COLUMBIA PLAZA ASSOCIATES VS. NORTHEASTERN UNIVERSITY.
SJC-13405
Supreme Judicial Court of Massachusetts
February 29, 2024
Suffolk. October 2, 2023. Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
“Anti-SLAPP” Statute. Redevelopment Authority. Practice, Civil, Motion to dismiss, Summary judgment, Retroactivity of judicial holding, Fraud, Attorney‘s fees. Contract, Construction contract, Performance and breach, Implied
Civil action commenced in the Superior Court Department on December 15, 2020.
A special motion to dismiss or, in the alternative, a motion to dismiss and a motion for summary judgment were heard by Rosemary Connolly, J.; a motion for attorney‘s fees was heard by Jackie A. Cowin, J., and entry of judgment was ordered by her.
The Supreme Judicial Court granted an application for direct appellate review.
Henry F. Owens, III (Richard K. Latimer & Robert Patrick Cooper also present) for the plaintiff.
Daryl J. Lapp (Elizabeth H. Kelly also present) for the defendant.
The following submitted briefs for amici curiae:
Robert S. Mantell, Audrey Richardson, & Emma Hornsby for Massachusetts Employment Lawyers Association & others.
Robert C. Ross for NAIOP Massachusetts, Inc.
Jeffrey J. Pyle for New England First Amendment Coalition.
Mark S. Furman & Emily C. Shanahan for JACE Boston, LLC, & another.
Ruth A. Bourquin for American Civil Liberties Union of Massachusetts, Inc.
KAFKER, J. This case is before us after a judge in the Superior Court allowed Northeastern University‘s (Northeastern‘s) special motion to dismiss various claims, pursuant to
1. Background. a. Facts.2 i. Linkage program. In the late 1980s, the city of Boston (city), through the Boston Redevelopment Authority (BRA), created a “Parcel-to-Parcel Linkage Program” (linkage program) to develop land in its Roxbury section. The linkage program sought to promote urban revitalization and to increase opportunities for minority participation in development by “linking” two parcels of property -- i.e., development of a profitable downtown property was linked to the development of property in Roxbury considered to be less commercially attractive. A development team, with a required minority partner, was to be selected by the BRA. An area identified for development in Roxbury, designated as parcel 18 and consisting of five subparcels (18-1A, 18-1B, 18-2, 18-3A, and 18-3B), is at the heart of the instant dispute.
ii. 1991 agreement and foreclosure. The plaintiff, Columbia Plaza Associates (CPA), was formed for the purpose of participating in the linkage program and developing parcel 18. In 1991, CPA entered into a sale and construction agreement with the BRA (1991 agreement) in which the BRA agreed to sell and CPA agreed to buy parcel 18 or certain subparcels thereof as designated by CPA and approved by the BRA, and CPA agreed to develop the land according to a master development plan approved
Under the 1991 agreement, CPA was allowed to mortgage the subparcels to secure debt related to their acquisition and development. A party acquiring parcel 18 in foreclosure was limited to the three following options: (1) complete construction on the subparcels in compliance with the requirements of the 1991 agreement, (2) sell title to the subparcels to a purchaser who would assume all “covenants, agreements and obligations of [CPA]” under the 1991 agreement, or (3) reconvey fee simple title to the subparcels to the BRA. CPA obtained a mortgage on parcel 18 and built an office building on subparcel 18-1B. For a short time, this building housed the registry of motor vehicles. However, by the mid-1990s, the registry had vacated this location and the building was condemned. CPA‘s mortgage was foreclosed upon, and an affiliate of CPA‘s lender acquired parcel 18 in a foreclosure sale. Northeastern subsequently purchased the land from this affiliate in November 1997. The quitclaim deed conveying parcel 18 to Northeastern also conveyed the affiliate‘s “rights arising under [the 1991 agreement], between [the BRA] and [CPA],” and provided that Northeastern would “assume the obligations set forth in [the 1991 agreement].”
