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COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, ss SUPERIOR COURT
CIVIL ACTION NO. 17-899
H1 LINCOLN, INC, d/b/a MAJESTIC
HONDA,
Plaintiff, Amp,
UPPER Coy
OR
Vv Fy ED CURT
NTy
JUN
SOUTH WASHINGTON STREET, LLC, 26-20%
AND 849 SOUTH WASHINGTON
STREET, LLC,
CLR Or kl ~
Defendants. CURR
DEFENDANTS’ MOTION TO BIFURCATE TRIAL
Defendants South Washington Street, LLC and 849 South Washington Street, LLC
(collectively, the “Landlord”) move pursuant to Mass. R. Civ. P. 42 to bifurcate the trial into
liability (i.e. resolving the rights under Lease) and damages phases.
INTRODUCTION
This is an action asserted by the former tenant, H1 Lincoln, Inc. d/b/a Majestic Honda
(“Tenant”), against the Landlord, for breach of a lease (the “Lease”) of property located at 849
and 865 South Washington Street, North Attleboro, Massachusetts (the “Property”). Specifically,
the Landlord exercised its right to withhold consent to the Tenant’s proposed construction plan,
the Lease was terminated (by its terms) and the Tenant then filed this action claiming that the
Landlord’s withholding of consent was “commercially” unreasonable and seeking to invalidate
the termination. Based upon this alleged conduct, the Tenant has asserted claims for breach of
contract, breach of the covenant of good faith and fair dealing, declaratory judgment and
AD
violation of Chapter 93A and seeks monetary relief and specific performance in the form of an
order requiring the Landlord to “rescind the termination of the Lease,” “approve the Plaintiff's
improvement plans,” and “honor and comply with the Lease forthwith.”!
By this Motion, the Landlord seeks to bifurcate the trial for several reasons. First,
resolving the rights under Lease before damages, will potentially eliminate any evidence on
damages because the jury determines that the Landlord’s conduct was reasonable (and, thus,
there was no breach) or because the Court grants the specific performance requested by the
Tenant. Second, the damages evidence involves at least two expert witness (and several lay
witnesses) who will provide complex, time-consuming and speculative testimony on “future”
damages. This testimony is not required to determine the rights under the Lease and may be
moot upon the Court’s grant of an order of specific performance. Third, the elimination of
damages testimony and evidence will simplify the trial for the jury. The only issue for the jury
to resolve will be the reasonableness of the Landlord’s withholding of consent.
BACKGROUND
Alfredo Dos Anjos (Anjos”), the founder, owner and operator of the Pride Auto Group,
owns the Property through two limited liability companies. The Property was a former car
dealership operated by Anjos and consisted of two contiguous parcels of land located on Route 1
in North Attleboro, Massachusetts.”
1
Specific performance is an equitable remedy which compels the performance of a
contract in the precise terms agreed upon. Black’s Law Dictionary, 10 ed (2014). Here by
requesting as its remedy an order compelling the Landlord to comply with the terms of the
Lease, the Tenant has requested specific performance.
2 James Balise and others testified that the Property is located on what is commonly known
as the “auto mile” and a prime location for a dealership.
