S. Shore Hellenic Church, Inc. v. Artech Church Interiors, Inc.

• Decision Date: 28 April 2016
• Docket Number: CIVIL ACTION NO. 12-11663-GAO
• Citation: 183 F.Supp.3d 197
• Parties: South Shore Hellenic Church, Inc., a/k/a "Nativity-assumption of the Virgin Mary Greek Orthodox Church," "Nativity of the Virgin Mary Greek Orthodox Church," "Nativity of the Virgin Mary/Panagia," "Panagia Greek Orthodox Church," and "Panagia Church," Plaintiff, v. Artech Church Interiors, Inc. and William Burns, Individually, and as President, Artech Church Interiors, Inc., Defendants/Third-Party Plaintiffs, v. Michael J. Cave, Corp., a/k/a Michael J. Cave Corp. of Massachusetts and James J. Amirault d/b/a Jim's Pro Plastering, Third-Party Defendants.
• Court: U.S. District Court — District of Massachusetts

183 F.Supp.3d 197

South Shore Hellenic Church, Inc., a/k/a "Nativity-assumption of the Virgin Mary Greek Orthodox Church," "Nativity of the Virgin Mary Greek Orthodox Church," "Nativity of the Virgin Mary/Panagia," "Panagia Greek Orthodox Church," and "Panagia Church," Plaintiff,

v.Artech Church Interiors, Inc. and William Burns, Individually, and as President, Artech Church Interiors, Inc., Defendants/Third-Party Plaintiffs,

v.Michael J. Cave, Corp., a/k/a Michael J. Cave Corp. of Massachusetts and James J. Amirault d/b/a Jim's Pro Plastering, Third-Party Defendants.

CIVIL ACTION NO. 12-11663-GAO

United States District Court, D. Massachusetts.

Filed April 28, 2016

Frederick P. Zotos, Pathogenics, Inc., Cohasset, MA, for Plaintiff.

John McCormack, Sloane & Walsh, LLP, Boston, MA, for Defendants/Third-Party Plaintiffs.

John F Gleavy, Jr., Francis J. Lynch, III, Lynch & Lynch, South Easton, MA, for Third-Party Defendants.

ORDER ON REPORT AND RECOMMENDATION

O'TOOLE, District Judge.

The magistrate judge to whom this matter was referred has filed a Report and Recommendation (dkt. no. 126) ("R&R") dealing with the several lengthy motions for full or partial summary judgment. One thing made clear from the extensive briefing is that, absent settlement, this case is moving to trial. After having carefully reviewed the relevant pleadings, party submissions, the R&R, and the objections to the R&R, I ADOPT the magistrate judge's recommendations.

Specifically, I agree with the magistrate judge, for essentially the reasons presented in the R&R, that summary judgment is appropriate in favor of Michael J. Cave, Corp. ("Cave Corp.") for (1) the claims for contractual indemnity in Count II of the Third-Party Complaint (dkt. no. 53), (2) the good faith and fair dealing claims in Count III of Third-Party Complaint, and (3) William Burn's claim in Count IV of the Third-Party Complaint. Because there appears to be no material difference in the indemnity claims, absent a later showing otherwise, summary judgment is also appropriate in favor of pro se party James J. Amirault d/b/a Jim's Pro Plastering as to the claims for contractual indemnity in Count VI of the Third-Party Complaint.

I agree as well with the magistrate judge that the plaintiff's motion for partial summary judgment on its Chapter 93 A claim cannot be granted on the disputed record. I go further, however, and conclude that the plaintiff has established as undisputed that, in the transactions at issue, it was not engaged in "trade or commerce" for the purposes of Massachusetts General Laws Chapter 93 A, Section 11. The First Circuit has stated that "where a nonprofit [party] is acting in furtherance of its core mission," it is not engaged in "trade or commerce" within the meaning of Chapter 93 A. SeeKunelius v. Town of Stow, 588 F.3d 1, 18 (1st Cir.2009). Here, the evidence is clear that the plaintiff was seeking at all times to further its core charitable mission, maintaining the physical structure of the church as a safe and sound place for its religious services. There is no contrary evidence. It is not sufficient for the defendants to point out, for example, that repair of a capital asset could be deemed action in the course or advancement of trade or commerce. The evidence in the summary judgment record does not arguably point in different directions. It points unequivocally to the conclusion that the church stewards wanted the church property maintained in good condition so it could continue to be used safely as a church. The facts of the cases cited by the defendants where a nonprofit was found to be acting in the "business context" are vastly dissimilar to those in this case. Cf.Linkage Corp. v. Trs. of Bos. Univ., 425 Mass. 1, 679 N.E.2d 191, 207–09 (1997) (finding a university engaged in "trade or commerce" where it cut a private company out of a lucrative market). The plaintiff's Chapter 93A claim is therefore appropriately grounded in Chapter 93A's Section 9, not Section 11.

