TRESCA BROTHERS SAND & GRAVEL, INC. v. EAMES STREET, LLC, & Others.

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

24-P-1319

TRESCA BROTHERS SAND & GRAVEL, INC.

vs.

EAMES STREET, LLC, & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Tresca Brothers Sand & Gravel, Inc.

(Tresca), appeals from a summary judgment entered in Superior

Court in favor of the defendant, Eames Street, LLC (Eames).

Tresca also challenges the dismissal of its claims for

intentional interference with contractual relations, intentional

interference with advantageous business relations, and

conspiracy, as well as the denial of its request to amend its

complaint to add claims for violations of G. L. c. 93, G. L.

c. 93A, and abuse of process. We affirm.

1Benevento Concrete Corp.; Benevento Family Limited
Partnership; Benevento Family, LLC; Charles J. Benevento;
planning board of Wilmington; board of appeals of Wilmington;
and town of Wilmington.
Background. In 2003, Tresca entered into a lease with

Glens Falls Lehigh Cement Company (Lehigh) for two noncontiguous

portions (leased premises) of a property in Wilmington

(property) upon which Lehigh operated a cement terminal. The

lease also grants Tresca a nonexclusive easement between the two

areas that comprise the leased premises. The lease defines the

boundaries of the leased premises by reference to an attached

exhibit, which consists of a site plan of the property with

hand-drawn boundaries identifying the leased premises (site

plan). The lease provides that the leased premises include "all

licenses, permits, and other agreements appurtenant thereto,"

and that the term of the lease will commence when Tresca obtains

the necessary permits to operate a concrete plant on those

premises. Tresca and Lehigh contemporaneously entered into a

separate agreement under which Lehigh would supply, and Tresca

would purchase, cement for Tresca's facilities in Wilmington and

Millis.

In 2015, Tresca applied to the town of Wilmington (town)

board of appeals (board) for permits to operate a concrete

plant. The plan Tresca submitted required construction upon

portions of the property outside of the boundaries shown on the

site plan. The board denied the permits and Tresca appealed to

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the Superior Court, which, following a trial, directed the board

to issue the permits.

In April 2019, Lehigh sold the property to Martignetti

Development, LLC, which is one of Tresca's cement industry

competitors. The agreement memorializing the sale disclosed the

Tresca lease and stated that at closing, the lease would be

assigned to Martignetti Development, LLC. In June 2019,

Martignetti Development, LLC changed its name to Eames. In

October 2019, Eames informed the town that it had purchased the

property, Tresca's use of the property was limited to those

portions of the property identified on the site plan, and the

remaining portions of the property would be used for purposes

other than the proposed concrete plant. In November 2020, the

board issued special permits to Tresca.

Tresca filed this action against Eames; Eames's sole

member, Charles Benevento; and Benevento's other companies

(Benevento defendants).2 Tresca alleged that Benevento and his

companies actively opposed Tresca's efforts to obtain the

permits and sought a declaration that it was entitled to proceed

with the construction of the concrete plant. Eames

counterclaimed, seeking a declaration that Tresca does not have

2 Tresca also named the town, the board, and the town's
planning board as defendants. Those municipal defendants,
however, are not parties to this appeal.

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the right to use any portion of the property outside the

portions identified on the site plan.

A judge of the Superior Court allowed Eames's motion to

dismiss Tresca's claims for intentional interference with

contractual relations, intentional interference with

advantageous business relations, and conspiracy. The judge also

denied Tresca's motion for reconsideration. Thereafter, Tresca

moved to amend its complaint to add claims for violations of

G. L. c. 93, G. L. c. 93A, and abuse of process. A second judge

denied Tresca's motion to amend and subsequent motion for

reconsideration. The denials of Tresca's motions to amend and

reconsider were upheld by a single justice of this court.

Eames then moved for summary judgment, asserting that the

lease was unambiguous and Tresca did not have the right to build

a concrete plant outside the area identified as the leased

premises on the site plan. Tresca countered that the site plan

was ambiguous. A third judge allowed the motion, entering

judgment in favor of Eames on Tresca's claims for declaratory

relief, breach of contract, breach of the implied covenant of

good faith and fair dealing, and specific performance, and on

Eames's counterclaim for declaratory relief. Tresca appealed.

Discussion. 1. Summary judgment ruling. a. Standard of

review. Tresca contends that the judge erred in granting

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summary judgment to Eames. "We review a decision on a motion

for summary judgment de novo." Conservation Comm'n of Norton v.

Pesa, 488 Mass. 325, 330 (2021) (Pesa). "Summary judgment is

appropriate where there is no genuine issue of material fact and

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

Barbetti v. Stempniewicz, 490 Mass. 98, 107 (2022), quoting

Pesa, supra; Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404

(2002).

b. Whether the lease was ambiguous. Tresca challenges the

judge's conclusion that the lease is unambiguous and, by its

terms, Tresca does not have the right to build a concrete plant

outside of the area shown on the site plan attached to the

lease.

