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Pierce & Mandell Lawyers and Staff Run “Lawyers Have Heart 5K” in Support of the American Heart Association

Wednesday, May 23, 2018

Pierce & Mandell Lawyers and Staff Run “Lawyers Have Heart 5K” in Support of the American Heart Association

Pierce & Mandell, P.C., Boston, MA

Lena Finnerty Wins Summary Judgment on Negligence Case

Monday, May 21, 2018

Lena Finnerty, Pierce & Mandell, P.C., Boston, MAPierce & Mandell attorney Lena Finnerty recently won summary judgment for the firm’s architect client in a case involving a slip and fall at a local federal government facility.

The firm represented an international architectural firm in a case involving a federal government employee who fell in the indoor “winter garden” of her employer’s large facility. Plaintiff alleged that she fell on pea stones that had migrated from the garden area onto the walking paths. The allegation against the firm’s client was that it was negligent in designing the winter garden by including pea stones as a feature.

The basis for the summary judgment motion was that plaintiff did not offer an expert witness to testify that designing the winter garden using pea stones violated the standard of care.

Founding partner Bob Pierce was lead counsel on the case for the architect, but Lena Finnerty wrote and argued the summary judgment motion. “I am so proud of Lena having developed this basis for a summary judgment motion and winning this dismissal for the client. This was tremendous work by Lena on behalf of the client and Pierce & Mandell.”

Pierce & Mandell is well known for defending every type of product liability, personal injury and construction defect case.

Bill Mandell was Quoted in the May 2018 ED Legal Letter Article

Monday, May 21, 2018

Pierce & William MandellBill Mandell was quoted in the May 2018 ED Legal Letter article on case law expanding ED’s legal exposure if discharged psychiatric patient commits violence.

A Cautionary Tale for Municipal Officials: The SJC clarifies the Open Meeting Law’s “deliberation exemption”

Thursday, May 17, 2018

Pierce and Mandell, P.C.By: Michael C. Fee

      The Massachusetts Supreme Judicial Court’s recent ruling in Boelter v. Board of Selectmen of Wayland (SJC-12353, April 5, 2018) interprets and clarifies, for the first time, the meaning of the term “deliberation,” which was added to the Open Meeting Law in July 2010. The Open Meeting Law requires that, with the exception of executive sessions, “all meetings of a public body shall be open to the public.” General Laws c. 30A, § 20 (a). The statute defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction,” subject to certain limited exclusions. G.L. c. 30A, § 18.

      A “deliberation,” is “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.” The Open Meeting Law provides, however, that the term “deliberation” does not encompass the “distribution of a meeting agenda, scheduling information or distribution of other . . . reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” Id.

      While the importance of the Open Meeting Law cannot be understated, it is clear that the parameters it places on public officials are myriad and sometimes not entirely intuitive. Prior to the Legislature’s amendment of the statute in 2010, the Open Meeting Law defined “deliberation” as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.” See G.L. c. 39, § 23A, as appearing in St. 1975, c. 303, § 3. The 2010 amendment broadened the law’s definition of “deliberation,” and affirmed that a “deliberation” could encompass “any medium,” not just verbal communication. At the same time, however, the Legislature made clear that public bodies could distribute materials internally in advance of public meetings without running afoul of the statute’s proscription on “deliberation.”

      In Boelter, the chair of the Wayland Select Board had circulated to all members, in advance of a public meeting where the town administrator’s evaluation was to take place, the members’ individual written evaluations of the town administrator’s performance, as well as a composite evaluation. At the meeting, the Board reviewed, discussed and approved the composite evaluation, and the meeting minutes memorialized that the Board “praised [the town administrator] for his availability and responsiveness to the public, his work ethic, his relationship with town staff, and his accessibility to board and committee members.” Both the composite and individual evaluations were only released to the public following the open meeting.

      The process followed by the Board was subsequently challenged, and plaintiffs argued that the public should have total access to the decision-making process whenever a town official is evaluated. See, e.g., School Comm. Of Wayland, 455 Mass. at 570 (“It is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached”). Upon review, the Boelter Court acknowledged that the exemption allowing distribution of some materials was likely in response to the practical realities of governmental service, and that by permitting officials to review certain administrative materials and reports in advance, the Legislature sought to enable the more efficient administration of public meetings. It also noted, however, that the overarching purpose of the Open Meeting Law is to ensure transparency in governmental decision-making, and the Legislature specifically outlawed the expression of opinions by board members in any documents circulated to a quorum prior to an open meeting. See Revere v. Massachusetts Gaming Comm’n, 476 Mass. 591, 610 (2017) (“the new version of the Open Meeting Law does not alter our belief that ‘[i]t is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached’” [citation omitted]).