iii. 1999 agreement. On June 30, 1999, the BRA, CPA, and Northeastern executed a “Second Amended and Restated Sale and Construction Agreement” (1999 agreement). The 1999 agreement expressly rendered the 1991 agreement “null and void and of no further force and effect.” The 1999 agreement also stated that Northeastern intended “individually and/or through an affiliated entity of Northeastern meeting the definition of ‘Developer‘” to develop parcel 18. The 1999 agreement defined “Developer” to mean “Northeastern or an affiliated entity of Northeastern, specifically including coventures with CPA, designated by Northeastern
Additionally, the parties agreed in 1999 to enter into a joint venture to acquire the garage parcel (second 1999 agreement). The second 1999 agreement also contained a provision whereby the parties agreed to enter into a joint venture agreement to develop a new building on subparcel 18-3A. Any such joint venture agreement was to be executed by the parties no later than six months after the closing date of the second 1999 agreement or a later date if the parties mutually agreed on an extension. However, the parties never executed any such joint venture agreement within the six-month period and did not agree to extend the deadline.
iv. 2007 development plan. Over the next six years following the 1999 agreement, the parties explored the possibility of developing together a hotel on subparcel 18-3A, including hiring an outside firm to assess its economic feasibility. However, the parties never entered into any formal agreement and, in 2007, Northeastern, in consultation with CPA and the BRA, abandoned plans to develop a hotel or other commercial building on subparcel 18-3A. CPA agreed to the removal of subparcels 18-3A and 18-3B from the development plans so that Northeastern could build a dormitory on those subparcels. In turn, Northeastern agreed to seek to develop a hotel on subparcel 18-1A “in partnership” with CPA. Thereafter, Northeastern and the BRA executed a new development plan (2007 development plan). The 2007 development plan stated that “Northeastern University in partnership with [CPA] . . . intends to proceed with construction on [subparcel 18-1A] (currently anticipated for use as a hotel).” The 2007 development plan also formalized the removal of subparcels 18-3A and 18-3B from the master development plan and the linkage program.
Between 2006 and 2008, the parties discussed development of a hotel on subparcel 18-1A. After several months of silence from CPA in 2008, Northeastern sent a letter to CPA on March 26, 2008, seeking to reinitiate discussions. CPA responded on April 2, 2008, stating that it intended to review the appropriate documents in order to foster an “informed dialogue.” On May 14, 2008, Northeastern sent a letter to follow up with CPA, noting
Nearly one year later, in March 2009, Northeastern communicated to CPA that while the economic situation had deteriorated, raising concerns about the financial viability of the hotel project, Northeastern remained “dedicated to following through on its commitment to . . . proceed with the development of a hotel on Parcel 18.” Northeastern also noted the possibility of obtaining funding for the hotel project and requested a meeting to discuss financing. Afterward, communications between Northeastern and CPA fell silent.
v. Subsequent court proceedings. In 2013, CPA filed suit against Northeastern, raising various contractual and other claims arising out of allegations that Northeastern was contractually required to work with CPA in any development of subparcels 18-3A and 18-3B and that Northeastern‘s decision to build a dormitory on those parcels wrongfully deprived CPA of its development rights (2013 litigation). CPA asserted that Northeastern had concealed its intentions and falsely represented to the BRA that it remained in partnership with CPA in order to obtain the necessary BRA approvals for construction of the dormitory. After a trial, a judge in the Superior Court entered judgment for Northeastern. On appeal, the Appeals Court affirmed the decision of the trial judge, and this court denied CPA‘s application for further appellate review. See Columbia Plaza Assocs. v. Northeastern Univ., 93 Mass. App. Ct. 1113 (2018).
On May 9, 2017, CPA sent a letter to the BRA‘s successor, the Boston Planning and Development Administration (BPDA), demanding that it “compel Northeastern to present CPA with a joint venture for [subparcel 18-1A, i.e., the proposed hotel project], to provide a significant return to CPA, as Northeastern . . . clearly will not do [so] on its own initiative.” On May 25, 2017, Northeastern sent a letter to the BPDA denying CPA‘s claims. Northeastern asserted that it owned all of parcel 18, including “all of the development rights” and that CPA did not own any “development rights in Parcel 18 or any of its sub-parcels.” In support, Northeastern pointed to the trial judge‘s decision in the 2013 litigation, arguing that she had ruled that “CPA does not have -- and never had -- any actual ‘development rights’ in relation to” subparcel 18-3A or 18-1A.