2
James Balise (“Balise”), is the president of Balise Motor Sales Company which owns and
operates twenty-two auto dealerships including Majestic Honda, a recently purchased dealership
in West Warwick, Rhode Island. Recognizing the limitations of the existing location of the
Majestic dealership, on or about August 22, 2016, Balise (with the assistance of Joshua Teverow >
a lawyer who represented both Balise and Anjos) and the Landlord negotiated a lease which was
signed on or about October 28, 2016 (the “Lease”). The Lease included a provision that required
the Landlord’s permission for any proposed new construction or demolition of existing buildings
at the Property. Specifically, Section 2(a) of the Lease provides that:
If Tenant determines that either or both of the Existing Buildings
will need to be demolished in connection with Tenant’s planned
use of the Property or that any new buildings need to be
constructed (“New Buildings”) Tenant shall give Landlord written
notice of such determination within the Feasibility Period
(“Demolition/New Buildings Notice”)... Demolition/New
Buildings Notice shall include preliminary site plans and
elevations for Tenant’s proposed development of the Property,
which shall be in reasonable detail... Within fifteen (15) days after
Landlord’s receipt of the Demolition/New Building Notice
Landlord shall have the right to terminate this Lease by
written notice to Tenant if Landlord reasonably withholds
consent to such new construction in which event this Lease
shall terminate as of the date of the Landlord’s written notice and
the parts shall have no further obligation to one another except
those obligations that expressly survive termination hereunder
xO OK
Notwithstanding the foregoing, Landlord acknowledges that
Tenant’s present intention it to demolish the 865 Building and the
849 Building and replace with a prototypical Honda dealership
facility. Tenant shall submit to Landlord during the Feasibility
Period a prototypical elevation showing the materials and general
architectural appearance of the Honda dealership facility and
reasonably detailed plans for Tenant’s proposed improvements
for review and approval of Landlord which such approval
shall not be unreasonably withheld.
.
After the Lease was signed, Balise completed his preliminary diligence and on or about
July 25, 2017, issued a notice of his intent to demolish buildings, and construct a “new larger
building over the site.” With the notice, Balise included a site plan and elevation (the “Site
Plan”) for the Landlord’s review and approval.
Unbeknownst to the Landlord, by deed dated July 30, 2017, Balise purchased a lot
abutting the Property (the “Abutting Lot”) through a “straw” to conceal his identity. The Site
Plan submitted by Balise merged the Property and the Abutting Lot, eliminated a curb cut and
relied upon the total square footage for all three lots to comply with the zoning requirements.
By letter dated August 9, 2017, the Landlord withheld consent for the “proposed new
construction on the leased premises as set forth in the proposed elevation and site plan...and”
terminated “said Lease.” The Landlord justified withholding consent based upon the Site Plan
which:
Depicts additional land not owned or controlled by the landlord
that will likely be part of a special permit application of a planned
business development with the Town of North Attleboro,
Massachusetts. Should such special permit be granted based on
the site plan presented at the conclusion of the Lease the Landlord
may be left without one or more buildings that violate any special
permit that may issue. In additional the Landlord is unwilling to
place the parcels that comprise the leased premises in common
ownership nor grant easements permitting the common use of any
planned access drives and/or utility systems.
On December 17, 2017, the Tenant filed this action, asserted claims for declaratory
judgment, injunctive relief, breach of contract, breach of the covenant of good faith and fair
dealing and violation of Chapter 93A and requested relief in the form of:
an order requiring the Landlord to specifically perform its obligations under the
Lease “approve Plaintiff's improvement plans as commercially reasonable” and
“rescind the termination of the Lease;” and
. payment of “monetary damages.”
The Tenant has estimated the length of trial to be ten (10) days, identified eleven (11)
witnesses including Todd Berko, an alleged valuation expert (one of seven so-called expert
witnesses designated by the Tenant). The Tenant has represented the Berko is
Expected to testify that as a result of the plaintiff not being able to
proceed in addition to the funds expended to date, the plaintiff
suffered significant future damage.
The Landlord has identified Rick Parmelee as a rebuttal valuation expert.
ARGUMENT
BIFURCATION WILL EXPEDITE THE RESOLUTION OF THE CLAIMS.
Bifurcation of the determination of rights under the Lease from damages will
expeditiously and effectively resolve the claims without prejudice to any party. Mass. R. Civ. P.
42 authorizes a court in its discretion:
in furtherance of convenience or to avoid prejudice,.or when
separate trials will be conducive to expedition and economy, may
order a separate trial of any claim...or of any separate issue or any
number of claims or issues.
Mass. R. Civ. P. 42(d). By its terms, Rule 42 confers upon the Court discretion to “deal with the
exigencies of litigation by separating parties, claims and issues in order “to secure the just speedy
and inexpensive determination of every action.” Roddy & McNulty Insurance Agency, Inc. v.