      In parsing the Wayland Select Board’s actions, the Court took particular note that the materials privately distributed to the members contained “appraisals” of the Town manager’s performance. Although there was no conversation, there was nonetheless an exchange of “thoughts, impressions and conclusions” that was inconsistent with the Open Meeting Law’s requirement that all deliberations take place in public. The Court concluded that the effect of the circulation of the evaluations was that all five board members were aware of the opinions of the other four members in advance of the meeting. As a result, the circulation constituted a deliberation, or a meeting, to which the public did not have access.

      Noting that the Open Meeting Law was intended to ensure that the public is able to see for themselves how public decisions are made, See Revere, 476 Mass. at 610, the Court found that distribution of the individual and composite opinions to a quorum, prior to the meeting, violated the statute’s purpose. See G.L. c. 30A, § 18. Compare School Comm. Of Wayland, 455 Mass. at 570 (“Open meetings provide an opportunity for each member of the governmental body to debate the issues and disclose their personal viewpoints before the governmental body reaches its decision on a matter of public policy” (emphasis supplied); McCrea v. Flaherty, 71 Mass. App. Ct. 637, 641 (2008) (Open Meeting Law “provides for public access to the decision-making process when it is in a formative stage, several steps removed from the eventual result”).

      The ruling in Boelter is both an affirmation of the Open Meeting Law’s overarching goal, transparency in governmental decision-making, and a challenge to public officials striving for administrative efficiency. The decision makes clear to municipal officials that there are now only two types of materials which may be safely distributed to a quorum outside of a public meeting: first, purely procedural or administrative materials (such as agendas), and second, reports or documents to be discussed at a later meeting, so long as such materials do not express the opinion of a board member. Careful municipal officials should consider adopting a general practice of not communicating by email at all except for distributing meeting agendas, scheduling meetings and distributing documents created by non-members to be discussed at meetings, all of which are ministerial tasks specifically sanctioned under the Open Meeting Law.

      Pierce & Mandell partner Michael C. Fee practices in the firm’s real estate and litigation departments. He is a former Town Moderator, Planning Board and Water District Chairman in Sudbury, and a current member of the Truro Open Space Committee. He frequently advises individuals and municipalities regarding public official liability under 42 U.S.C. § 1983, the Open Meeting Law, and matters involving public records, zoning, permitting, and land use.

Guidance to Massachusetts Health Care Providers Regarding the Release of Protected Health Information

Friday, May 04, 2018

By Curt Dooling, Matt Lauring and Bill Mandell

Hospitals and health care facilities, medical and other group practices, and individual clinicians regularly receive requests for patient records and information. It is often confusing for providers to determine when and under what circumstances they are permitted to disclose such records. Discovering parties can use the legal process to compel a response but cannot necessarily override applicable state privacy, confidentiality and privilege laws, as well as privacy rights under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), with a subpoena alone. HIPAA establishes minimum standards for the protection of protected health information (“PHI”) that do not preempt more protective state privacy laws and privileges. The following provides a brief overview on the differences between a court order, a subpoena, and an authorization for Massachusetts providers.

Subpoenas

Mass. R. Civ. P. 45 allows parties in civil lawsuits to subpoena records from non-parties. These subpoenas are often called keeper of records, or KOR, subpoenas. They are also sometimes referred to as a subpoena duces tecum.

Parties receiving a subpoena must respond to the subpoena within a certain referenced time frame. However, as a general rule, medical records should not be automatically produced in response to a subpoena, without first confirming if there is sufficient authority to release the PHI under both Massachusetts law and HIPAA. Such authority could be (i) under statutory authority on the subpoena alone if certain conditions are met, or (ii) with an executed HIPAA compliant patient authorization, or (ii) upon the issuance of a proper court order.

Subpoenas are not court orders. Subpoenas are issued by attorneys to obtain documents. Attorneys do not need a court’s permission to issue a subpoena. Medical providers can mistake subpoenas for court orders given that subpoenas are often served by a sheriff or constable, are notarized and look like an official court document. Thus, while a timely response must be sent back by the provider to the discovering party, that response may have to be in the form of an objection letter seeking the additional needed authority to disclose the PHI.