b. Procedural history. In December 2020, CPA commenced the instant suit against Northeastern, alleging breach of contract (counts I and II), breach of the implied covenant of good faith and fair dealing (count III), interference with advantageous economic relations (count IV), unjust enrichment (count V), commercial fraud (count VI), and unfair or deceptive acts in violation of
2. Special motion to dismiss. a. Simplified anti-SLAPP framework. In Bristol Asphalt, 493 Mass. at, also issued today, we have simplified and clarified the existing framework for assessing special motions to dismiss filed under
Under the first stage of this revised framework, the special motion proponent has a threshold burden to show that the challenged
If, however, the claim is based solely on the special motion proponent‘s petitioning activity, the burden shifts to the special motion opponent. See
As we explain in Bristol Asphalt, 493 Mass. at, we abandon the “second path” for defeating the special motion, which allowed a special motion opponent to prevail by demonstrating that its claims were “colorable” and had not been raised for the primary purpose of chilling the special motion proponent‘s legitimate petitioning activity. See Blanchard I, 477 Mass. at 159-161. Additionally, as we also clarify in our companion opinion, a ruling on a special motion to dismiss is subject to de novo review on appeal.
b. Applicability of simplified anti-SLAPP framework to instant case. As an initial matter, we address whether the simplified anti-SLAPP framework that we set forth today applies to the instant case. When this court construes a statute, our holding is presumptively given retroactive application, although we retain discretion to apply the rule prospectively in limited circumstances. See McIntire, petitioner, 458 Mass. 257, 261 (2010),
Our holding today is intended to “give effect to the clear meaning of a statute,” a meaning that has not changed for these purposes since its original enactment. Dellorusso v. PNC Bank, N.A., 98 Mass. App. Ct. 84, 87 (2020). See Davis, supra. This “purpose is best accomplished through retroactive application.” Dellorusso, supra at 87-88. In today‘s decision, we also return to the framework that governed special motions to dismiss for twenty years, until our holding in Blanchard I. Thus we are returning to an earlier interpretation, rather than developing a brand new one, limiting any possible disruptive effect of imposing the change at issue. Accordingly, the simplifications to our existing anti-SLAPP framework, set forth in Bristol Asphalt, 493 Mass. at, also issued today, are applicable to cases in which an anti-SLAPP motion or appeal remains pending as of this court‘s issuance of the rescript in Bristol Asphalt.
i. Stage one: Northeastern‘s threshold burden. Applying the simplified anti-SLAPP framework, Northeastern had a threshold burden to show that the claims at issue were based solely on Northeastern‘s exercise of its right of petition, as defined in
The motion judge, however, distinguished CPA‘s claims for unfair or deceptive acts in violation of
Applying this augmented framework, the motion judge determined that Northeastern was entitled to dismissal of these claims in part. However, under the simplified anti-SLAPP framework we adopt today, such parsing analysis is not appropriate. Because a substantial factual basis for the
ii. Stage two: CPA‘s burden. For count VI, the burden then shifted to CPA, the party opposing the special motion, to show that Northeastern‘s petitioning activity (1) was devoid of any reasonable factual support or any arguable legal basis; and (2) caused CPA actual injury. See
Far from being “devoid” of reasonable support, Northeastern‘s statement was squarely supported by the judge‘s ruling in the 2013 litigation. Although the 2013 litigation concerned whether CPA‘s “rights” to parcel 18 had been extinguished in subparcel 18-3A specifically, and not 18-1A, the judge defined the nature of CPA‘s “rights” as follows: “they were not much better than a fishing license: they essentially gave CPA the opportunity to become a developer on a project provided that it met the BRA‘s rigorous prerequisites, which included a demonstration that it had a specific and economically feasible development plan” (emphasis
3. Adjudication of remaining claims. The motion judge disposed of CPA‘s remaining claims by ruling on Northeastern‘s motion to dismiss for failure to state a claim and the parties’ cross motions for summary judgment. On appeal, both types of motions are subject to de novo review. See Santos v. U.S. Bank Nat‘l Ass‘n, 89 Mass. App. Ct. 687, 691 (2016). Where, as here, both parties have moved for summary judgment, see note 4, supra, we view the evidence in the light most favorable to the party against whom judgment was entered -- here, CPA -- to determine whether all material facts have been established such that the moving party is entitled to judgment as a matter of law. Twomey v. Middleborough, 468 Mass. 260, 267 (2014). See Abrahamson v. Estate of LeBold, 89 Mass. App. Ct. 223, 225 (2016) (applying standard of review applicable to summary judgment where motion to dismiss was converted to motion for summary judgment).
a. Count I -- breach of 1999 agreement. CPA‘s first breach of contract claim is based upon its contention that Northeastern committed a breach of the 1999 agreement by rejecting CPA‘s request to develop subparcel 18-1A in June 2019 and notifying the BPDA of Northeastern‘s intent to develop that subparcel for its sole institutional use. We review the record in the light most favorable to CPA. That record nonetheless reveals that after the 1999 agreement, CPA lost development rights in all the subparcels, except for the right to develop the garage parcel.
