Preview
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
HAMPDEN, ss. SUPERIOR COURT
H1 LINCOLN, INC. D/B/A MAJESTIC
HONDA,
Plaintiff/Defendant-in-Counterclaim
vs. CIVIL ACTION NO. 17-899 Na 7
Supp LEI
SOUTH WASHINGTON STREET, LLC, MEBOnCOunry
AND Ley var
849 SOUTH WASHINGTON STREET, Aug ~
LLC, 5 2019
Defendants/Plaintiffs-in-
Counterclaim AR On
PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION IN LIMINE TO PREVENT DEFENDANTS FROM ASSERTING OR
ARGUING TERMINATION REASONS NOT INCLUDED IN THE TERMINATION
LETTER SENT ON AUGUST 9, 2017
INTRODUCTION
Now comes the Plaintiff/Defendant-in-Counterclaim, H1 Lincoln, Inc. d/b/a Majestic
Honda (hereinafter “Plaintiff”), in the above-entitled matter and hereby respectfully files this
Memorandum of Law in Support of its Motion in Limine to Prevent Defendants from Asserting
or Arguing Termination Reasons Not Included in the Termination Letter Sent On August 9, 2017
(“Motion”). The Plaintiff requests oral argument at the scheduled conference on August 23,
2018. The Parties have agreed to direct filing of motions in limine by August 13, 2018, and
oppositions filed with the court by August 21, 2018.
QUIN+
FACTS
1. The Plaintiff incorporates all facts as alleged in its Verified Complaint and
Demand for Jury Trial (“Comp!.”) with Exhibits.
2. On May 24, 2017, the Plaintiff submitted its site plan to the Defendants. See
Compl., Ex. C.
3. The Defendants refused to conduct a site walk with the Plaintiff, or provide any
feedback on the site plan other than agreeing to combine the Defendants’ two parcels as one for
the Plaintiff's proposed site plan. See Ex. B; see also Compl., Exs. D and F.
4, On July 25, 2017, the Plaintiff submitted its site plan to the Defendants a second
time and again initiated a site walk. See Compl., Ex. F.
5. On August 4, 2017, the Defendants sent the Plaintiff a proposed Lease
Amendment, which limited the Plaintiff to only use the Property as a Honda dealership and used
car facility, which the Plaintiff ultimately signed and submitted to the Defendants on August 9,
2017, See Compl., Exs. G and H.
6. On August 10, 2017, the Plaintiff received from the Defendants a letter purporting
to terminate the Lease (“Termination Letter”).! See Compl., Ex. I.
7. The Termination Letter’s second paragraph informs the Plaintiff of the
Defendants’ purported reasons for termination:
The proposed site plan depicts additional land not owned or controlled by the
Landlord that will likely be part of a special permit application for a planned
business development within the Town of North Attleborough, Massachusetts.
Should such a special permit be granted based on the site plan presented, at the
conclusion of the Lease, the Landlord may be left with one or more buildings that
violate any special permit that may issue. In addition, the Landlord is unwilling
to place the parcels that comprise the leased premises in common ownership nor
' The Termination Letter is mistakenly dated August 9, 2019. It was sent via overnight mail on August 9,
2017 and received by the Plaintiff on August 10, 2017.
2grant easements permitting the common use of any planned access drives and/or
utility systems.
See Compl., Ex. I.
8. The Plaintiff, through its engineer, Dr. Steve Cabral, was able to cure all of the
‘reasons provided in the Termination Letter, and so informed the Defendants including on
December 4, 2017. See Compl., Ex. J (Email from James E. Balise to Alfredo Dos Anjos curing
all three reasons contained in Termination Letter and enclosing email from Dr. Cabral verifying
the same).
9. The Defendants never responded to the Plaintiff's December 4, 2017 email.
10. The Defendants never provided any other termination reasons before litigation
commenced on or about December 27, 2017.
11. After the instant litigation commenced, the Defendants’ principal, Alfredo Dos
Anjos (“Mr. Dos Anjos”), testified in a deposition that he relied on his attorney’s advice in
terminating the lease and that he did so because he believed that going forward on the Lease
would result in a loss of value to his land. See Exhibit A (Excerpts from Mr. Dos Anjos’s
Deposition). ‘
12. For example, Mr. Dos Anjos testified as follows pertaining to his reasons for
termination:
That based on my interpretation of the lease, and according to the plans, it was a
violation of the lease and my property value is gonna go down. It wasn’t gonna
be the same. As a result, it was not in my best interest to move forward. I wanted
to take advantage of the 15-day period that I was entitled to.”