Massachusetts licensed hospitals and clinics (but not unlicensed practices) may produce medical records in response to a subpoena alone pursuant to G. L. c 111, § 70, but only if the patient is a named party in the case.

Similarly, under HIPAA’s privacy rule, 45 CFR 164.512(e)(1)(ii), a covered entity that is not a party to the litigation may disclose protected health information in response to a subpoena, discovery request, or other lawful process if the covered entity receives certain satisfactory assurances from the party seeking the information. Specifically, the covered entity must receive a written statement and accompanying documentation that the requesting party has made reasonable efforts either (1) to ensure that the individual who is the subject of the information has been given sufficient notice of the request, or (2) to secure a qualified protective order.

Thus, when viewing G. L. 111, § 70 in combination with 45 CFR 164.512(e)(1)(ii), a hospital or clinic may release confidential medical records in response to a subpoena alone if the patient is named in the caption and the provider receives assurance that the patient has been given notice that the records have been requested and has not objected. However, G. L. 111, § 70 only applies to hospitals or clinics licensed by the Massachusetts Department of Public Health. Therefore, medical practices and other groups may not release PHI in response to a subpoena without first securing a HIPAA compliant authorization from the patient, or a proper judicial order.

Additionally Protected Information

HIPAA provides a minimum level of protection for the disclosure and protection of an individual’s PHI. However, HIPAA expressly permits states to enact laws and regulations that provide more safeguards for the protection of patient information and records

Massachusetts has several statutes that provide additional protections for certain health information. For example:

  • General Laws c. 112, § 135B provides for the confidentiality of patient/social worker communications. Pursuant to G. L. c. 112, § 135B, social worker communications and records are privileged and may only be disclosed under certain circumstances.
  • General Laws c. 233, § 20B provides for the confidentiality of patient/psychotherapist communications. Pursuant to G. L. c. 233, § 20B, psychotherapist communications and records are privileged and may only be disclosed under certain circumstances.
  • General Laws c. 111, § 70F provides for the confidentiality of a patient’s HIV testing records. Pursuant to G. L. c. 111, § 70F, HIV testing records may only be disclosed with a patient’s express consent.
  • General Laws c. 233, § 20J provides for the confidentiality of sexual assault counselor communications. Pursuant to G. L. c. 233, § 20J, sexual assault counselor communications are privileged and may only be disclosed under certain circumstances.

These are only some examples of Massachusetts statutes that provide additional protection to certain medical records. There are other additionally protected categories of information under both federal and state law for substance treatment records, alcohol blood test results and minor records, to name others.

Authorizations

If a patient signs a HIPAA-compliant written authorization, a medical provider may release protected health information, as well as additionally protected areas that are explicitly referenced and designated by the patient for release. A HIPAA-compliant authorization form must include the following elements:

  • A description of the information to be disclosed;
  • The name of the individual or the name of the person authorized to make the requested disclosure;
  • The name or other identification of the recipient of the information;
  • A description of each purpose of the disclosure;
  • An expiration date or an expiration event that relates to the individual;
  • A signature of the individual or their personal representative (someone authorized to make health care decisions on behalf of the individual) and the date.

A disclosure for the release of additionally protected information should specifically state which additionally protected records are to be released.

Court Orders

A court order is a mandate issued by a court, a judge, magistrate or a clerk of the court requiring or forbidding someone to do something pursuant to the order. If privileged, additionally protected information is contained in the medical record, in lieu of an authorization, the court order is to be reviewed carefully and only that information which it orders produced is to be produced. It is not necessary to explain that other documents are not being produced in response to a court order if you are following the terms of the order. The judicial order must specify the type of record that is ordered to be released.

Medical providers should adopt health information policies and protocols to follow when a subpoena is served seeking production of a patient’s medical records. Navigating the requirements for the protection of PHI and the authorized release of PHI is difficult and complex. Pierce & Mandell’s health law attorneys have extensive experiencing advising medical providers on HIPAA compliance issues and medical record issues.

Complexities in the Division or Sale of Multiple Parcels in Partition Proceedings

Monday, April 30, 2018

Michael C. Fee, Pierce & Mandell, P.C., Boston, MABy: Michael C. Fee

Petitions to Partition, often brought in the Land or Probate Courts, allow the division of land owned by two or more individuals. The right to partition is absolute, and does not require the consent of other co-owners. For an excellent overview of general partition principles and practice, see Jeff Angley’s primer entitled "Partition of Land".

