FLIGHTLEVEL NORWOOD, LLC, & Others. v. BOSTON EXECUTIVE HELICOPTERS LLC, & Others (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1428

FLIGHTLEVEL NORWOOD, LLC, & others. 1

vs.

BOSTON EXECUTIVE HELICOPTERS LLC, & others 2 (and a companion
case 3).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

These consolidated cases involve sublessees of two

adjoining parcels of land known as Lots F and G at the Norwood

Memorial Airport. Plaintiff FlightLevel Norwood, LLC, is a

fixed-base operator (FBO) at the Norwood Memorial Airport. The

defendants also sought to attain FBO status, and wanted to use,

over the plaintiffs' objection, the taxiway running along their

1EAC Realty Trust II; and Peter Eichleay, trustee of EAC
Realty Trust II.

2 Christopher Donovan and Robert Silva.

3Boston Executive Helicopters LLC; MII Aviation Services
LLC; and HB Holdings Inc. vs. FlightLevel Norwood, LLC; EAC
Realty Trust II; and Peter Eichleay.
common border located on Lot G (F/G taxiway). 4 After numerous

incidents, the parties filed separate lawsuits that were

consolidated in the trial court.

Following a summary judgment decided largely in the

plaintiffs' favor, including the grant of declaratory and

injunctive relief, 5 the plaintiffs' three remaining claims were

tried to a jury. Answering special questions, the jury found

that Boston Executive Helicopters LLC and employees Christopher

Donovan and Robert Silva trespassed 6 on the plaintiffs' leasehold

and that all three were negligent. With respect to the G. L.

c. 93A, § 11 claim, the jury found that those three defendants

committed unfair acts or practices in the conduct of business

that caused a loss to FlightLevel, and further that the unfair

acts or practices of two of the three defendants, Boston

Executive Helicopters LLC and Donovan, were "willful and

knowing." The jury awarded FlightLevel single damages of

$13,757.11 for all claims. After further proceedings, the trial

4 For ease of reference, we shall refer hereinafter to the
plaintiffs in this decision, as the special questions did,
collectively as FlightLevel. Five parties positioned on the
other side have participated in this appeal. We shall refer to
them collectively as the defendants.

5 As herein relevant, the judge ordered and declared that
the defendants had no right under the use agreements to use the
F/G taxiway located on Lot G.

6 Silva was found liable for one instance of trespass while
Donovan and the company were found liable for two.

2
judge awarded to FlightLevel treble damages, attorney's fees,

and costs.

A consolidated judgment that incorporated the declaratory

judgment subsequently entered in favor of the plaintiffs. A

different judge denied the defendants' postjudgment motions. We

reverse so much of the consolidated judgment as holds the

defendants liable for violation of G. L. c. 93A. In all other

respects, the consolidated judgment is affirmed.

Background. Since 1967, Boston Metropolitan Airport, Inc.,

(BMA) has leased Lots F, G, and a portion of Lot H (prime lease)

at the Norwood Memorial Airport from the town of Norwood,

through the Norwood Airport Commission (NAC). Thereafter, the

leasehold interests in these lots passed to several different

entities through a number of subleases and legal agreements.

EAC Realty Trust II 7 is the current sublessee of Lot G, on which

it owns a hangar; EAC Realty Trust II currently subleases

helicopter and office space in the hanger to MII Aviation

Services LLC (Boston Executive Helicopters LLC's parent company)

and an affiliated company, HB Holdings Inc. Boston Executive

Helicopters LLC is the current sublessee of Lot F and also

maintains a hangar on its leasehold.

7 FlightLevel Norwood, LLC, owns one hundred percent of the
beneficial interest in EAC Realty Trust II, and Peter Eichleay
is the sole trustee of that trust.

3
The jury could have found the following facts. In July

2014, the defendants ripped up and repaved some of Lot G without

FlightLevel's consent and then refused to disclose the load-

bearing capacity of the new asphalt, causing FlightLevel to

avoid using that area for travel by heavy trucks. Additionally,

in the winter of 2015, the defendants plowed Lot G without

permission on several occasions, including one instance where an

enormous wall of snow was built, blocking FlightLevel's access

to its fuel farm. Soon thereafter, the defendants overturned

barriers filled with water and propylene glycol that FlightLevel

had placed on Lot G along the border with Lot F to protect its

property line. Finally, the defendants openly and regularly

filmed FlightLevel's employees.