See Exhibit A (Dos Anjos Depo. Transcript, 106:3-10).
These plans do not match the — they don’t match the ... what we had in the lease.
And the value of my property was gonna not be the same. In addition, I was
gonna have two lots — one I had nothing to do with — commingled with my
property, without ever been notified.See Exhibit A (Dos Anjos Depo. Transcript, 107:11-16).
Well, the value of my property went down tremendously with [Plaintiff's] plan.
See Exhibit A (Dos Anjos Depo. Transcript, 150:15-17).
What I’m saying, my property, my property value is worth a lot less, is worth
much, much less today than — without, with all those together, and, and I believe —
I believe my attorneys had told me — [Mr. Briansky instructed the witness not to
divulge attorney-client communications] ...
See Exhibit A (Dos Anjos Depo. Transcript, 151:20 — 152:4).
The future value of the property is worth less. If I get the property back, for some
reason, like you suggested, Honda may go out of business five years from now. I
may get stuck with the property back. We don’t know what the future is gonna
bring. That property without the two curbs is worth much, much less because
now I cannot — I gotta rely on one, on one tenant versus two. The new tenant may
want more access. It’s a lot of things in there, to me, has value.
See Exhibit A (Dos Anjos Depo. Transcript, 153:11-22).
13. Inhis deposition, Mr. Dos Anjos also testified that he terminated the Lease based
other reasons that did not appear in the Termination Letter, such as the absence of curb cuts, and
the abutting property (“Cash Property”) purchased by the Plaintiff from the Cash family. See
Exhibit A (Dos Anjos Depo. Transcript, Pages 108 — 109).
14, During his deposition, Mr. Dos Anjos was asked about the August 9"
Termination Letter and the fact that it did not include the reasons he stated in his deposition. For
example:
Qa: There’s nothing in [the Termination Letter] that says anything about the value of
your property, correct?
A: I didn’t think I had to put everything in here.
See Exhibit A (Dos Anjos Depo. Transcript, 125:12-15).Q@ Okay did you have any information that if Mr. Balise [Plaintiff] applied [for a
special permit application for a planned business development] and if it was
granted, that it might affect the value of your property in the future?
A: I didn’t have any information.
See Exhibit A (Dos Anjos Depo. Transcript, 128:14-18).
15. | Mr. Dos Anjos was asked whether actual facts caused him to cancel the lease or
simply potential problems that might arise in the future, to which Mr. Dos Anjos invoked the
advice of counsel defense and the attorney client privilege. See Exhibit A (Dos Anjos Depo.
Transcript, Pages 128 — 130).
16. In emails produced pursuant to the Court’s order in response to Plaintiff's earlier
Motion to Compel, it has now been revealed that Mr. Dos Anjos expressed to his Attorney David
Manoogian another reason for termination. Mr. Dos Anjos was frustrated that the Plaintiff
intended to maintain two separate buildings on the Dos Anjos:property. See Exhibit B (Email
‘traffic between Mr. Dos Anjos and Attorney Manoogian). However, Mr. Manoogian did not see
this as a valid reason for terminating the Lease and drafted the Termination Letter along other
grounds consistent with the Lease language. See Exhibit B at 318.
17. It should be noted that after the Termination Letter was sent to the Plaintiff, the
Defendants attempted to obtain economic concessions from the Plaintiff in order to reinstate the
Lease, to include limiting the Plaintiff to sell Hondas only and giving the Defendants the Cash
Land (purchased for $800,000) for only $1.00. See Compl., Ex. K. However, these were never
stated reasons for termination —rather, they were described by Mr. Dos Anjos as post-
termination “fishing.” See Exhibit B (Dos Anjos Depo. Transcript, Page 148).LAW
When contract language is unambiguous, “it must be construed according to its plain
meaning.” Balles v. Babcock Power Inc., 476 Mass. 565, 571-72, 70 N.E.3d 905, 911-12 (2017)
(citing General Convention of the New Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449
Mass. 832, 835, 874 N.E.2d 1084 (2007)).
Lease terminations, such as the Defendants’ termination here, are not valid where the
landlord fails to advance “any legally cognizable reason to withhold their consent.” Chapman v.