The process of partition becomes complex when the land to be divided consists of multiple parcels. While courts strive to balance the rights and equities of the parties in partition proceedings, Schore v. Johnson, Land Court Misc. Case No. 29096, July 14, 2008 (Piper, J.), quoting Gonzalez v. Pierce-Williams, 68 Mass. App. Ct. 785, 787 (2007), and Moat v. Ducharme, 28 Mass. App. Ct. 749, 751 (1990), in cases where multiple parcels are involved generally “division in kind” becomes the favored method of partition, i.e. awarding parcels of equal value to each party. However, a court may also order sale of all of the parcels and equitable division of the proceeds when it determines that the land cannot be divided “advantageously.” G.L. c. 241, § 31. Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333 (1992) and Buell v. Rubin, Land Court Misc. Case No. 310497, November 9, 2005 (Long, J.).

The General Rule

The proposition that the “primary” method of partition is by division derives principally from historical cases involving homogenous parcels where an equitable result could be derived from simple subdivision. For example, in Mello v. Mello, 322 Mass. 69 (1947), the SJC noted:

The primary method of partition is by division of the land itself by mete and bounds among the tenants in common. Until St. 1870, c. 257, and St. 1871, c. 111, § 1, later Pub. Sts. (1882) c. 178, § 65, a sale for the purpose of partition could not be ordered. Ramsey v. Humphrey, 162 Mass. 385, 386. Clough v. Cromwell, 250 Mass. 324, 330, 331. The existing statute intimates that sale may be ordered only of land "which cannot be divided advantageously." G. L. c. 241, § 31. See also § 6.

Similarly, in Buckley v. Lombard, Land Court Misc. Case No. 306156, November 30, 2007 (Scheier, J.), the Court recognized that “division in kind, or on the land, is the favored method of partition,” Id. at 7), but only after the court determines “by a preponderance of the whole evidence that the land cannot be advantageously divided before ordering a sale.” Id. at 7, citing Delta Materials Corp. at 338 (further citations omitted). In Buckley, the Court expressly recognized that G.L. c. 241, § 311 (the statutory provision authorizing sale) must be read in conjunction with G.L. c. 241, § 142, “which further instructs the Court to consider whether the land may be divided or set-off to one co-tenant without ‘great inconvenience’ to the co-owners.”

The Meaning of Statutory Terms “Inconvenience” and “Disadvantage”

What constitutes “inconvenience” or “disadvantage” has been addressed by several courts, with the inquiry focused squarely on conditions that create pecuniary inequities. For example, in Heald v. Kinnard, 180 Mass. 521, 523 (1902), the court struggled with the partition of a cranberry bog, which because of the particular way in which water flowed through the parcel, could not be divided such that each party would receive equal value. The Court observed:

In this case the advantageousness of the division was in part a question of market values, and from this point of view we are of opinion that the judge was warranted in considering the de facto condition of the premises.

Id. at 523. Although the Heald Court analyzed in depth the physical attributes of the land and the resulting options for division in kind, the key factor in determining “disadvantage” was whether division would result in a loss of value or money to a party:

The considerations which determine whether land can be divided advantageously no doubt have reference mainly to the physical conditions of the land to be divided, but the advantage or disadvantage generally must be pecuniary. Citing Vesper v. Farnsworth, 40 Wis. 357, 361, 362.

Similarly, in Clough v. Cromwell, 254 Mass. 132 (1925), a case involving parcels of land held by tenants in common on Martha’s Vineyard, the evidence established that the majority of value for the entire property was attributable to shooting privileges, and as a result the trial court found that the parties’ interests were best served by a sale of all of the land. The SJC affirmed, and relied on Heald for the proposition that the court had broad discretion to determine whether division would result in pecuniary disadvantage or monetary loss to any of the parties:

If a division by partition of the different parcels would cause great damage and loss to the owners, as the judge has found, we cannot say that he was not amply justified in ordering a sale of all of the lands, and a division of the proceeds in proper proportions.

Id. at 137.