Discussion. 1. Chapter 93A, § 11. The defendants argue

that the trial judge erred in denying their motion for judgment

notwithstanding the verdict (judgment n.o.v.) with respect to

FlightLevel's G. L. c. 93A, § 11 claim. We agree.

"The denial of a motion for judgment n.o.v. presents a

question of law reviewed under the same standard used by the

trial judge." Dakin v. OSI Restaurant Partners, LLC, 100 Mass.

App. Ct. 92, 95 (2021). "[W]hether conduct found to be unfair

or deceptive rises to the level of a chapter 93A violation is a

question of law" (quotation and citation omitted). H1 Lincoln,

Inc. v. South Washington St., LLC, 489 Mass. 1, 14 (2022).

4
General Laws c. 93A, § 2 (a), prohibits both "[u]nfair

methods of competition" and "unfair or deceptive acts or

practices" occurring "in the conduct of any trade or commerce." 8

General Laws c. 93A, § 11, "applies these prohibitions to

dealings between those 'engage[d] in trade or commerce.'" H1

Lincoln, Inc., 489 Mass. at 14. Although FlightLevel's amended

complaint asserted claims under both prongs of § 2 (a),

FlightLevel waived the unfair competition theory at trial,

presumably for strategic reasons. 9 Specifically, FlightLevel

proceeded on the theory that the defendants "engaged in unfair

acts to exercise dominion and control over FlightLevel's

leasehold for the purpose of advancing [the defendants']

commercial interests and deliberately interfering with the

8 The statute defines "trade" and "commerce" to include "the
advertising, the offering for sale, rent or lease, the sale,
rent, lease or distribution of any services and any property,
tangible or intangible, real, personal or mixed, any security
. . . and any contract of sale of a commodity for future
delivery, and any other article, commodity, or thing of value
wherever situate," and "any trade or commerce directly or
indirectly affecting the people of this commonwealth." G. L.
c. 93A, § 1 (b). No claim is made that any of these categories
of conduct is applicable here.

9 Had the plaintiffs pursued the unfair competition theory,
they would have risked opening the door to evidence the trial
judge had excluded, in limine, related to the defendants'
allegations that it was the plaintiffs who had engaged in
restraint of trade, monopolization, and unfair competition.

5
commercial operations of FlightLevel. 10 The defendants argue

that in order to state a claim under G. L. c. 93A, § 11, under

the theory of unfair deceptive acts and practices, a business

must show more than that it was the victim of unfair practices

by another business engaged in trade or commerce. Rather, the

aggrieved business must show that it engaged in a not

"insignificant" business transaction with the second business

and also that the unfair practices arose out of the business

transaction. Pointing to the plain language of G. L. c. 93A,

§§ 2 (a) and 11, which are silent on the issue, FlightLevel

argues that G. L. c. 93A liability could attach in the absence

of a particular business transaction or marketplace exchange

with the defendants. We agree with the defendants that when the

theory of c. 93A liability is unfair and deceptive acts and

practices, those acts must occur within the parties' business

relationship.

While the statutory language makes no express reference to

"transaction," the Supreme Judicial Court has construed the

elements of a business-to-business G. L. c. 93A, § 11, claim to

10FlightLevel's attorney described the defendants' "unfair
acts" as repeated bullying designed to try to take over
FlightLevel's Lot G lease through the physical acts of "tearing
up the pavement," plowing and creating a giant wall of snow, and
"tipping over the barriers" placed by FlightLevel on Lot G. The
evidence of the second two acts formed the basis of
FlightLevel's successful trespass and negligence claims.

