Buster v. George W. Moore, Inc.

• Decision Date: 11 February 2003
• Citation: 783 NE 2d 399,438 Mass. 635
• Parties: JEFFREY BUSTER, individually and as trustee, & others v. GEORGE W. MOORE, INC., & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 635

783 NE 2d 399

JEFFREY BUSTER, individually and as trustee,¹ & others² v. GEORGE W. MOORE, INC., & others.³

Supreme Judicial Court of Massachusetts, Middlesex.

October 7, 2002.

February 11, 2003.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, & CORDY, JJ.

David J. Fine for Jeffrey Buster & others.

Paul Killeen (Edward J. Naughton with him) for the defendants.

Andrew G. Lizotte, for Harold B. Murphy, was present but did not argue.

MARSHALL, C.J.

In this factually complex case, we are asked to consider, among other issues, whether economic coercion, in the absence of actual or potential physical coercion, may in any circumstance constitute "threats, intimidation or coercion" within the meaning of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I (act).⁴ We conclude that economic coercion alone may constitute "threats, intimidation or coercion" in violation of the act, but that the plaintiffs have failed to demonstrate such actionable coercion in this case. We affirm the Superior Court's judgments and orders with regard to all matters appealed from by the plaintiffs and by one defendant.

1. Background. The plaintiffs and one defendant, Goffe, Inc. (Goffe), appeal from judgments and orders entered by a Superior Court judge. The plaintiffs, a trustee and two beneficial owners of a real estate trust, filed an amended complaint alleging that the defendants Goffe; Duffy Brothers Management Co., Inc.; and Norman J. Duffy, Robert L. Duffy, and Kevin Duffy (Duffys) violated the act (Count II) and G. L. c. 93A, § 11 (Count III), and intentionally interfered with their contractual and advantageous relations with the defendant George W. Moore, Inc. (Moore) (Counts VII and VIII), all in connection with a real estate dispute.⁵ Goffe counterclaimed that the plaintiffs committed a breach of a settlement stipulation entered into with Goffe in certain bankruptcy proceedings and that the plaintiffs' reneging on the agreement was an unfair or deceptive business practice in violation of G. L. c. 93A.

On April 27, 2000, after conducting an eight-day jury-waived trial on the issues of liability, a Superior Court judge issued a lengthy memorandum that made extensive findings of fact and conclusions of law and entered an order for judgment for the defendants on all four of the plaintiffs' claims. The plaintiffs filed a motion for reconsideration on, among other things, the ground that two decisions issued after the judge's order, Brunelle v. Lynn Pub. Schs., 433 Mass. 179 (2001), and Kattar v. Demoulas, 433 Mass. 1 (2000), demonstrated error in certain of the judge's key conclusions of law. On July 24, 2001, the judge denied the plaintiffs' reconsideration motion and allowed the plaintiffs' motion for summary judgment on both counts of Goffe's counterclaim. On October 9, 2001, the judge entered partial final judgments on both the plaintiffs' claims described above and Goffe's counterclaim.

In addition to appealing from both the April, 2000, and the October, 2001, judgments, the plaintiffs appeal from the judge's pretrial discovery order denying their motion to compel, the order denying two motions to make additional findings of fact and amend the judgment, and the order denying the plaintiffs' reconsideration motion. Goffe appeals from the adverse summary judgment ruling. We granted the plaintiffs' application for direct appellate review.

2. Facts. We summarize the judge's findings of fact, supplementing these findings with undisputed material of record where necessary. We reserve some details for later discussion.

(a) The parties and the properties. Beginning in 1973, the defendants began to acquire property on Waverly Oaks Road in Waltham, and by 1996, they had purchased enough land to build a retail shopping center, to be located at 313 Waverly Oaks Road. One of the pieces of the Duffys' Waverly Oaks Road land abutted the plaintiffs' property, located at 110 Beaver Street.⁶ The plaintiffs' property contained two buildings that the plaintiffs sought to develop as commercial rental property.

Before the Duffys could begin developing the shopping center, which was on land designated as a wetlands site, they were required to obtain an "order of conditions" (essentially a permit) from the conservation commission of the city of Waltham (commission). See G. L. c. 131, § 40. As part of this permitting process, the Duffys were statutorily required to notify all abutters, including the plaintiff Jeffrey Buster about the proposed work. Buster attended all four hearings the commission held to consider the Duffys' development proposals. At the hearings, Buster objected to the proposed development because, he asserted, the project would adversely affect the flood storage capacity of the Duffys' Waverly Oaks Road property and subsequently the trust's property. The judge found that Buster "devoted a considerable amount of time, effort, and money to persuade the [commission] to deny the [o]rder of [c]onditions." However, after conducting two site visits and hearing testimony from its own consultant, the commission voted unanimously to issue the order of conditions.