Katz, 448 Mass. 519, 521, 862 N.E.2d 735, 738 (2007) (citing Worcester-Tatnuck Sq. CVS, Inc.
v. Kaplan, 33 Mass. App. Ct. 499, 503-504, 601 N.E.2d 485 (1992)).
Based on the analysis in Katz, the Supreme Judicial Court expects that trial courts will review the
communications between the parties in establishing the reasonableness of the withholding party
given the termination reasons provided. In Katz, the Supreme Judicial Court reviewed the
landlord’s termination reasons and the tenant’s actions and found that, “[i]n light of the [tenant’s]
agreement to address and satisfy each concern raised by the owners before litigation commenced,
the [landlord’s] failure to consent ... was unreasonable as a matter of law.” Jd., at 534.
ARGUMENT
The instant Lease is unambiguous. See Compl., Ex. A (Lease). By the Termination
Letter, the Defendants purported to terminate the Lease under § 2(a) of the Lease, which permits
the Landlord to withhold consent for demolition and new construction within fifteen days of
receipt of such plans as submitted by the Tenant. However, the Lease, { 2(a) also provides that:
Landlord acknowledges that Tenant’s present intention -is 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 the Tenant’sproposed improvements for the review and approval of the Landlord, which such
approval shall not be unreasonably withheld.
See Compl., Ex. A (Lease, § 2(a)) (emphasis added).
The Defendants’ Termination Letter cited three reasons for terminating the Lease, which
are restated above. See, Facts Section, {7 (citing the Termination Letter). The Plaintiff and the
Plaintiff's engineer requested site visits and walks, but the Defendants refused. The Plaintiff and
the Plaintiff's engineer rebutted and cured the reasons contained in the Termination Letter. See
Compl., Ex. J (Email from James E. Balise to Alfredo Dos Anjos curing all three reasons
contained in Termination Letter and enclosing email from Dr. Cabral verifying the same).
The Defendants never advanced additional reasons for the termination until after the
commencement of this matter. For example, in his deposition, Mr. Dos Anjos cited his belief
that his property would lose value. See Exhibit A. Also, the Defendants produced documents
that indicate that Mr. Dos Anjos was unhappy that the Plaintiff planned to operate out of two
buildings. See Exhibit A. Neither of these items appear in the Termination Letter. Setting aside
whether these would even qualify as “reasonable” grounds to withhold consent to the Plaintiffs
planned demolition, the Defendants should be estopped from advancing or arguing either as a
justification for termination because neither were included in the Termination Letter.
Katz provides the Supreme Judicial Court’s framework for a similar factual controversy
regarding the reasonableness of a landlord’s withholding of consent and subsequent lease
termination. Based on the Supreme Judicial Court’s careful analysis of the landlord’s stated
reasons in comparison with the tenant’s actions, the Defendants here must be estopped from
changing the justifications or reasons for terminating the Lease at trial. Instead, the Defendants
must be restricted to the reasons the Defendants stated in the Termination Letter.To allow the Defendants to introduce new reasons asserted outside of the 15-day window
allotted within the Lease, Paragraph 2(a), would be fundamentally unfair to the Plaintiff, who as
the record indicates, has attempted in good faith to address any potential objections to the site
plan via site walks and visits, and did in fact cure all three stated reasons in the Termination
Letter with a verification by the Plaintiffs engineer, Dr. Steve Cabral. See Compl., Ex. J. To
permit the Defendant to advance new termination reasons at trial would defy the 15-day limit of
the Lease and it would depart from the manner by which the Supreme Judicial Court decided a
similar fact pattern in Chapman y. Katz, 448 Mass. 519, 521, 862 N.E.2d 735, 738 (2007).
CONCLUSION
For the reasons stated herein, the Plaintiff requests that this Court prevent the Defendants
from asserting or arguing new reasons or justifications for the Lease termination outside of what
is contained in the Termination Letter.
THE PLAINTIFF,
H1 LINCOLN, INC.,
By Its Attorneys,
John J. Egan, BBO #151680 oh
Michael G. McDonough, BBO #682128 (
Egan, Flanagan and Cohen, P.C.
67 Market Street, P.O. Box 9035
Springfield, MA 01102-9035
(413) 737-0260; Fax (413) 737-0121
Email: jje@efclaw.com; mgm@efclaw.comCERTIFICATE OF SERVICE
I certify that a true copy of the above document was served upon the attorneys of record
for each other party by electronic mail and U.S. mail, postage prepaid, on August 9, 2018.