Also instructive is the ruling Buckley v. Lombard, a Land Court case involving a partition petition for a small lot in Wellfleet, where the respondent urged division in kind to enable her to retain a right to access beach property. Citing Delta Materials Corp. and Clough v. Cromwell, Judge Scheier noted that G.L. c. 241, § 31 instructs the court to direct its inquiry “mainly to the physical conditions of the land to be divided, but the advantage or disadvantage must be pecuniary.” Id. at 9 citing Clough v. Cromwell at 332-33. The court next evaluated G.L. c. 241, § 31 in conjunction with § 14, which requires determination regarding whether division in kind could be accomplished without “great inconvenience,” and subsequently rejected the respondent’s “personal and subjective view of the value of locus” as “not the type of retained value that the partition statute contemplates.” Id.

As Buckley, Clough and Heald make clear, paramount in the Court’s analysis as to whether it can divide multiple parcels is the central determination of whether one party or another will suffer a loss of value or money as a result of a division. If such case, courts may conclude that the property cannot be “advantageously divided” and a sale of all parcels, and equitable distribution of the proceeds, is likely to follow.

The Concept of Owelty

Also critical are the provisions of G.L. c. 241, § 14 which provide that “[I]f all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or her consent, upon payment by him or them to any one or more of the others of such amounts of money as the Commissioners award to make the partition just and equal.” The statute envisions a partition resolution whereby willing owners agree to a division in kind that, although inconvenient, is acceptable. In cases where a division in kind will result in a loss of value because the parcels sold collectively are worth more than the sum of their parts, such “disadvantage” or “inconvenience” will often prohibit division unless the parties consent.

The concept of owelty in partition jurisprudence is ancient, and the principle that a party may not be forced to pay sums of money in order to establish equity in a partition proceeding has endured. In Hodges v. Pingree, 76 Mass. 14 (1857), the Supreme Judicial Court held that in partition, if the premises cannot be divided without damage to the owners, “the whole estate may be set off to any one of the parties who will accept it by paying such sums of money by way of owelty as may be awarded by the commissioners.” Id. at 15. Today, the concept of consent to owelty remains explicit in G.L. c. 241, § 14 and is often a critical component of any division of multiple, diverse parcels.

When multiple parcels are involved, partition proceedings can become complex, time consuming and costly. Experienced legal advice is essential to any party contemplating or involved in partition. Pierce & Mandell partner Michael C. Fee is a member of the firm’s real estate and litigation practice groups and represents clients in all forms of real estate litigation, including petitions to partition.

1G.L. c. 241, § 31 provides, in pertinent part, as follows:

In partition proceedings, the court may order the commissioners to sell and convey the whole or any part of the land which cannot be divided advantageously, upon such terms and conditions and with such securities for the proceeds of the sale as the court may order, and to distribute the proceeds so as to make the partition just and equal.

2G.L. c. 241, § 14 provides as follows:

If a part of the land cannot be divided without great inconvenience to the owners, or is of greater value than the share of any party, or if all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or their consent, upon payment by him or them to any one or more of the others of such amounts of money as the commissioners award to make the partition just and equal.

Bridgewell Names Sam Hoff to Board of Directors

Monday, April 09, 2018

Pierce & Mandell, P.C., Boston, MABridgewell, Inc., a Massachusetts non-profit organization that provides social and human services which empower individuals with disabilities and other life challenges to live safe, self-directed, and productive lives, has appointed Sam Hoff, an Associate at Pierce & Mandell, P.C. to its Board of Directors. At Bridgewell, Sam will serve on the Finance and Development & Marketing Committees.

Based in Peabody, Massachusetts, Bridgewell specifically serves over 6,000 individuals struggling with developmental and intellectual disabilities, autism, substance abuse disorders, and/or homelessness. Bridgewell assists these individuals by providing a continuum of care which includes day habilitation, counseling, clinical care, employment training, transitional homeless services, residential services, educational programs, and affordable housing. The organization recently celebrated its 60th anniversary at its annual Imagine the Possibilities Gala, which occurred at the Fairmount Copley Plaza on March 16.

Sam is an Associate in the Health Law and Non-Profit Organizations practices at Pierce & Mandell, P.C. He advises healthcare providers in a wide variety of transactional and regulatory matters including acquisitions, affiliations and joint ventures, Medicare and insurance reimbursement issues and appeals, and compliance with state and federal healthcare regulations, including HIPAA and anti-kickback laws. Prior to joining the firm, he served as a legal intern in the Massachusetts Attorney General’s Non-Profit Organizations/Public Charities Division. He also volunteered as the Event Committee Chairman for the Boston Mayflower Foundation, a Massachusetts non-profit organization which raised funds in support of disadvantaged Boston children.