Whether a legal document's language is ambiguous, and the

interpretation of an unambiguous document, are questions of law

that we review de novo. See Bank v. Thermo Elemental Inc., 451

Mass. 638, 648 (2008). To determine whether a document is

ambiguous, "the court must first examine the language of the

contract by itself, independent of extrinsic evidence concerning

the drafting history or the intention of the parties." Id.

"[A]n ambiguity is not created simply because a controversy

exists between the parties, each favoring an interpretation

contrary to the other's." Suffolk Constr. Co. v. Lanco

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Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999), quoting

Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472, 475

(1987). Extrinsic evidence may be admitted only when the

document is ambiguous on its face or as applied to the subject

matter. See General Convention of the New Jerusalem in the U.S.

of Am., Inc. v. MacKenzie, 449 Mass. 832, 835-836 (2007).

i. Identification of the leased premises. Tresca first

argues that the lease and attached site plan do not set forth a

definite description of the leased premises. The lease states

that the leased premises includes a "portion of the premises

shown on . . . Exhibit 'A.'" Exhibit A is the site plan of the

property, which is marked with hand-drawn boundaries and

annotations. We agree with the judge that, although this site

plan "is imprecise in the sense that it does not include the

exact dimensions of the drawn boundaries," the fact that the

boundaries are hand-drawn does not create a dispute of material

fact that precludes summary judgment. Rather, the lease and

site plan unambiguously show that when Lehigh and Tresca

executed the lease in 2003, they intended to enter into a lease

for only a portion of the property, as marked by the approximate

boundaries in the site plan.

ii. Permits appurtenant to the leased premises. Tresca

contends that the judge erred in concluding that the permits and

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alleged verbal agreements between Lehigh and Tresca concerning

the scope of the leased premises were not appurtenant to the

leased premises. Section 1.02(c) of the lease provides that the

leased premises includes "[a]ll licenses, permits and other

agreements appurtenant thereto." At summary judgment, Tresca

contended that the language "permits" and "other agreements"

contemplates future permits and agreements between the parties,

including the special permits issued by the board in 2020, as

well as verbal and written agreements allegedly entered into by

Lehigh and Tresca after execution of the lease, that granted

Tresca the right to build a concrete plant outside the

boundaries marked on the site plan. Because appurtenant rights

must be in use at the time a leasehold interest is granted, see

Melville Shoe Corp. v. Kozminsky, 268 Mass. 172, 180-181 (1929),

and there is no evidence that Lehigh held a permit to construct

a concrete plant in 2003, the judge concluded that there were no

appurtenant permitting rights to be granted under the lease.

The judge similarly rejected Tresca's argument that the

agreements allegedly entered into by Lehigh and Tresca after the

execution of the lease amounted to "other agreements

appurtenant" to the leased premises.

Tresca now argues that the judge erred by ignoring that,

under § 1.03 of the lease, "Tresca's tenancy did not and could

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not begin until after" the town granted the special permits in

2020. It does not appear, however, that Tresca made this

argument in response to Eames's motion for summary judgment.

"An issue not raised at the trial court is not entitled to

review here." Edgar v. Edgar, 406 Mass. 628, 629 (1990). Even

if the argument were not waived, we would still reject it.

Section 1.03 provides that the term of the lease:

"shall commence simultaneously with and shall be contingent
upon (i) agreeing on the plan to be attached as Exhibit A
and (ii) obtaining all necessary municipal state or federal
permits to occupy and operate said premises as a concrete
batch plant . . . and commencing operation of its concrete
batch plant on the leased premises."

It does not follow, as Tresca argues, that a special permit

contemplating operation of a concrete plant beyond the scope of

the leased premises, obtained seventeen years after the lease's

execution, becomes "incorporated into the definition of the

leased premises under § 1.02(c)." To the contrary, § 1.03

refers to the operation of a concrete plant on the premises as

defined in the preceding section, and § 2.02 addresses the

procurement and maintenance of "any governmental license or

permit" required for "the proper and lawful conduct of Lessee's

business on the premises or in any part thereof" (emphasis

added). We therefore reject Tresca's argument that, under

§ 1.02(c), the special permits it obtained in 2020 "expanded the

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definition of the leased premises, or at the very least, created

ambiguity as to the scope of the leased premises."

iii. Custom and practice of commercial leasing. Tresca

also contends that the lease is ambiguous "under the custom and

practice of commercial leasing." It cites an expert report

asserting that the site plan did not represent a final

understanding between Tresca and Lehigh, and that Tresca and

Lehigh likely had a mutual understanding that the area defined

as the leased premises would need to be modified during the

municipal approval process. Tresca moved to supplement the

summary judgment record with this expert report after the record

was filed. The judge denied its motion, explaining that he had

"determined that the relevant portions of the lease agreement at

issue are not ambiguous" and "the proposed expert testimony as

to trade usage [was] not material to the Court's decision." See

Cesana v. Johnson, 232 Mass. 444, 448 (1919). Because Tresca

does not challenge in this appeal the judge's denial of its

motion to supplement the summary judgment record, the report is

not before us and we cannot consider it. See Fidelity Mgt. &

Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200 (1996),

quoting Cullen Enters., Inc. v. Massachusetts Prop. Ins.