6
require a showing not only that the offending "conduct

occur[red] in 'trade or commerce' but also that there be a

commercial transaction between the parties." Rafferty v. Merck

& Co., 479 Mass. 141, 162 n.7 (2018) (noting that G. L. c. 93A,

§ 11, business against other business claim requires commercial

transaction between parties). See Milliken & Co. v. Duro

Textiles, LLC, 451 Mass. 547, 563-565 (2008) ("applicability of

G. L. c. 93A, § 11, requires a dual inquiry whether there was a

commercial transaction between a person engaged in trade or

commerce and another person engaged in trade or commerce, such

that they were acting in a 'business context'"; concluding

plaintiff's discussions with successor corporations in effort to

secure repayment of trade debt did not satisfy criteria for

viable c. 93A claim); Linkage Corp. v. Trustees of Boston Univ.,

425 Mass. 1, 22-25, cert. denied, 522 U.S. 1015 (1997)

(interaction between parties involving contract was not an

intra-enterprise dispute but a commercial transaction for

purposes of c. 93A; noting "[t]rade" and "commerce" include "the

sale, rent, lease or distribution of any services and any

property" and reviewing transaction between parties); Szalla v.

Locke, 421 Mass. 448, 451-452 (1995) (finding no commercial

transaction as required by c. 93A where parties entered into

private arrangement to form business and never exchanged goods

or services with each other); Stop & Shop Supermkt. Co. v.

7
Loomer, 65 Mass. App. Ct. 169, 175-176 (2005) ("To be actionable

under G. L. c. 93A . . ., the conduct complained of must occur

in a context in which the parties to the transaction are persons

engaged in 'trade or commerce' with each other and therefore

'acting in a business context'"; supermarket employee and her

husband cashing checks for husband's business knowing funds were

insufficient is not qualifying business-to-business transaction

[citation omitted]).

In support of its argument that a particular commercial

transaction between the parties is not a requirement of a

c. 93A, § 11 claim, FlightLevel relies on 477 Harrison Ave., LLC

v. JACE Boston, LLC, 477 Mass. 162 (2017) (Harrison I), S.C.,

483 Mass. 514 (2019) (Harrison II). These cases are

distinguishable. To start, these were anti-SLAPP cases that

considered whether the parties were entitled to dismissal of the

respective claims and counterclaims asserted against them by

satisfying the requirements of the anti-SLAPP statute. See

G. L. c. 231, § 59H. All statements of the court in these

opinions about "colorable" and "not devoid of merit" G. L.

c. 93A claims must be understood in that context.

With specific regard to the plaintiff's c. 93A claim in

Harrison I, the Supreme Judicial Court examined all of the bases

underpinning the claim and concluded that where the claim rested

in part on a substantial nonpetitioning basis -- the defendants'

8
filing of false insurance claims -- the defendants could not

show that the plaintiff's claim was based solely on their

petitioning activity. Harrison I, 477 Mass. at 171.

Accordingly, the court concluded that the defendants could not

meet their threshold burden with respect to the c. 93A claim to

qualify for its dismissal under G. L. c. 231, § 59H. Harrison

I, supra at 172. The case said nothing about the "trade or

commerce" requirement or the applicability of c. 93A. 11 In fact,

the court made sure to explain that it was not deciding whether

the plaintiff had stated an adequate G. L. c. 93A claim for

relief. See Harrison I, supra at 171 n.11 ("A special motion to

dismiss under the anti-SLAPP statute, unlike a motion to dismiss

brought under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 [1974],

does not test the sufficiency of [a claim]"). In Harrison II,

the court similarly disavowed testing the legal adequacy of the

G. L. c. 93A claim. See Harrison II, 483 Mass. at 522 n.3.

Applying relevant precedent requiring proof of a commercial

transaction, and finding no support in Harrison I or Harrison II

for FlightLevel's position, we conclude that G. L. c. 93A is

inapplicable here. The defendants' improper behavior could not

11While the court did mention the trade or commerce
requirement in Harrison II, it did not reach the issue, and
instead "[a]ssum[ed], for purposes of discussion," that, as the
plaintiff alleged, the parties were engaged in trade or
commerce. Harrison II, 483 Mass. at 528.