Ape @ nO VY Wr Oo
Michael G. McDonough ae oh 0
Preview
COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT HAMPDEN, ss. SUPERIOR COURT H1 LINCOLN, INC. D/B/A MAJESTIC HONDA, Plaintiff/Defendant-in-Counterclaim vs. CIVIL ACTION NO. 17-899 Na 7 Supp LEI SOUTH WASHINGTON STREET, LLC, MEBOnCOunry AND Ley var 849 SOUTH WASHINGTON STREET, Aug ~ LLC, 5 2019 Defendants/Plaintiffs-in- Counterclaim AR On PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION IN LIMINE TO PREVENT DEFENDANTS FROM ASSERTING OR ARGUING TERMINATION REASONS NOT INCLUDED IN THE TERMINATION LETTER SENT ON AUGUST 9, 2017 INTRODUCTION Now comes the Plaintiff/Defendant-in-Counterclaim, H1 Lincoln, Inc. d/b/a Majestic Honda (hereinafter “Plaintiff”), in the above-entitled matter and hereby respectfully files this Memorandum of Law in Support of its Motion in Limine to Prevent Defendants from Asserting or Arguing Termination Reasons Not Included in the Termination Letter Sent On August 9, 2017 (“Motion”). The Plaintiff requests oral argument at the scheduled conference on August 23, 2018. The Parties have agreed to direct filing of motions in limine by August 13, 2018, and oppositions filed with the court by August 21, 2018. QUIN+ FACTS 1. The Plaintiff incorporates all facts as alleged in its Verified Complaint and Demand for Jury Trial (“Comp!.”) with Exhibits. 2. On May 24, 2017, the Plaintiff submitted its site plan to the Defendants. See Compl., Ex. C. 3. The Defendants refused to conduct a site walk with the Plaintiff, or provide any feedback on the site plan other than agreeing to combine the Defendants’ two parcels as one for the Plaintiff's proposed site plan. See Ex. B; see also Compl., Exs. D and F. 4, On July 25, 2017, the Plaintiff submitted its site plan to the Defendants a second time and again initiated a site walk. See Compl., Ex. F. 5. On August 4, 2017, the Defendants sent the Plaintiff a proposed Lease Amendment, which limited the Plaintiff to only use the Property as a Honda dealership and used car facility, which the Plaintiff ultimately signed and submitted to the Defendants on August 9, 2017, See Compl., Exs. G and H. 6. On August 10, 2017, the Plaintiff received from the Defendants a letter purporting to terminate the Lease (“Termination Letter”).! See Compl., Ex. I. 7. The Termination Letter’s second paragraph informs the Plaintiff of the Defendants’ purported reasons for termination: The proposed site plan depicts additional land not owned or controlled by the Landlord that will likely be part of a special permit application for a planned business development within the Town of North Attleborough, Massachusetts. Should such a special permit be granted based on the site plan presented, at the conclusion of the Lease, the Landlord may be left with one or more buildings that violate any special permit that may issue. In addition, the Landlord is unwilling to place the parcels that comprise the leased premises in common ownership nor ' The Termination Letter is mistakenly dated August 9, 2019. It was sent via overnight mail on August 9, 2017 and received by the Plaintiff on August 10, 2017. 2grant easements permitting the common use of any planned access drives and/or utility systems. See Compl., Ex. I. 8. The Plaintiff, through its engineer, Dr. Steve Cabral, was able to cure all of the ‘reasons provided in the Termination Letter, and so informed the Defendants including on December 4, 2017. See Compl., Ex. J (Email from James E. Balise to Alfredo Dos Anjos curing all three reasons contained in Termination Letter and enclosing email from Dr. Cabral verifying the same). 9. The Defendants never responded to the Plaintiff's December 4, 2017 email. 10. The Defendants never provided any other termination reasons before litigation commenced on or about December 27, 2017. 11. After the instant litigation commenced, the Defendants’ principal, Alfredo Dos Anjos (“Mr. Dos Anjos”), testified in a deposition that he relied on his attorney’s advice in terminating the lease and that he did so because he believed that going forward on the Lease would result in a loss of value to his land. See Exhibit A (Excerpts from Mr. Dos Anjos’s Deposition). ‘ 12. For example, Mr. Dos Anjos testified as follows pertaining to his reasons for termination: That based on my interpretation of the lease, and according to the plans, it was a violation of the lease and my property value is gonna go down. It wasn’t gonna be the same. As a result, it was not in my best interest to move forward. I wanted to take advantage of the 15-day period