AA Proctor & Co., 16 Mass. App. Ct. 525, 529 (1983). Under Rule 42 the Court is permitted to
consider the “convenience of adjudication, the avoidance of prejudice and the interest of
expedition and economy as dictated by the characteristics and elements of proof of the claims
themselves” to determine a request to bifurcate. Id. “Separation of the issues of liability and
damages is an obvious use of Rule 42 since logically liability must be established before
determining damages.” Kisteneffv. Tiemam, 514 F.2d 896, 897 (1st Cir. 1975). This is a
recognition that complex damages testimony delays the trial, confuses the trier of fact and may
impact and impair the jury’s objectivity on issues of liability. Soave v. Purity Supreme Inc., No
CA 981173, 2000 WL 1273824, at *1 (Mass. Super. Ct. May 24, 2000) (bifurcating case
recognizing that the “the damages aspect of this case is complicated and would require in any
event a significant amount of trial time to present.”); Carlesis v. P&G Bowling Corp., No CA
9300210, 1995 WL 808928 at *2 (Mass Super. Ct. Jan. 10 1995) (bifurcating case based upon
conservation of expenses and expediting the trial process); Industrias Metalicas Marva Inc. v.
Lausell, 172 F.R.D. 1, 2 (D.P.R. 1997) (bifurcation favored where issues can be rendered moot
“before vast resources are wasted litigating them’).
Here, bifurcating the determination of rights under the Lease and money damages will
potentially eliminate trial preparation costs, jury confusion and trial time related to the complex
claim of future damages. See Novopharm Ltd v. Torpham, Inc., 180 FRD 308, 312 (E.D.N.C.
1998) (granting motion to bifurcate liability and damages at trial); Industrias Metalicas Marva
Inc., 172 F.R.D. at 2 (granting motion to bifurcate into separate trials on liability and damages).
Without the issue of damages, the first (and possibly only) phase of the trial will be limited to a
determination by the jury of the reasonableness of the Landlord’s withholding of consent to
construction.> See Worcester Tatnuck Square CVS, Inc., 33 Mass. App. Ct. 499, 503 (1992)
(whether a landlord unreasonable withholds consent is an issue of fact). Neither testimony of
expert witnesses nor evidence of any alleged damages are necessary for a jury to determine the
3 The Tenant has the burden of proof to establish that Landlord’s withholding of consent was
unreasonable. Restatement Second of Property Landlord & Tenant, § 15.2 cmt g (the party
seeking the consent proceeds at his risk if he goes through with the proposed transfer. The
burden of proof will be on him to establish that the reason or reasons advanced are
unreasonable.); see also Morgan Products Ltd v. Park Plaza of Oshkosh, Inc., 229 Wis. 2d 231,
238 (1999) (“Tenant bears the burden that the reasons advanced by the landlord are
unreasonable.”).
Landlord’s “reasonableness.” Restatement Second of Property, Landlord & Tenant §15.2 (“A
reasons for refusing consent, in order for it to be reasonable must be objectively sensible and of
some significance and not based on mere caprice or whim or personal prejudice.”). Rather, the
jury would consider the Landlord’s testimony, including its justification for withholding consent
to the construction, and test the Landlord’s withholding of consent against the “usual standards
of reasonableness” (i.e., are these objectively reasonable reasons for withholding consent?).4 See
Safeway Inc. v. CESC Plaza Ltd Partnership, 261 F.Supp.2d 439, 462 (E.D. Va. 2003)
(recognizing that there is “no requirement that a party withholding consent to a proposed change
perform an independent study of the effects of a proposed change”).