9
support c. 93A, § 11, liability where there was no business

transaction between the parties. The judge thus erred by

denying the defendants' motion for judgment n.o.v. with regard

to that claim. 12

2. Summary judgment. "Summary judgment is appropriate

where there is no material issue of fact in dispute and the

moving party is entitled to judgment as a matter of law"

(citation omitted). Business Interiors Floor Covering Business

Trust v. Graycor Constr. Co., 494 Mass. 216, 220 (2024). The

respective parties' rights to use the F/G taxiway turn on the

interpretation of unambiguous contracts and leases, presenting

questions of law. See Lumber Mut. Ins. Co. v. Zoltek Corp., 419

Mass. 704, 707 (1995). Our review of the judge's legal

conclusions is de novo. See Business Interiors Floor Covering

Business Trust, supra.

On appeal, the defendants primarily focus on the two use

agreements as sources of their rights, arguing that the motion

judge erred by concluding that the agreements granted

nontransferable, "reciprocal licenses."

The first, undated use agreement was entered into by Stol

Aircraft Corporation (Stol), a sublessee of Lot F, and Hangar

12Having concluded that the defendants were entitled to
judgment n.o.v. with respect to the G. L. c. 93A judgment, we
need not address their other claims of error regarding it.

10
Nominee Trust (Hangar Trust), a sublessee of Lot G. At the

time, Hangar Trust intended to construct a hangar on Lot G and

to use the westerly portion of Lot G as a taxiway. Stol granted

Hangar Trust the right to pave and to use a fifteen foot strip

of land on Lot F as part of Hangar Trust's taxiway "for the

balance of the term of [Stol's] lease." In return, Hangar Trust

granted Stol the right, upon the F/G taxiway's completion, to

use it "as a taxiway[], in connection with [Stol's] own business

. . . for as long as [Hangar Trust] continue[d] to utilize the

westerly portion of Lot G for that purpose, or for the term of

[Stol's] lease, whichever [was longer]." BMA and NAC approved

the "arrangement outlined in the letter."

The second use agreement, dated January 30, 1996, was

entered into with BMA's consent by Swift Aviation, Inc. (Swift

Aviation), the successor to Stol's leasehold interest in Lot F,

and EAC Realty Trust II, which had acquired Hangar Trust's

leasehold interest in Lot G. Swift Aviation granted to EAC

Realty Trust II a nonexclusive right to use the fifteen foot

strip of land on Lot F for "use as a taxiway and for access to

and egress from Lot G . . . for so long as the [Stol-BMA]

sublease (or any extensions or subsequent agreements with

respect to the use of Lot F) remain[ed] in effect." In

exchange, EAC Realty Trust II granted to Swift Aviation the

right to use the portion of the F/G taxiway on Lot G, "as a

11
taxiway only in connection with [Swift Aviation's] own business

. . . for as long as EAC [Realty Trust II] continues to utilize

such portion of Lot G for that purpose, or for the term of the

Sublease, whichever is greater." In addition, EAC Realty Trust

II agreed not to assign its rights in the agreement without the

written consent of Swift Aviation. 13

In 2011 Swift Aviation sold its leasehold interest in Lot F

to Boston Executive Helicopters LLC. In October 2012 and March

2013, Swift Aviation assigned its rights under the Stol-BMA

sublease, which had been extended to May 31, 2029, to Boston

Executive Helicopters LLC. BMA agreed to amend the sublease to

Lot F to permit Boston Executive Helicopters LLC to "store, use

and sell" aviation fuel, conditioned on it obtaining all

necessary approvals.

The defendants' rights turn on the proper characterization

of the use agreements. If the use agreements granted property

rights, they ran with the land and were fully assignable,

whereas if they granted mere reciprocal licenses personal to the

parties, they were neither incorporated into the Lot F and G

subleases nor assignable. See Baseball Pub. Co. v. Bruton, 302

13Following FlightLevel Norwood, LLC's purchase of EAC
Realty Trust II's assets, Swift Aviation acknowledged and agreed
that the second use agreement "would continue in full force and
effect."