With his appointment, which will last for a three-year term, Sam joins a Board of Directors which now consists of 12 members: Robin Sutherland, chair, HR consultant, Renovia, Inc.; Cathy Johnson, vice-chair, educator and Bridgewell family member; and several other members: Korey Hofmann, account representative, Primary Care Systems New England Division of the American Cancer Society; Rob Boudrow, principal, Strategy & Business Design Practice, PwC, LLC; Karl-Henry Francois, vice president of Corporate Banking, Citizens Bank; Angelika Fretzen, Ph.D., MBA, vice president and head of Development, Catabasis Pharmaceuticals, Inc.; Robert Hallett, retired Veterans Affairs executive; Gordon R. Massey, senior vice president, Salem Five; Jane Puffer, president, Dreamaker Consulting Group; Peter Sheckman, M.D., North Shore Physicians Group – Lynn; and Christopher Vaccaro, Esq., attorney at law, Dalton & Finegold, LLP.

U.S. Supreme Court Lets Stand Landmark Supreme Judicial Court Victory for Pierce & Mandell Lawyers

Tuesday, March 27, 2018

Pierce & Mandell, P.C., Boston, MABy Robert L. Kirby, Jr. and Thomas E. Kenney

The Supreme Court of the United States has denied the petition for certiorari filed by Oath Holdings, Inc., successor to Yahoo!, Inc. Oath Holdings had requested that the Supreme Court review the decision of the Massachusetts Supreme Judicial Court in Ajemian v. Yahoo!, Inc. In Ajemian, Pierce & Mandell lawyers Robert L. Kirby, Jr. and Thomas E. Kenney successfully argued, in a case of first impression, that the federal Stored Communications Act did not prohibit Yahoo! from disclosing the contents of a decedent’s email account to the personal representatives of his estate.

As a result of the Supreme Court’s denial of the petition for certiorari, the decision of the Supreme Judicial Court in favor of Pierce & Mandell’s clients stands, and the matter will be remanded to the Norfolk Probate and Family Court for disposition.

For further information on the Supreme Judicial Court’s decision in the Ajemian case, click here.

Commercial Lease Guarantee Survives Tenant Settlement

Friday, March 16, 2018

By: Michael C. Fee

The Appeals Court’s recent decision in Cedar-Fieldstone Marketplace, LP v. T.S. Fitness, Inc., 17-P-791, 2018 Mass. App. LEXIS 30, serves as a stark reminder to commercial tenants and their counsel of potential guarantor liabilities that live on even after settlement of an underlying lease debt.

The facts in Cedar-Fieldstone are familiar and common. The defendant tenant, a corporation, rented commercial property from the plaintiff landlord in New Bedford. The tenant’s president executed a detailed, three-page personal guaranty. The guaranty provided that the president’s liability was “co-extensive” with the tenant corporation, and was capped at a specific amount. The guaranty also recited:

[T]he liability of [guarantor] hereunder shall in no way be affected, modified or diminished by reason of . . . any consent, release [,] indulgence or other action, inaction or omission under or in respect of the [l]ease, or . . . any dealings or transactions or matter or thing occurring between [the l]andlord and [the t]enant.

Finally, the guaranty drew a bright line between the landlord’s relationship with the tenant and the tenant’s guarantor, noting that “[a]ll of [the l]andlord’s rights and remedies under the [l]ease and under this [g]uaranty, now or hereafter existing at law or in equity or by statute or otherwise, are intended to be distinct, separate and cumulative and no exercise or partial exercise of any such right or remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any of the others.”

When the tenant defaulted under the lease the landlord brought a summary process action to recover the premises and money damages. The summary process action was resolved by the parties entering into an agreement for judgment, which the tenant president/guarantor signed in his corporate capacity. Thereafter, the landlord brought a separate action against the president, in his capacity as guarantor, to recover amounts left unsatisfied by the tenant. A superior court judge granted summary judgment for the landlord. The guarantor appealed and the Appeals Court affirmed. On appeal, the guarantor argued that once the tenant no longer was liable under the lease, he automatically was relieved of his guaranty obligations as a matter of law. He based that contention on the “black letter legal principle that a guarantor’s obligations are coextensive with those of the principal obligor.” The Appeals Court was unpersuaded.