Il. THE TENANT’S CLAIM FOR SPECIFIC PERFORMANCE MAY PRECLUDE
THE NEED FOR INTRODUCTION OF MONETARY DAMAGES
The Tenant’s request for specific performance (if granted) would render moot any
monetary relief. Specific performance is not a claim but rather an equitable remedy compelling
the performance of a contract. Black’s Law Dictionary, 10" ed (2014). An aggrieved party to a
contract is not entitled to both monetary relief and specific performance. See KGM Custom
Homes, Inc. v. Prosky, 468 Mass. 247 (2014) (“Ordinarily an aggrieved party to a contract is not
entitled to both remedies). Instead, if a party is provided the benefit of its contract by compelling
specific performance, any monetary damages are rendered moot. Id.°
4
The Tenant has identified three “expert” witnesses to testify upon the “reasonableness” of
withholding consent, including the Tenant’s own principal, Balise. This testimony is cumulative
(and, therefore, it is unlikely it will be admitted) and, even if it was not cumulative, it is pure
opinion testimony on the issue to be determined by the jury and is, therefore, inadmissible.
5
Nor is there a right to a jury trial on the claim of specific performance. See St Fleur v.
WPI Cable Systems/Mutron, 450 Mass. 345, 353 (2007); McInnes v. LPL Fiancial LLC, 466
Mass. 256 (2013); Commissioner of Banks v Harrigan, 291 Mass. 353, 355 (1935) (if the subject
matter of the cause of action is equitable the defendant has no right to a trial by jury).
Here, the Tenant’s request in the form of an order compelling the Landlord to perform
certain obligations under the Lease would render moot any monetary damages. In particular, the
Tenant has requested that the Court order the Landlord to:
e “approve Plaintiff's improvement as commercially reasonable,”
. “approve the Plaintiff's improvement plans;”
. “rescind the termination of the Lease” and
e “honor and comply with the Lease forthwith.”
(Comp.,“[P]rayers for relief”).
Til. INTRODUCTION OF DAMAGES MAY IMPACT THE JURY’S OBJECTIVITY
The damages evidence may impact the jury’s determination of liability under the Lease
and, therefore, the case should be bifurcated. Bifurcation is particularly appropriate where
evidence relevant to one issue or party in a case poses a threat to the jury's objectivity with
respect to other issues or parties. See, e.g., Ismail v. Cohen, 706 F. Supp. at 251 (prejudice may
occur when evidence is admissible only on a certain issue and there is a danger that the evidence
will “contaminate” the minds of jurors on issues with respect to which the evidence would be
inadmissible and irrelevant); Helminski v. Ayerst Laboratories Division of American Home
Products Corp., 766 F.2d 208, 212 (6th Cir.), cert. denied, 474 U.S. 981 (1985) (bifurcation of
proceedings into separate trials is appropriate when evidence relevant to a specific issue could
have a prejudicial impact upon the jury's determination of another aspect of the case); 9 Wright
& Miller, Federal Practice and Procedure § 2388 (1995 ed.) (“If a single issue could be
dispositive of the case or is likely to lead the parties to negotiate a settlement, and resolution of it
might make it unnecessary to try the other issues in the litigation, separate trial of that issue may
be desirable to save the time of the court and reduce the expenses of the parties“).
Here, the evidence of damages (both alleged actual damages in the form of preliminary
costs and other expenses to prepare the Site Plan and “future” damages) are wholly irrelevant to
the jury’s determination of the reasonableness of the Landlord’s withholding of consent. But this
evidence may confuse the jury and generate sympathy for the Tenant, which could influence the
determination of liability.
WHEREFORE, for the reasons set forth above, in the interest of judicial economy and
efficiency, and for convenience, the Landlord requests this Court bifurcate the trial into liability
and damages phases.