12
Mass. 54, 55 (1938) ("A lease of land conveys an interest in

land" whereas a license "merely excuses acts done by one on land

in possession of another that without the license would be

trespasses, conveys no interest in land, and may be contracted

for"). The defendants argue that the use agreements were

"easements or otherwise assignable." We conclude that the

nonexclusive, reciprocal rights granted to the individual

parties pursuant to the use agreements were licenses. See

Kaplan v. Boudreaux, 410 Mass. 435, 442-443 (1991), overruled on

other grounds by St. 1998, c. 242, § 5 (condominium bylaw that

granted certain exclusive rights to owners of one particular

condominium unit as opposed to personal rights transferred

interest in land); Chelsea Yacht Club v. Mystic River Bridge

Auth., 330 Mass. 566, 567-568 (1953) (license granted to

particular yacht club to construct club house on piles driven

into Mystic River upon Commonwealth land provided club with no

interest in land that could serve as authorization to sue for

subsequent damage to property); Scioscia v. Iovieno, 318 Mass.

601, 603 (1945) (permission granted to defendants by Marshall,

plaintiffs' predecessor in title, to extend clothes reels over

Marshall's and his wife's adjoining land "did not give the

defendants any easement or other interest in that land," but

rather constituted license that was terminated by subsequent

conveyance of adjoining land by Marshalls to plaintiffs); Rogel

13
v. Collinson, 54 Mass. App. Ct. 304, 313-315 (2002) (finding no

error in judge's determination that easement reserved by grantor

Nelson was easement in gross and personal to Nelson that could

not be assigned or transferred by Nelson -- as opposed to

easement appurtenant to stable or other lot).

Here, there is no language in the use agreements suggesting

the rights were intended to be appurtenant to the lots such that

the rights would pass to successor leaseholders. 14 To the

contrary, several aspects of the agreements demonstrate that the

agreements were intended to be licenses personal to the holders

of the leasehold interests. For example, the reciprocal rights

of use were granted not for the benefit of Lots F and G, but

rather to the individual holders of the subleases at the time

the use agreements were signed. The first use agreement

restricted Stol's right to use the portion of the F/G taxiway on

Lot G to uses "in connection with [Stol's] own business" and use

"as a taxiway." The second use agreement placed similar

restrictions on Swift Aviation's right to use the portion of the

F/G taxiway located on Lot G. 15 As the motion judge noted,

14Neither use agreement contained the words "appurtenant
to," "run with the land," or "easement," and neither was
recorded. By way of contrast, the Hangar Trust-BMA sublease
agreement contained nondiscrimination covenants that expressly
ran with the land.

15Stol's and Swift Aviation's businesses did not include
the storage or sale of aviation fuel, uses that were expressly

14
neither the prime lease between the town of Norwood and BMA nor

the Stol-BMA and Hangar Trust-BMA subleases conferred reciprocal

rights of use. Indeed, the F/G taxiway did not exist until

after the first use agreement was negotiated between Stol and

Hangar Trust. By attempting to negotiate a use agreement with

FlightLevel after purchasing the Lot F leasehold interest,

Boston Executive Helicopters LLC demonstrated that it, too,

regarded the rights as not being appurtenant to Lots F and G. 16

See Rogel, 54 Mass. App. Ct. at 313-314.

The language in the use agreements stating that the

agreements lasted for set durations and thus were not revocable

at will -- characteristics of an easement -- does not compel a

determination that the use rights were transferrable if the

subleases were assigned. Cf. Scioscia, 318 Mass. at 603. A

legal document granting use rights may "contain some

characteristics of an easement or a lease, which are interests

prohibited on Lot F by the Stol-BMA sublease and subsequent
indenture. As successor and assignee of Stol's leasehold
interest in Lot F, Swift Aviation was bound by these
restrictions, an obligation that passed to Boston Executive
Helicopters LLC upon its acquisition of Swift Aviation's assets.

16By entering into the second use agreement and the
"acknowledgement of [second use] agreement," the subsequent
holders of the leasehold interests in Lots F and G also
manifested the understanding that the reciprocal rights to use
the F/G taxiway were not part of their leasehold rights under
the subleases.

15
in land, and some characteristics of a license, which is not an

interest in land." Kaplan, 410 Mass. at 442. Language cannot

be read in isolation but must be considered in the context of

the entire agreement. See RCS Group, Inc. v. Lamonica Constr.