Buster appealed from the commission's order of conditions to the Department of Environmental Protection (department). The department accepted the appeal and sent a letter to the Duffys ordering them not to commence their project until a superseding order of conditions had issued and all relevant appeals periods had lapsed. See G. L. c. 131, § 40. The judge found, and the parties do not dispute, that the department appeals process would have taken approximately two to three years to complete.⁷ Buster also filed a complaint in the Superior Court requesting that the order of conditions be vacated.

(b) Goffe's purchase of the promissory note and mortgage. The Duffys were convinced that Buster's appeal was frivolous and an attempt at "economic blackmail," although Buster insisted otherwise. At about the time that Buster filed the appeal with the department and the lawsuit, the Duffys received information that the plaintiffs' 110 Beaver Street property was "in trouble." They learned that Moore held a promissory note from Buster, as trustee of the 110 Beaver Street Trust, secured by a mortgage on the property at 110 Beaver Street, that Buster was in default of the note and his mortgage payments under the note, and that there were actual or potential tax, zoning, and environmental problems with the property. The Duffys, through the Duffy-held entity Goffe, purchased the note and mortgage from Moore in November, 1996.⁸ The judge found that, while "admittedly a close question," the Duffys' primary purpose in acquiring the note and mortgage was to "induce" Buster to withdraw his appeal and his lawsuit. The judge also found, however, that the Duffys recognized that purchasing the mortgage was, in and of itself, a "sound business" move.

In the judge's words, Buster "immediately recognized" that the Duffys' acquisition of the note and mortgage "was not good news." After learning of the transaction, the plaintiffs requested a meeting with the Duffys to discuss the status of the property. At the meeting, the plaintiffs asked the Duffys for financing, and Buster initiated discussion about the appeal, proposing that the Duffys pay for a dam on Federal property across the street from 313 Waverly Oaks Road as a way to resolve his flood storage concerns. The Duffys told Buster that, although they did not own this property, they would look into the idea of a dam. They also requested that the plaintiffs put together a business plan detailing their plans to cure the default.

At a subsequent meeting, however, the plaintiffs, represented by Buster and McGinty, put forward no such plan. When it became clear to the Duffys that Buster did not intend to offer a settlement proposal, the Duffys presented Buster and McGinty with two options. Under the "buy-out" option, Buster would execute a deed transferring the property to the Duffys and would withdraw both the appeal to the department and the Superior Court action. In return, the Duffys would pay Buster and the trust $100,000 in three instalments, with the last payment of $50,000 due "six months after the foreclosure if there were no further challenges to the Duffys' plans for the shopping center development." Under the "forbearance" option, Buster would keep the property, sign a forbearance agreement, enter in a payment plan crafted by the Duffys, and withdraw the department appeal and the Superior Court action.⁹ Buster and McGinty rejected both options. The Duffys decided to pursue foreclosure. (c) Foreclosure, bankruptcy, and inspection. The initial foreclosure sale was scheduled for February 7, 1997.¹⁰,¹¹ However, on or just before that date, the plaintiffs filed for bankruptcy protection under chapter 11 in the United States Bankruptcy Court for the District of Massachusetts, thereby triggering an automatic stay of the foreclosure auction.¹² Goffe subsequently filed a motion in the Bankruptcy Court to lift the stay.

While Goffe's motion was pending before the Bankruptcy Court, the Duffys met with the mayor of Waltham to persuade the city to inspect the 110 Beaver Street property for fire and safety violations, a request they had made in vain at least three months earlier to the city's deputy fire chief. In the wake of the meeting with the mayor, an inspection took place that revealed many serious fire and safety violations on the property and the fact that the property had been "buil[t] out" and leased to tenants without the proper building permits and certificates of occupancy. On June 24, 1997, the city's building commissioner issued a cease and desist order, ordering Buster to stop all construction work and to cease and desist all occupancies at 110 Beaver Street.

On July 23, 1997, one day before the scheduled hearing on Goffe's motion for relief from the stay, the 110 Beaver Street Partnership and Goffe...