that I was entitled to.” See Exhibit A (Dos Anjos Depo. Transcript, 106:3-10). These plans do not match the — they don’t match the ... what we had in the lease. And the value of my property was gonna not be the same. In addition, I was gonna have two lots — one I had nothing to do with — commingled with my property, without ever been notified.See Exhibit A (Dos Anjos Depo. Transcript, 107:11-16). Well, the value of my property went down tremendously with [Plaintiff's] plan. See Exhibit A (Dos Anjos Depo. Transcript, 150:15-17). What I’m saying, my property, my property value is worth a lot less, is worth much, much less today than — without, with all those together, and, and I believe — I believe my attorneys had told me — [Mr. Briansky instructed the witness not to divulge attorney-client communications] ... See Exhibit A (Dos Anjos Depo. Transcript, 151:20 — 152:4). The future value of the property is worth less. If I get the property back, for some reason, like you suggested, Honda may go out of business five years from now. I may get stuck with the property back. We don’t know what the future is gonna bring. That property without the two curbs is worth much, much less because now I cannot — I gotta rely on one, on one tenant versus two. The new tenant may want more access. It’s a lot of things in there, to me, has value. See Exhibit A (Dos Anjos Depo. Transcript, 153:11-22). 13. Inhis deposition, Mr. Dos Anjos also testified that he terminated the Lease based other reasons that did not appear in the Termination Letter, such as the absence of curb cuts, and the abutting property (“Cash Property”) purchased by the Plaintiff from the Cash family. See Exhibit A (Dos Anjos Depo. Transcript, Pages 108 — 109). 14, During his deposition, Mr. Dos Anjos was asked about the August 9" Termination Letter and the fact that it did not include the reasons he stated in his deposition. For example: Qa: There’s nothing in [the Termination Letter] that says anything about the value of your property, correct? A: I didn’t think I had to put everything in here. See Exhibit A (Dos Anjos Depo. Transcript, 125:12-15).Q@ Okay did you have any information that if Mr. Balise [Plaintiff] applied [for a special permit application for a planned business development] and if it was granted, that it might affect the value of your property in the future? A: I didn’t have any information. See Exhibit A (Dos Anjos Depo. Transcript, 128:14-18). 15. | Mr. Dos Anjos was asked whether actual facts caused him to cancel the lease or simply potential problems that might arise in the future, to which Mr. Dos Anjos invoked the advice of counsel defense and the attorney client privilege. See Exhibit A (Dos Anjos Depo. Transcript, Pages 128 — 130). 16. In emails produced pursuant to the Court’s order in response to Plaintiff's earlier Motion to Compel, it has now been revealed that Mr. Dos Anjos expressed to his Attorney David Manoogian another reason for termination. Mr. Dos Anjos was frustrated that the Plaintiff intended to maintain two separate buildings on the Dos Anjos:property. See Exhibit B (Email ‘traffic between Mr. Dos Anjos and Attorney Manoogian). However, Mr. Manoogian did not see this as a valid reason for terminating the Lease and drafted the Termination Letter along other grounds consistent with the Lease language. See Exhibit B at 318. 17. It should be noted that after the Termination Letter was sent to the Plaintiff, the Defendants attempted to obtain economic concessions from the Plaintiff in order to reinstate the Lease, to include limiting the Plaintiff to sell Hondas only and giving the Defendants the Cash Land (purchased for $800,000) for only $1.00. See Compl., Ex. K. However, these were never stated reasons for termination —rather, they were described by Mr. Dos Anjos as post- termination “fishing.” See Exhibit B (Dos Anjos Depo. Transcript, Page 148).LAW When contract language is unambiguous, “it must be construed according to its plain meaning.” Balles v. Babcock Power Inc., 476 Mass. 565, 571-72, 70 N.E.3d 905, 911-12 (2017) (citing General Convention of the New Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449 Mass. 832, 835, 874 N.E.2d 1084 (2007)). Lease terminations, such as the Defendants’ termination here, are not valid where the landlord fails to advance “any legally cognizable reason to withhold their consent.” Chapman v. Katz, 448 Mass. 519, 521, 862 N.E.2d 735, 738 (2007) (citing Worcester-Tatnuck Sq. CVS, Inc. v. Kaplan, 33 Mass. App. Ct. 499, 503-504, 601 N.E.2d 485 (1992)). Based on the analysis