As explained above, I ADOPT the magistrate judge's R&R (dkt. no. 126). The plaintiff's Motion for Partial Summary Judgment (dkt. no. 91) is DENIED, except that the claim is to be understood as properly asserted under Section 9 of Chapter 93A. Cave Corp.'s Motion for Summary Judgment (dkt. no. 92) is GRANTED in part to the extent described above and otherwise DENIED. The defendants' Motion for Summary Judgment (dkt. no. 95) is DENIED. The defendants' Motion to Deem Its Statement of Undisputed Material Facts Admitted (dkt. no. 109) is DENIED as determined by the magistrate judge.

It is SO ORDERED.

REPORT AND RECOMMENDATION RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET ENTRY # 91); MICHAEL J. CAVE CORPORATION'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 92); DEFENDANT, ARTECH CHURCH INTERIORS, INC. AND WILLIAM BURNS' MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 95)

MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO DEEM ITS STATEMENT OF UNDISPUTED MATERIAL FACTS ADMITTED (DOCKET ENTRY # 109)

February 19, 2016

BOWLER, United States Magistrate Judge.

Pending before this court are motions for summary judgment filed by defendants Artech Church Interiors, Inc. ("Artech") and William Burns ("Burns") (collectively "defendants") and by third party defendant Michael J. Cave Corporation ("Cave") in this breach of contract action involving repairs to the Panagia Greek Orthodox Church in Cohasset, Massachusetts. (Docket Entry ## 92, 95). Plaintiff South Shore Hellenic Church, Inc. ("SSHC") moves for partial summary judgment on a claim under Massachusetts General Laws chapter 93A ("chapter 93A"), section nine. (Docket Entry # 91). Defendants move to strike various paragraphs in SSHC's Local Rule 56.1 statement of undisputed facts. (Docket Entry # 109). After conducting a hearing, this court took the motions (Docket Entry ## 91, 92, 95) under advisement.

PROCEDURAL BACKGROUND

The amended complaint sets out the following causes of action solely against Artech: (1) breach of contract (Count I); (2) breach of an express guarantee in the contract (Count II); (3) breach of an implied warranty to do a workmanlike job (Count III); (4) negligence (Count IV); and (5) breach of the implied covenant of good faith and fair dealing (Count V). Count VI against Artech and Burns, as an individual and officer of Artech, alleges a violation of chapter 93A, section nine. Plaintiff moves for summary judgment on the chapter 93A claim, alleging that defendants materially breached an "unconditional guarantee." (Docket Entry # 91).

Defendants move for summary judgment on the basis that SSHC lacks Article III standing because it is not a party to the contract. (Docket Entry # 95). Defendants also seek, in the alternative, summary judgment on the chapter 93A claim due to an absence of facts supporting unfair and deceptive business practices. (Docket Entry # 95).

Defendants filed a third party complaint against Cave and James J. Amirault d/b/a Jim's Pro Plastering ("Jim's Pro") (collectively "third party defendants"). The third party complaint sets out the following causes of action brought by defendants against Cave: (1) contribution (Count I); (2) common law indemnification (Count II); (3) breach of contract and the covenant of good faith and fair dealing (Count III);¹ and (4) breach of implied warranty (Count IV). (Docket Entry # 53). The third party complaint also sets out the following causes of action against Jim's Pro: (1) contribution (Count V) ; and (2) common law indemnification (Count VI). (Docket Entry # 53). Cave moves for summary judgment on all of the counts against him. (Docket Entry # 92).

STANDARD OF REVIEW

Summary judgment is designed "to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required."' Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st Cir.2014). It is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is inappropriate "if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir.2014). "'A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party."' Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir.2008). "'[A] fact is material if it has the potential to determine the outcome of the litigation."' Dav i la v. Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.2007).

When "the parties have filed cross-motions for summary judgment, the court must 'determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed."' Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir.2010). Facts and "all reasonable inferences" are drawn "in the light most favorable to the nonmoving party." Id. The factual background includes a number of disputed facts which this court resolved in favor of the non-moving party in the discussion section. Finally, in adjudicating one or more of the summary judgment motions, this court may consider not only the cited materials, but also "other materials in the record." Fed.R.Civ.P. 56(c)(3).

FACTUAL BACKGROUND

SSHC is a corporation organized under Massachusetts law with a stated purpose "[t]o develop and operate an Eastern Orthodox (Greek) Church under the auspices of the Greek Orthodox Church of North and South America." (Docket Entry # 100–2). On November 26, 1980, SSHC purchased the Pope Memorial Church located at 811 Jerusalem Road in Cohasset. (Docket Entry # 100, ¶ 2) (Docket Entry # 112, ¶ 2). SSHC's principle place of business is located at the same address. (Docket Entry # 100, ¶ 3) (Docket Entry # 112, ¶ 3). After the...