SOUTH WASHINGTON STREET, LLC and
849 SOUTH WASHINGTON STREET, LLC
By their attorneys:
Tur nen)
DAVID C. MANOOGIAN, Esquire
Carriage Court
149 Pleasant Street
Attleboro, MA 02703
Phone: (508)226-4000
BBO No. 318260
CERTIFICATE OF SERVICE E:mail: dmanoog]149@aol.com
Thereby certify that a true Copy of the above
document
Was served upon the attorney of record
for each other
hw
party by (hand) 3 We
v
RICHARD E. BRIANSKY, Esquire
McCarter & English, LLP
265 Franklin Street
Boston, MA 02110
Phone: (617)449-6568
BBO No. 632708
E-mail: rbriansky@mccarter.com
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¢ 2 COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss SUPERIOR COURT CIVIL ACTION NO. 17-899 H1 LINCOLN, INC, d/b/a MAJESTIC HONDA, Plaintiff, Amp, UPPER Coy OR Vv Fy ED CURT NTy JUN SOUTH WASHINGTON STREET, LLC, 26-20% AND 849 SOUTH WASHINGTON STREET, LLC, CLR Or kl ~ Defendants. CURR DEFENDANTS’ MOTION TO BIFURCATE TRIAL Defendants South Washington Street, LLC and 849 South Washington Street, LLC (collectively, the “Landlord”) move pursuant to Mass. R. Civ. P. 42 to bifurcate the trial into liability (i.e. resolving the rights under Lease) and damages phases. INTRODUCTION This is an action asserted by the former tenant, H1 Lincoln, Inc. d/b/a Majestic Honda (“Tenant”), against the Landlord, for breach of a lease (the “Lease”) of property located at 849 and 865 South Washington Street, North Attleboro, Massachusetts (the “Property”). Specifically, the Landlord exercised its right to withhold consent to the Tenant’s proposed construction plan, the Lease was terminated (by its terms) and the Tenant then filed this action claiming that the Landlord’s withholding of consent was “commercially” unreasonable and seeking to invalidate the termination. Based upon this alleged conduct, the Tenant has asserted claims for breach of contract, breach of the covenant of good faith and fair dealing, declaratory judgment and AD violation of Chapter 93A and seeks monetary relief and specific performance in the form of an order requiring the Landlord to “rescind the termination of the Lease,” “approve the Plaintiff's improvement plans,” and “honor and comply with the Lease forthwith.”! By this Motion, the Landlord seeks to bifurcate the trial for several reasons. First, resolving the rights under Lease before damages, will potentially eliminate any evidence on damages because the jury determines that the Landlord’s conduct was reasonable (and, thus, there was no breach) or because the Court grants the specific performance requested by the Tenant. Second, the damages evidence involves at least two expert witness (and several lay witnesses) who will provide complex, time-consuming and speculative testimony on “future” damages. This testimony is not required to determine the rights under the Lease and may be moot upon the Court’s grant of an order of specific performance. Third, the elimination of damages testimony and evidence will simplify the trial for the jury. The only issue for the jury to resolve will be the reasonableness of the Landlord’s withholding of consent. BACKGROUND Alfredo Dos Anjos (Anjos”), the founder, owner and operator of the Pride Auto Group, owns the Property through two limited liability companies. The Property was a former car dealership operated by Anjos and consisted of two contiguous parcels of land located on Route 1 in North Attleboro, Massachusetts.” 1 Specific performance is an equitable remedy which compels the performance of a contract in the precise terms agreed upon. Black’s Law Dictionary, 10 ed (2014). Here by requesting as its remedy an order compelling the Landlord to comply with the terms of the Lease, the Tenant has requested specific performance. 2 James Balise and others testified that the Property is located on what is commonly known as the “auto mile” and a prime location for a dealership. 