in Katz, the Supreme Judicial Court expects that trial courts will review the communications between the parties in establishing the reasonableness of the withholding party given the termination reasons provided. In Katz, the Supreme Judicial Court reviewed the landlord’s termination reasons and the tenant’s actions and found that, “[i]n light of the [tenant’s] agreement to address and satisfy each concern raised by the owners before litigation commenced, the [landlord’s] failure to consent ... was unreasonable as a matter of law.” Jd., at 534. ARGUMENT The instant Lease is unambiguous. See Compl., Ex. A (Lease). By the Termination Letter, the Defendants purported to terminate the Lease under § 2(a) of the Lease, which permits the Landlord to withhold consent for demolition and new construction within fifteen days of receipt of such plans as submitted by the Tenant. However, the Lease, { 2(a) also provides that: Landlord acknowledges that Tenant’s present intention -is 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 the Tenant’sproposed improvements for the review and approval of the Landlord, which such approval shall not be unreasonably withheld. See Compl., Ex. A (Lease, § 2(a)) (emphasis added). The Defendants’ Termination Letter cited three reasons for terminating the Lease, which are restated above. See, Facts Section, {7 (citing the Termination Letter). The Plaintiff and the Plaintiff's engineer requested site visits and walks, but the Defendants refused. The Plaintiff and the Plaintiff's engineer rebutted and cured the reasons contained in the Termination Letter. See Compl., Ex. J (Email from James E. Balise to Alfredo Dos Anjos curing all three reasons contained in Termination Letter and enclosing email from Dr. Cabral verifying the same). The Defendants never advanced additional reasons for the termination until after the commencement of this matter. For example, in his deposition, Mr. Dos Anjos cited his belief that his property would lose value. See Exhibit A. Also, the Defendants produced documents that indicate that Mr. Dos Anjos was unhappy that the Plaintiff planned to operate out of two buildings. See Exhibit A. Neither of these items appear in the Termination Letter. Setting aside whether these would even qualify as “reasonable” grounds to withhold consent to the Plaintiffs planned demolition, the Defendants should be estopped from advancing or arguing either as a justification for termination because neither were included in the Termination Letter. Katz provides the Supreme Judicial Court’s framework for a similar factual controversy regarding the reasonableness of a landlord’s withholding of consent and subsequent lease termination. Based on the Supreme Judicial Court’s careful analysis of the landlord’s stated reasons in comparison with the tenant’s actions, the Defendants here must be estopped from changing the justifications or reasons for terminating the Lease at trial. Instead, the Defendants must be restricted to the reasons the Defendants stated in the Termination Letter.To allow the Defendants to introduce new reasons asserted outside of the 15-day window allotted within the Lease, Paragraph 2(a), would be fundamentally unfair to the Plaintiff, who as the record indicates, has attempted in good faith to address any potential objections to the site plan via site walks and visits, and did in fact cure all three stated reasons in the Termination Letter with a verification by the Plaintiffs engineer, Dr. Steve Cabral. See Compl., Ex. J. To permit the Defendant to advance new termination reasons at trial would defy the 15-day limit of the Lease and it would depart from the manner by which the Supreme Judicial Court decided a similar fact pattern in Chapman y. Katz, 448 Mass. 519, 521, 862 N.E.2d 735, 738 (2007). CONCLUSION For the reasons stated herein, the Plaintiff requests that this Court prevent the Defendants from asserting or arguing new reasons or justifications for the Lease termination outside of what is contained in the Termination Letter. THE PLAINTIFF, H1 LINCOLN, INC., By Its Attorneys, John J. Egan, BBO #151680 oh Michael G. McDonough, BBO #682128 ( Egan, Flanagan and Cohen, P.C. 67 Market Street, P.O. Box 9035 Springfield, MA 01102-9035 (413) 737-0260; Fax (413) 737-0121 Email: jje@efclaw.com; mgm@efclaw.comCERTIFICATE OF SERVICE I certify that a true copy of the above document was served upon the attorneys of record for each other party by electronic mail and U.S. mail, postage prepaid, on August 9, 2018. Ape @ nO VY Wr Oo Michael G. McDonough ae oh 0