To prevail on a claim for breach of contract, a plaintiff is required to demonstrate that “there was an agreement between the parties; the agreement was supported by consideration; the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result.” Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016). To determine the intent of contracting parties, we consider the “words used by the parties, the agreement taken as a whole and the surrounding facts and circumstances.” MCI WorldCom Communications, Inc. v. Department of Telecomm. & Energy, 442 Mass. 103, 112 (2004). If
Section 102(r) of the 1999 agreement states that “for every Phase, the Developer shall be Northeastern or an affiliated entity of Northeastern, specifically including coventures with CPA, designated by Northeastern to develop the applicable Phase . . . . It is hereby agreed that the Developer of the Garage Parcel shall be the Northeastern/CPA Venture.” While this language provides CPA with the right to develop the garage
parcel with Northeastern, it does not grant CPA development rights in any of the other subparcels. Rather, the 1999 agreement specifies that Northeastern “shall be” the developer for every subparcel and that Northeastern may designate an affiliated entity, specifically including CPA, as a developer for the other subparcels.If the parties intended to make CPA a codeveloper for every subparcel, the language in
Moreover, the 1999 agreement extinguished any remaining rights in parcel 18 that CPA might have had under the 1991 agreement. Section 101 of the 1999 agreement states that the 1991 agreement is “null and void and of no further force and effect.” The intent of
CPA nonetheless argues that language in the preamble reveals an intent to amend and restate the 1991 agreement, thus incorporating CPA‘s development rights under the 1991 agreement into the 1999 agreement: “the [BRA], Northeastern and CPA wish to further amend and restate the terms of the Original Sale Agreement and Original Amended Sale Agreement as set forth herein.” While recitals may assist us in interpreting the body of the 1999 agreement, they do not create enforceable rights in and of themselves. See Cullinet Software, Inc. v. McCormack & Dodge Corp., 400 Mass. 775, 776 n.1 (1987). Here, the general language contained in the preamble is undercut by the more specific statement in
“[A]n unambiguous agreement must be enforced according to its terms.” Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 706 (1992). By its terms, the 1999 agreement states that (1) the 1991 agreement, including any development rights conferred to CPA, was rendered “null and void,” and (2) except for the garage parcel, CPA did not have any development rights in parcel 18. Therefore, Northeastern did not commit a breach of the 1999 agreement by seeking to unilaterally develop subparcel 18-1A and the Superior Court correctly granted summary judgment on count I in Northeastern‘s favor.
b. Count II -- breach of 2007 agreement. CPA‘s second breach of contract claim centers around its assertion that Northeastern‘s attempt to unilaterally develop subparcel 18-1A violated an unwritten agreement between the parties in 2007 (2007 agreement), in which CPA surrendered its rights in subparcels 18-3A and 18-3B in exchange for development rights on subparcel 18-1A. CPA appears to find proof of the 2007 agreement in the 2007 development plan, in which Northeastern removed subparcels 18-3A and 18-3B from the original development plan and stated its intent to develop a hotel on subparcel 18-1A “in partnership” with CPA. CPA‘s second breach of contract claim also fails.
Moreover, any oral agreement would be unenforceable under the Statute of Frauds. See
The 2007 development plan similarly does not “contain directly, or by implication, all of the essential terms of the parties’ agreement.” See Simon v. Simon, 35 Mass. App. Ct. 705, 709 (1994) (holding lease agreement did not satisfy Statute of Frauds where it failed to define lease duration). It states that Northeastern, in partnership with CPA,
“intends to proceed with construction on [subparcel 18-1A] (currently anticipated for use as a hotel) as contemplated by the [2007] Development Plan, continuing the revitalization of the development now known as Renaissance Park. The purpose of this Development Plan is to remove [subparcels 18-3A and 18-3B] . . . from the Development Area and to rescind the Master Plan, prior to proceeding with development on [subparcel 18-1A].”
While this suggests the outline of a possible agreement, the 2007 development plan itself is at most a statement of intent. See Schwanbeck, 412 Mass. at 706-707 (“[a] promise made with an understood intention that it is not to be legally binding, but only expressive of a present intention, is not a contract” [citation omitted]).