2 James Balise (“Balise”), is the president of Balise Motor Sales Company which owns and operates twenty-two auto dealerships including Majestic Honda, a recently purchased dealership in West Warwick, Rhode Island. Recognizing the limitations of the existing location of the Majestic dealership, on or about August 22, 2016, Balise (with the assistance of Joshua Teverow > a lawyer who represented both Balise and Anjos) and the Landlord negotiated a lease which was signed on or about October 28, 2016 (the “Lease”). The Lease included a provision that required the Landlord’s permission for any proposed new construction or demolition of existing buildings at the Property. Specifically, Section 2(a) of the Lease provides that: If Tenant determines that either or both of the Existing Buildings will need to be demolished in connection with Tenant’s planned use of the Property or that any new buildings need to be constructed (“New Buildings”) Tenant shall give Landlord written notice of such determination within the Feasibility Period (“Demolition/New Buildings Notice”)... Demolition/New Buildings Notice shall include preliminary site plans and elevations for Tenant’s proposed development of the Property, which shall be in reasonable detail... Within fifteen (15) days after Landlord’s receipt of the Demolition/New Building Notice Landlord shall have the right to terminate this Lease by written notice to Tenant if Landlord reasonably withholds consent to such new construction in which event this Lease shall terminate as of the date of the Landlord’s written notice and the parts shall have no further obligation to one another except those obligations that expressly survive termination hereunder xO OK Notwithstanding the foregoing, Landlord acknowledges that Tenant’s present intention it to demolish the 865 Building and the 849 Building and replace with a prototypical Honda dealership facility. Tenant shall submit to Landlord during the Feasibility Period a prototypical elevation showing the materials and general architectural appearance of the Honda dealership facility and reasonably detailed plans for Tenant’s proposed improvements for review and approval of Landlord which such approval shall not be unreasonably withheld. . After the Lease was signed, Balise completed his preliminary diligence and on or about July 25, 2017, issued a notice of his intent to demolish buildings, and construct a “new larger building over the site.” With the notice, Balise included a site plan and elevation (the “Site Plan”) for the Landlord’s review and approval. Unbeknownst to the Landlord, by deed dated July 30, 2017, Balise purchased a lot abutting the Property (the “Abutting Lot”) through a “straw” to conceal his identity. The Site Plan submitted by Balise merged the Property and the Abutting Lot, eliminated a curb cut and relied upon the total square footage for all three lots to comply with the zoning requirements. By letter dated August 9, 2017, the Landlord withheld consent for the “proposed new construction on the leased premises as set forth in the proposed elevation and site plan...and” terminated “said Lease.” The Landlord justified withholding consent based upon the Site Plan which: Depicts additional land not owned or controlled by the landlord that will likely be part of a special permit application of a planned business development with the Town of North Attleboro, Massachusetts. Should such special permit be granted based on the site plan presented at the conclusion of the Lease the Landlord may be left without one or more buildings that violate any special permit that may issue. In additional the Landlord is unwilling to place the parcels that comprise the leased premises in common ownership nor grant easements permitting the common use of any planned access drives and/or utility systems. On December 17, 2017, the Tenant filed this action, asserted claims for declaratory judgment, injunctive relief, breach of contract, breach of the covenant of good faith and fair dealing and violation of Chapter 93A and requested relief in the form of: an order requiring the Landlord to specifically perform its obligations under the Lease “approve Plaintiff's improvement plans as commercially reasonable” and “rescind the termination of the Lease;” and . payment of “monetary damages.” The Tenant has estimated the length of trial to be ten (10) days, identified eleven (11) witnesses including Todd Berko, an alleged valuation expert (one of seven so-called expert witnesses designated by the Tenant). The Tenant has represented the Berko is Expected to testify that as a result of the plaintiff not being able to proceed in addition to the funds expended to date, the plaintiff suffered significant future damage. The Landlord has identified Rick Parmelee as a rebuttal valuation expert. ARGUMENT BIFURCATION WILL EXPEDITE THE RESOLUTION OF THE CLAIMS. Bifurcation of the