 32(1) (f), we reverse the grant of partial summary judgment on those counts. We also address BPR's arguments concerning damages in the event that BPR does not succeed on its claim for equitable dissolution under G.L. c. 108A, § 32(1) (f), on remand.

1. Background. We summarize the following additional facts,6 reserving details concerning damages for later discussion.

Atlantic Corporation, Bendetson, Robert L. Buonato (Buonato), Herbert Carver, and C. Gerard Drucker entered into three joint venture agreements in 1980 and 1981.7 The joint ventures were formed for purposes of acquiring, operating, and developing several parcels of real estate. Section 4 of all three agreements states:

"Term. This Agreement shall commence as of the date hereof and shall continue and not be dissolved or terminated except as hereinafter provided."

Section 11 of each agreement provides:

"This Joint Venture shall terminate upon the first to occur of the following events:

"1. Upon notice of any non-defaulting Member, if any other Member shall fail to perform his or its obligations hereunder and such default shall continue uncured for a period of at least sixty (60) days after written notice thereof from the party claiming such default; the party desiring to terminate under this provision shall, after the expiration of the sixty (60) day period, give one (1) month's written notice of his or its intention to terminate.

453 Mass. 857

"2. Upon the conveyance of all the real estate comprising the Property.

"3. At the option of any Member not in default within a reasonable time after notice that any other Member shall have had filed by or against him pursuant to a statute of the United States or of any statute, a petition in bankruptcy or insolvency or for the appointment of a receiver or trustee of all or a portion of such other party's assets and such other party fails within sixty (60) days to secure a discharge thereof, or if such other party shall make an assignment for the benefit of creditors or petition for or voluntarily enter into an arrangement for the benefit of creditors.

"4. By mutual agreement of all of the Members."

906 N.E.2d 960

The agreements further provide that Bendetson's company, Diversified Funding, Incorporated (Diversified), would manage the properties of the joint ventures.

Buonato's interests subsequently were assigned to BPR, the vehicle through which Buonato, his wife, Barbara Buonato, and their son, Robert, participate in the joint ventures. Drucker's interests, including his one-half share of Atlantic Corporation's interest, were transferred to CDE. Carver's interests, including Atlantic Corporation's other half-share, were transferred to Carson.

In the late 1990's, relations between Buonato and Bendetson began to sour. In or around 1997, Buonato found it increasingly difficult to obtain information about the properties from Bendetson directly and resented being referred to Bendetson's chief financial officer, Garry Cuneo, for such information. Buonato also became concerned that Diversified was letting at least one of the properties "slide into a slum," observing that the hallways, elevator, and grounds were in unsatisfactory condition.8

In or around October, 1999, Buonato and his wife expressed their dissatisfaction with Bendetson to Drucker. In addition to their concerns about Bendetson's management of the joint venture property, they were upset that Bendetson had ignored their

453 Mass. 858

requests to pay off a loan made by Bendetson's father to a Buonato-Bendetson real property endeavor unaffiliated with the joint ventures. The interest on the loan was eighteen per cent and yielded a $750 monthly interest payment to Bendetson's father.

In or around March, 2000, Buonato learned that $300,000 had been transferred from the joint ventures' account to Bendetson's personal account.9 Bendetson subsequently replaced the $300,000, and later explained that Cuneo had transferred the money without Bendetson's knowledge. Carver and Drucker were satisfied with Bendetson's explanation and replacement of the funds, but Buonato was not. Buonato suspected that Bendetson had misappropriated the money from the joint ventures, and had worked out some sort of deal with Carver and Drucker.

A meeting between the joint venturers was scheduled for August 16, 2000. Bendetson suggested that the Buonatos (on behalf of BPR), Carver, and Drucker submit questions for him before the meeting so he could prepare for the meeting. Buonato sent Bendetson a number of questions primarily concerned with the finances of the joint ventures. A couple of weeks before the meeting, Drucker drafted and circulated an agenda to all the joint venturers, which incorporated many of Buonato's questions and concerns. The meeting was not successful. Bendetson began the meeting by reading from a prepared statement, which angered Buonato who apparently expected Bendetson to answer the questions he had sent to him beforehand. When Bendetson declined to answer Buonato's questions,...