Indeed, the references to “proposed” actions and “anticipated uses,” and the use of the future tense throughout, suggest an intent to set forth preliminary terms that were to be finalized at a later date. Mendel Kern, Inc., 400 Mass. at 279 (statements in future tense of actions to be taken indicative of future contractual intent, not existence of current agreement). While a valid contract may be “contingent on future events,” the contract must “provide mechanisms to narrow present uncertainties to rights and obligations.” Lafayette Place Assocs. v. Boston Redev. Auth., 427 Mass. 509, 518 (1998), cert. denied, 525 U.S. 1177 (1999). Here, many aspects of the development are merely proposed and thus subject to change until approved by the BRA. Accordingly, it does not create a binding contract. Contrast id. (holding that agreement was enforceable, despite lack of firm purchase price, because agreement provided for pricing formula and “most of the information needed to complete that formula was available“).
Nor can the 2007 agreement be enforced against Northeastern under the theory of promissory estoppel.7 Promissory estoppel requires “(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.” Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 27-28 (2006), quoting Bongaards v. Millen, 440 Mass. 10, 15 (2003). A promissory estoppel claim “is equivalent to a contract action, and the party bringing such an action must prove all the necessary elements of a contract other than consideration.” Rhode Island Hosp. Trust Nat‘l Bank v. Varadian, 419 Mass. 841, 850 (1995). However, as discussed above, both the 2007 agreement and the 2007 development plan are statements of intent or agreements to negotiate, not unambiguous promises to develop property with CPA. See id. (rejecting promissory estoppel claim where evidence failed to support finding that “‘promise’
actions that it took in reliance on Northeastern‘s alleged promise to develop a hotel with CPA on subparcel 18-1A, or any detriment suffered as a result. Contrast Sullivan, 448 Mass. at 28-29 (plaintiffs stated claim for promissory estoppel where they alleged that they had refrained from suing defendant in reliance on defendant‘s promises to address safety concerns in office building).
c. Count III -- breach of the implied covenant of good faith and fair dealing. We turn next to CPA‘s claim that Northeastern committed a breach of the implied covenant of good faith and fair dealing. “Every contract implies good faith and fair dealing between the parties to it” (citation omitted). Anthony‘s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991). However, the covenant does not create new rights and duties not already provided for in the contract. Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 385, cert. denied sub nom. Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005) (“The scope of the covenant is only as broad as the contract that governs the particular relationship“). Accordingly, because the 1999 and
Acknowledging these rights in relation to subparcel 18-1A, without more, is not an unambiguous promise by Northeastern to develop a hotel on that parcel. Cf. Upton v. JWP Businessland, 425 Mass. 756, 760 (1997) (rejecting plaintiff‘s estoppel argument on basis that no enforceable promise existed, where plaintiff asked about regular work hours, and was so informed, but ultimately worked much later hours).
2007 agreements did not create any contractual obligation for Northeastern to involve CPA in the development of subparcel 18-1A, Northeastern‘s failure to do so cannot constitute a breach of the covenant of good faith and fair dealing. Contrast Anthony‘s Pier Four, Inc., supra at 471-473 (refusal to approve changes to developer‘s plan constituted breach of implied covenant where developer had already spent years working on development and approval was unreasonably withheld in order to extract more favorable concessions).
d. Counts VII and VIII -- unfair or deceptive business practices in violation of G. L. c. 93A. We turn to CPA‘s claims that Northeastern violated
Viewed in the light most favorable to CPA, the facts show no conduct by Northeastern that rises to the level of an unfair or deceptive practice. The record before us only establishes that Northeastern refused to deal with CPA after multiple unsuccessful attempts to advance the hotel project. See PMP Assocs., Inc., 366 Mass. at 596. And contrary to CPA‘s contention, this case is markedly dissimilar to Anthony‘s Pier Four, Inc., 411 Mass. at 453 n.3, 467-468, where the underlying contract clearly required that the landowner work with the developer on the development of the property. Here, Northeastern had no contractual obligation to involve CPA and thus did not act unfairly or deceptively in repudiating CPA‘s claims. Nor did Northeastern use its refusal to deal to extract some sort of benefit from CPA. Contrast H1 Lincoln, Inc., 489 Mass. at 15 (unfair trade practice where defendant provided “pretextual and unreasonable grounds” for terminating lease and then offered to reinstate lease to extract financial concessions from plaintiff); Anthony‘s Pier Four, Inc., supra at 473.