determination of rights under the Lease from damages will expeditiously and effectively resolve the claims without prejudice to any party. Mass. R. Civ. P. 42 authorizes a court in its discretion: in furtherance of convenience or to avoid prejudice,.or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim...or of any separate issue or any number of claims or issues. Mass. R. Civ. P. 42(d). By its terms, Rule 42 confers upon the Court discretion to “deal with the exigencies of litigation by separating parties, claims and issues in order “to secure the just speedy and inexpensive determination of every action.” Roddy & McNulty Insurance Agency, Inc. v. AA Proctor & Co., 16 Mass. App. Ct. 525, 529 (1983). Under Rule 42 the Court is permitted to consider the “convenience of adjudication, the avoidance of prejudice and the interest of expedition and economy as dictated by the characteristics and elements of proof of the claims themselves” to determine a request to bifurcate. Id. “Separation of the issues of liability and damages is an obvious use of Rule 42 since logically liability must be established before determining damages.” Kisteneffv. Tiemam, 514 F.2d 896, 897 (1st Cir. 1975). This is a recognition that complex damages testimony delays the trial, confuses the trier of fact and may impact and impair the jury’s objectivity on issues of liability. Soave v. Purity Supreme Inc., No CA 981173, 2000 WL 1273824, at *1 (Mass. Super. Ct. May 24, 2000) (bifurcating case recognizing that the “the damages aspect of this case is complicated and would require in any event a significant amount of trial time to present.”); Carlesis v. P&G Bowling Corp., No CA 9300210, 1995 WL 808928 at *2 (Mass Super. Ct. Jan. 10 1995) (bifurcating case based upon conservation of expenses and expediting the trial process); Industrias Metalicas Marva Inc. v. Lausell, 172 F.R.D. 1, 2 (D.P.R. 1997) (bifurcation favored where issues can be rendered moot “before vast resources are wasted litigating them’). Here, bifurcating the determination of rights under the Lease and money damages will potentially eliminate trial preparation costs, jury confusion and trial time related to the complex claim of future damages. See Novopharm Ltd v. Torpham, Inc., 180 FRD 308, 312 (E.D.N.C. 1998) (granting motion to bifurcate liability and damages at trial); Industrias Metalicas Marva Inc., 172 F.R.D. at 2 (granting motion to bifurcate into separate trials on liability and damages). Without the issue of damages, the first (and possibly only) phase of the trial will be limited to a determination by the jury of the reasonableness of the Landlord’s withholding of consent to construction.> See Worcester Tatnuck Square CVS, Inc., 33 Mass. App. Ct. 499, 503 (1992) (whether a landlord unreasonable withholds consent is an issue of fact). Neither testimony of expert witnesses nor evidence of any alleged damages are necessary for a jury to determine the 3 The Tenant has the burden of proof to establish that Landlord’s withholding of consent was unreasonable. Restatement Second of Property Landlord & Tenant, § 15.2 cmt g (the party seeking the consent proceeds at his risk if he goes through with the proposed transfer. The burden of proof will be on him to establish that the reason or reasons advanced are unreasonable.); see also Morgan Products Ltd v. Park Plaza of Oshkosh, Inc., 229 Wis. 2d 231, 238 (1999) (“Tenant bears the burden that the reasons advanced by the landlord are unreasonable.”). Landlord’s “reasonableness.” Restatement Second of Property, Landlord & Tenant §15.2 (“A reasons for refusing consent, in order for it to be reasonable must be objectively sensible and of some significance and not based on mere caprice or whim or personal prejudice.”). Rather, the jury would consider the Landlord’s testimony, including its justification for withholding consent to the construction, and test the Landlord’s withholding of consent against the “usual standards of reasonableness” (i.e., are these objectively reasonable reasons for withholding consent?).4 See Safeway Inc. v. CESC Plaza Ltd Partnership, 261 F.Supp.2d 439, 462 (E.D. Va. 2003) (recognizing that there is “no requirement that a party withholding consent to a proposed change perform an independent study of the effects of a proposed change”). Il. THE TENANT’S CLAIM FOR SPECIFIC PERFORMANCE MAY PRECLUDE THE NEED FOR INTRODUCTION OF MONETARY DAMAGES The Tenant’s request for specific performance (if granted) would render moot any monetary relief. Specific performance is not a claim but rather an equitable remedy compelling the performance of a contract. Black’s Law Dictionary, 10" ed (2014). An aggrieved party to a contract is not entitled to both monetary relief and specific performance. See KGM Custom Homes, Inc. v. Prosky, 468 Mass. 247 (2014) (“Ordinarily an aggrieved party to a contract is not entitled to both remedies). Instead, if a party is provided the benefit of its contract by compelling specific performance, any monetary damages are rendered moot. Id.