Co., 75 Mass. App. Ct. 613, 620 (2009). As the motion judge

noted, the second agreement limited Swift Aviation's right to

use the F/G taxiway on Lot G to its own business. Once Swift

Aviation ceased operations and stopped using the taxiway "in

connection with its own business" at the time it sold its assets

to Boston Executive Helicopters LLC, the use agreement

terminated. To the extent that the defendants point to the fact

that the second use agreement imposes no restrictions on Swift

Aviation's right to assign the agreement, the agreement granted

no such right to Swift Aviation either. Assignment rights were

a matter of contract negotiation, and while EAC Realty Trust II

was successful in acquiring express assignment rights, Swift was

not. The defendants' argument, moreover, is inconsistent with

the plain language of the second use agreement that restricted

the use of the F/G taxiway on the westerly portion of Lot G to

Swift's own business.

Where the right of use at issue here was created by the use

agreements, the general rule in commercial lease cases that

assignment is permitted absent a provision restricting it, see,

e.g., Valley Oil Co. v. Barberian, 344 Mass. 759 (1962), does

16
not apply here. Nor may the "Estoppel Certificate/Clarification

Agreement" dated January 24, 1996, between EAC Realty Trust II,

Hangar Trust, and BMA be read to have "effectively assigned"

Stol's rights under the first use agreement. That agreement

pertained to Hangar Trust's rights in Lot F and did not purport

to assign Stol's reciprocal rights in Lot G. Moreover, when

Stol had earlier assigned its leasehold interest in Lot F to

Swift Aviation, the assignment and assumption agreements did not

include or even reference the first use agreement. Stol

assigned no rights to use Lot G to Swift Aviation. As the

motion judge noted, leaseholders may not amend their subleases

to add rights that were not conferred on them in their

subleases. Swift Aviation's business ended on December 9, 2011,

the day it sold its leasehold interest to Boston Executive

Helicopters LLC. When Swift Aviation entered into the October

2012 and March 2013 assignment, assumption, and amendment of

lease agreements, it no longer had any rights or interests under

the second use agreement to assign. As such, these agreements

transferred no rights to use the F/G taxiway on Lot G to the

defendants. In short, we find no error in the judge's analysis

and reject the defendants' construction of the agreements.

Accordingly, the judge did not err in denying this aspect of the

defendants' motion for judgment n.o.v. As we have determined

that the summary judgment order was correct, the defendants'

17
derivative claims of error relating to the "incorrect" order

necessarily fail.

3. Other issues. We discern no abuse of discretion or

prejudicial error in the judge's decision to issue an "omnibus"

pretrial order with respect to FlightLevel's seven separate

motions in limine. The judge was not required to wait until

each piece of evidence was offered to rule. In any event, the

defendants acknowledge that the evidence at issue pertained

primarily if not exclusively to FlightLevel's G. L. c. 93A

claim, as to which we have already ruled in the defendants'

favor on another ground, supra. The defendants' one-sentence

argument that the trespass and negligence verdicts were against

the weight of the evidence does not rise to the level of

adequate appellate argument. See Mass. R. A. P. 16 (a) (9), as

appearing in 481 Mass. 1628 (2019). Were we to reach the

merits, we would find no abuse of discretion in the denial of

the motion for new trial. See Doull v. Foster, 487 Mass. 1, 5

(2021). The verdicts and damage awards were amply supported by

the evidence, including the testimony of Peter Eichleay and

videotape evidence.

Conclusion. Paragraph 3, under the heading "In

1582CV01637," of the consolidated judgment is vacated and the

matter is remanded for the entry of judgment in favor of Boston

Executive Helicopters LLC, Christopher Donovan, and Robert Silva

18
on the plaintiffs' G. L. c. 93A claim. The consolidated

judgment is otherwise affirmed. The consolidated order denying

the motion for judgment n.o.v. is affirmed with respect to the

summary judgment and reversed with respect to the G. L. c. 93A

claim. The consolidated order denying the motion for a new

trial is affirmed.

So ordered.
By the Court (Henry, Sacks &
Singh, JJ. 17),

Clerk

Entered: February 12, 2025.

17 The panelists are listed in order of seniority.

19