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11 practice notes
  • Congel v. Malfitano, No. 30
    • United States
    • New York Court of Appeals
    • March 27, 2018
    ...specifying the circumstances under which a partnership may be dissolved is not at will." ( BPR Group Ltd. Partnership v. Bendetson, 453 Mass. 853, 863–864, 906 N.E.2d 956 [2009] [internal quotation marks and citations omitted]; accord e. g.Matter of Popkin & Stern, 340 F.3d 709, 714 [8th Ci......
  • Congel v. Malfitano, No. 30
    • United States
    • New York Court of Appeals
    • March 27, 2018
    ...specifying the circumstances under which a partnership may be dissolved is not at will." ( BPR Group Ltd. Partnership v. Bendetson, 453 Mass. 853, 863–864, 906 N.E.2d 956 [2009] [internal quotation marks and citations omitted]; accord e. g.Matter of Popkin & Stern, 340 F.3d 709, 714 [8th Ci......
  • Medimmune, LLC v. Bd. of Trs. of the Univ. of Mass., No. 0008
    • United States
    • Court of Special Appeals of Maryland
    • June 3, 2015
    ...Id. at 789. The RSV agreement contains no such language.Page 35 UMass also cites BPR Group Limited Partnership v. Bendetson, 906 N.E.2d 956 (Mass. 2009), for support. In that case, the parties disputed the dissolutions of real estate joint ventures. Id. at 957. The partnership agreement exp......
  • Burns v. Taylor, SUCV201500719BLS1
    • United States
    • Superior Court of Massachusetts
    • February 8, 2017
    ...and obligations of the parties are governed by the UPA because no partnership agreement existed. See BPR Grp. Ltd. P'ship v Bendetson, 453 Mass. 853, 863, 906 N.E.2d 956 (2009) (observing that the UPA applies when there is no partnership agreement governing the partnership's affairs); Meeha......
  • Request a trial to view additional results
11 cases
  • Congel v. Malfitano, No. 30
    • United States
    • New York Court of Appeals
    • March 27, 2018
    ...specifying the circumstances under which a partnership may be dissolved is not at will." ( BPR Group Ltd. Partnership v. Bendetson, 453 Mass. 853, 863–864, 906 N.E.2d 956 [2009] [internal quotation marks and citations omitted]; accord e. g.Matter of Popkin & Stern, 340 F.3d 709, 714 [8th Ci......
  • Congel v. Malfitano, No. 30
    • United States
    • New York Court of Appeals
    • March 27, 2018
    ...specifying the circumstances under which a partnership may be dissolved is not at will." ( BPR Group Ltd. Partnership v. Bendetson, 453 Mass. 853, 863–864, 906 N.E.2d 956 [2009] [internal quotation marks and citations omitted]; accord e. g.Matter of Popkin & Stern, 340 F.3d 709, 714 [8th Ci......
  • Medimmune, LLC v. Bd. of Trs. of the Univ. of Mass., No. 0008
    • United States
    • Court of Special Appeals of Maryland
    • June 3, 2015
    ...Id. at 789. The RSV agreement contains no such language.Page 35 UMass also cites BPR Group Limited Partnership v. Bendetson, 906 N.E.2d 956 (Mass. 2009), for support. In that case, the parties disputed the dissolutions of real estate joint ventures. Id. at 957. The partnership agreement exp......
  • Burns v. Taylor, SUCV201500719BLS1
    • United States
    • Superior Court of Massachusetts
    • February 8, 2017
    ...and obligations of the parties are governed by the UPA because no partnership agreement existed. See BPR Grp. Ltd. P'ship v Bendetson, 453 Mass. 853, 863, 906 N.E.2d 956 (2009) (observing that the UPA applies when there is no partnership agreement governing the partnership's affairs); Meeha......
  • Request a trial to view additional results

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