The Appeals Court first addressed cases standing for the broad principle that “the liability of the guarantor cannot exceed the liability of the debtor.” 275 Washington St. Corp. v. Hudson River Intl., LLC, 465 Mass. 16, 30 (2013). However, on these specific facts, the Appeals Court found that such proposition establishes only that “a guarantor’s own liability is bounded by the scope of the underlying liability that he has guaranteed,” or, stated another way, the guarantor’s liability under the guaranty could not exceed the tenant’s payment obligations that arose under the terms of the lease.

The Appeals Court then applied an entirely different lens to the question of whether a subsequently negotiated compromise of such underlying lease liability affected the president’s obligations as guarantor, and held:

We consider it self-evident that parties negotiating the terms of a guaranty would be free to agree that a subsequent release of a principal obligor’s underlying debt would result in a discharge of the guarantor’s own obligations. But we see nothing in the case law or elsewhere that requires such a term as a matter of law.” Put differently, we see no legal bar to a guarantor’s agreeing – as part of the negotiated terms of a guaranty – that his obligation to fund the underlying debt would survive a settlement of that debt between the principal obligor and the recipient of the guaranty. Rather, what the parties to a guaranty agree to in this regard is simply a matter of contractual intent. After all, “[a] guaranty is a contract ‘like all other contracts.’” Federal Financial Co. v. Savage, 431 Mass. 834, 817 (2000), quoting from Merchants Natl. Bank v. Stone, 296 Mass. 243, 250 (1936). Accordingly, “[t]he liability of a guarantor is to be ascertained by which the obligation is expressed, construed according to the usual rules of interpretation.” Agricultural Natl. Bank of Pittsfield v. Brennan, 295 Mass. 325, 327 (1936).

The ruling may come as a surprise to some, and offers a cautionary tale for tenants, guarantors, and those who draft and negotiate their documents. First, in many instances, the boiler plate terms of a personal guaranty are barely negotiated. Lawyers often assume that when a landlord requires a guaranty as a condition of entering into a lease there can be little discussion about terms. If the tenant defaults, the guarantor is liable. End of story. Careful attention should be paid, however, to the type of broad and all-encompassing guaranty language that the Appeals Court found so compelling in Cedar-Fieldstone. Guarantor’s counsel should at least attempt to carve out a limitation such that if an agreement of compromise is struck between landlord and tenant, the guarantor’s liability may be extinguished as well.

Second, provisions in an agreement for judgment in a summary process case, must, if possible, specifically address and include the guarantor. The Court in Cedar-Fieldstone remarked that the prefatory “Whereas” clauses contained language that could suggest the agreement for judgment was intended to resolve the entire dispute between the parties:

“WHEREAS, by this Agreement, the [landlord] and [the tenant] desire to settle the [District Court summary process action] and any and all of the disputes, if any, arising out of [that action];

“WHEREAS, by this Agreement, the [landlord] and [the tenant] also desire to settle any and all of the disputes, if any, arising out of the [l]ease, whether or not such disputes could have been raised by the [tenant] within this court proceeding;

“WHEREAS, the [landlord] and [the tenant] have agreed that it is in their mutual interest to resolve fully and finally all of the disputes which were, have been, or could have been raised in connection with the [summary process action] and/or [the l]ease, whether or not such disputes could have been raised by the [tenant] within this court proceeding.”

Ultimately, however, such general language was insufficient to overcome the clear, unambiguous, and all-encompassing provisions of the guaranty. Thus, both the trial court and Appeals Court correctly construed the agreement for judgment as a final resolution of disputes between the landlord and tenant, but not between the landlord and the guarantor.

Drafters and litigators beware: at least when a personal guaranty is involved, sometimes a final settlement agreement can be anything but the end of the story.

Michael Fee is a shareholder at Pierce and Mandell, P.C. and former chairman of both the Boston and Massachusetts Bar Association’s Real Estate Sections. The firm frequently represents both landlords and tenants in commercial and residential lease negotiations and litigation matters.

We Need Legal Reform to Protect our Children in School and all People Attending Public Gatherings

Monday, February 19, 2018
Pierce & William Mandell

In addition to establishing a sane level of controls and limits on semi-automatic weapons and ammunition under both federal and state law, and better security, all states must look closely at their laws to strike the right balance between patient privacy and the need to protect public safety. I am reposting a blog and article about this topic I wrote after past mass shooting and terrorism tragedies.

See: http://www.piercemandell.com/pierce-and-mandell-pc-blog/bill-mandell-revisits-the-need-for-clarity-under-massachusetts-law-for-permitted-health-provider-dis






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