Lastly, we consider whether Northeastern‘s characterization of the 2013 litigation in its letter to the BPDA constitutes a deceptive business act or practice. As discussed supra in our discussion of the special motion to dismiss, Northeastern‘s characterization
e. Count IV -- intentional interference with advantageous economic relationship. To succeed on a claim for intentional interference with advantageous relations, a plaintiff must prove that
“(1) [it] had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant‘s interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant‘s actions.”
Blackstone v. Cashman, 448 Mass. 255, 260 (2007).
The improper means or motive required to support a claim for intentional interference is “actual malice” or “a spiteful, malignant purpose, unrelated to the legitimate corporate interest” (citations omitted). King v. Driscoll, 418 Mass. 576, 587 (1994), S.C., 424 Mass. 1 (1996). “The motivation of personal gain, including financial gain, however, generally is not enough” to constitute improper motive. Id.
Here, the requirements are not satisfied. In particular, CPA has identified no improper motive or means as required by our case law. Viewed in the light most favorable to CPA, the record establishes only that Northeastern acted in its own corporate self-interest when it sought to develop subparcel 18-1A for its own institutional use after multiple unsuccessful attempts to advance the hotel project. This, without more, is not an improper means or motive. See King, 418 Mass. at 587. See also Pembroke Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass. App. Ct. 34, 39 (2004) (defendant‘s “legitimate advancement of its own economic interest” was not improper motive or means for purposes of tortious interference claim). Accordingly, CPA was not entitled to relief on this claim as a matter of law.
f. Count V -- unjust enrichment. CPA‘s claim for unjust enrichment similarly fails as a matter of law. Unjust enrichment is
CPA‘s unjust enrichment claim fails because the record does not establish a monetary or property benefit that CPA conferred on Northeastern. See Tedeschi-Freij v. Percy Law Group, P.C., 99 Mass. App. Ct. 772, 780 (2021) (attorney‘s unjust enrichment claim, based on law firm‘s continued use of her name after she had departed firm, failed as matter of law where record contained no evidence that firm derived quantifiable benefit from continued use of name). Contrast Liss v. Studeny, 450 Mass. 473, 479 (2008) (lawyer‘s competent representation of client in course of lawsuit conferred “measurable benefit” to client, notwithstanding fact that lawsuit was ultimately unsuccessful).
g. Counts IX and X -- declaratory and injunctive relief. CPA‘s complaint also requested entry of a judgment declaring that Northeastern must include CPA on any development of subparcel 18-1A or otherwise compensate CPA for the value of such development, as well as an injunction mandating that Northeastern negotiate in good faith with CPA for payment of the “fair and reasonable value” of CPA‘s alleged development rights in subparcel 18-1A as a condition precedent to proceeding with its development application before the BPDA. Both counts fail as a matter of law because CPA has no development rights for which Northeastern must provide compensation. See School Comm. of Cambridge v. Superintendent of Sch. of Cambridge, 320 Mass. 516, 518 (1946) (declaratory judgment available if party demonstrates it has “definite interest” in legal right denied by another). See also Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 353 n.3 (1st Cir. 2013) (noting that injunctive relief is not stand-alone cause of action under Massachusetts law).
4. Attorney‘s fees. Finally, we address the issue of attorney‘s fees in light of CPA‘s contention that Northeastern should not have been awarded attorney‘s fees under
Because Northeastern was entitled to attorney‘s fees under the statute, and because CPA does not argue that the amount awarded was unreasonable, we do not consider the reasonableness of the award on appeal. See McLarnon, 431 Mass. at 349-350. In its brief, Northeastern has requested an award of appellate attorney‘s fees and costs as well. Because we affirm the ruling of the motion judge allowing the special motion to dismiss as to count VI, Northeastern is entitled to such an award. See Benoit v. Frederickson, 454 Mass. 148, 154 (2009). Accordingly, within fourteen days of issuance of the rescript in this matter, Northeastern may file a petition for reasonable appellate attorney‘s fees and costs in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). See O‘Gara v. St. Germain, 91 Mass. App. Ct. 490, 501 (2017).
5. Conclusion. We affirm the allowance of Northeastern‘s special motion to dismiss count VI of CPA‘s complaint. We also affirm the entry of partial summary judgment in favor of Northeastern on counts I, II, III, VII, and VIII, as well as the allowance of Northeastern‘s motion to dismiss counts IV, V, VI, IX, and X.9
Judgment affirmed.