° 4 The Tenant has identified three “expert” witnesses to testify upon the “reasonableness” of withholding consent, including the Tenant’s own principal, Balise. This testimony is cumulative (and, therefore, it is unlikely it will be admitted) and, even if it was not cumulative, it is pure opinion testimony on the issue to be determined by the jury and is, therefore, inadmissible. 5 Nor is there a right to a jury trial on the claim of specific performance. See St Fleur v. WPI Cable Systems/Mutron, 450 Mass. 345, 353 (2007); McInnes v. LPL Fiancial LLC, 466 Mass. 256 (2013); Commissioner of Banks v Harrigan, 291 Mass. 353, 355 (1935) (if the subject matter of the cause of action is equitable the defendant has no right to a trial by jury). Here, the Tenant’s request in the form of an order compelling the Landlord to perform certain obligations under the Lease would render moot any monetary damages. In particular, the Tenant has requested that the Court order the Landlord to: e “approve Plaintiff's improvement as commercially reasonable,” . “approve the Plaintiff's improvement plans;” . “rescind the termination of the Lease” and e “honor and comply with the Lease forthwith.” (Comp.,“[P]rayers for relief”). Til. INTRODUCTION OF DAMAGES MAY IMPACT THE JURY’S OBJECTIVITY The damages evidence may impact the jury’s determination of liability under the Lease and, therefore, the case should be bifurcated. Bifurcation is particularly appropriate where evidence relevant to one issue or party in a case poses a threat to the jury's objectivity with respect to other issues or parties. See, e.g., Ismail v. Cohen, 706 F. Supp. at 251 (prejudice may occur when evidence is admissible only on a certain issue and there is a danger that the evidence will “contaminate” the minds of jurors on issues with respect to which the evidence would be inadmissible and irrelevant); Helminski v. Ayerst Laboratories Division of American Home Products Corp., 766 F.2d 208, 212 (6th Cir.), cert. denied, 474 U.S. 981 (1985) (bifurcation of proceedings into separate trials is appropriate when evidence relevant to a specific issue could have a prejudicial impact upon the jury's determination of another aspect of the case); 9 Wright & Miller, Federal Practice and Procedure § 2388 (1995 ed.) (“If a single issue could be dispositive of the case or is likely to lead the parties to negotiate a settlement, and resolution of it might make it unnecessary to try the other issues in the litigation, separate trial of that issue may be desirable to save the time of the court and reduce the expenses of the parties“). Here, the evidence of damages (both alleged actual damages in the form of preliminary costs and other expenses to prepare the Site Plan and “future” damages) are wholly irrelevant to the jury’s determination of the reasonableness of the Landlord’s withholding of consent. But this evidence may confuse the jury and generate sympathy for the Tenant, which could influence the determination of liability. WHEREFORE, for the reasons set forth above, in the interest of judicial economy and efficiency, and for convenience, the Landlord requests this Court bifurcate the trial into liability and damages phases. SOUTH WASHINGTON STREET, LLC and 849 SOUTH WASHINGTON STREET, LLC By their attorneys: Tur nen) DAVID C. MANOOGIAN, Esquire Carriage Court 149 Pleasant Street Attleboro, MA 02703 Phone: (508)226-4000 BBO No. 318260 CERTIFICATE OF SERVICE E:mail: dmanoog]149@aol.com Thereby certify that a true Copy of the above document Was served upon the attorney of record for each other hw party by (hand) 3 We v RICHARD E. BRIANSKY, Esquire McCarter & English, LLP 265 Franklin Street Boston, MA 02110 Phone: (617)449-6568 BBO No. 632708 E-mail: rbriansky@mccarter.com