Underwriting Ass'n, 399 Mass. 886, 889 n.9 (1987) ("In our

review of a motion for summary judgment we are 'confined to an

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examination of the materials before the court at the time the

rulings were made'").

iv. Lehigh and Tresca's conduct after execution of the

lease. Lastly, Tresca asserts that the lease's ambiguity is

evidenced by the actions of Lehigh and Tresca following its

execution. It points to the fact that Lehigh assisted Tresca

with its efforts to obtain permits, and those efforts called for

the concrete plant to make use of land beyond the area

identified on the site plan, and that Lehigh allowed Tresca to

prepare for its project on land outside that area. We do not,

however, consider extrinsic evidence "to create an ambiguity

when the plain language is unambiguous." General Convention of

New Jerusalem in the U.S. of Am., Inc., 449 Mass. at 835, citing

Panikowski v. Giroux, 272 Mass. 580, 583 (1930). As discussed

supra, the lease unambiguously shows that Lehigh and Tresca

entered into a lease for only a portion of the property, as

delineated in the site plan in the attached exhibit. Thus, even

if Lehigh and Tresca contemplated that Tresca would construct

and operate a concrete plant beyond the scope of the leased

premises, there was no "initial ambiguity" regarding how the

lease defined such premises. See General Convention of New

Jerusalem in the U.S. of Am., Inc., supra at 835-836.

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Accordingly, there is no genuine issue of material fact

regarding the lease's ambiguity.

c. Whether the lease was amended. As an alternative

ground for challenging the summary judgment ruling, Tresca

contends that the judge erred in rejecting its claim that Lehigh

and Tresca amended the lease. Again, we disagree.

Where "the parties have defined the method in their

contract to bring about" a modification to the terms of the

contract, any "attempt to do so that does not conform to the

method laid down by them is invalid" (quotation and citation

omitted). Bright Horizons Children's Ctrs., Inc. v. Sturtevant,

Inc., 82 Mass. App. Ct. 482, 486 (2012). Here, § 20.05 of the

lease provides that it "shall not be modified except by a

writing, subscribed by both parties." Tresca does not address

that provision in its brief, but rather contends that the lease

"did not require some formally enumerated amendment to become

effective" because it "contemplated the integration of future

permits in § 1.02(c)." As discussed supra, there is no merit to

Tresca's assertion that § 1.02(c) contemplates the incorporation

of permitting rights not in existence at the time the lease was

executed into its definition of leased premises.

Tresca did not present any evidence of a written amendment

to the lease in its opposition to Eames's summary judgment

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motion. Instead, Tresca argues that it and Lehigh engaged in a

joint enterprise to develop a concrete plant outside the scope

of the leased premises and that the lease was modified as the

result of "Lehigh's written endorsement of permit applications"

contemplating such an expanded concrete plant. Those permit

applications are not in the summary judgment record either,

however, and, as the judge explained, there is no evidence of

"what Lehigh represented or agreed to by signing the

applications" or the authority of the employees who signed the

permit applications to modify the lease.

Tresca also points to evidence that "Lehigh's

representatives made multiple oral representations subsequent to

the Lease's execution that" the site plan attached to the lease

"did not encompass the final understanding as to the scope of

the leased premises." Setting aside that some of this evidence

is also outside the summary judgment record, it does not create

a disputed issue of material fact. First, a lease is subject to

the Statute of Frauds and therefore cannot be modified orally.

See Matter of Estate of Widdiss, 98 Mass. App. Ct. 808, 814

(2020), citing G. L. c. 259, § 1 (Fourth). Second, as

discussed, § 20.05 of the lease provides that it may be modified

only "by a writing, subscribed by both parties." Third, "a

party asserting that an oral modification occurred must present

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evidence that the parties reached an agreement as to its terms,"

Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 217

(2018), and the summary judgment record does not contain any

evidence that Lehigh and Tresca agreed to modify the lease. To

the contrary, Lehigh's designee under Mass. R. Civ. P.

30 (b) (6), as appearing in 489 Mass. 1401 (2022), testified

that the lease was not amended.3

2. Dismissal of Tresca's intentional interference and

conspiracy claims. Tresca argues that the judge erred by

dismissing its claims for intentional interference with

contractual relations, intentional interference with

advantageous business relations, and conspiracy. "We review the

grant of a motion to dismiss de novo, accepting as true all

well-pleaded facts alleged in the complaint, drawing all

reasonable inferences therefrom in the plaintiff's

favor . . . ." Lanier v. President & Fellows of Harvard

College, 490 Mass. 37, 43 (2022). "In assuming the facts as

3 For similar reasons, we reject Tresca's contention that
"Lehigh's assistance . . . estops Benevento from denying
Tresca's right to operate a batch plant in accordance with the
permits it obtained." The judge dismissed Tresca's claim of
equitable estoppel against the Benevento defendants, and Tresca
has not challenged that ruling in its appeal. As discussed, the
evidence does not support Tresca's claims that "the anticipated
permits" were incorporated "into the definition of the leased
premises," or that the parties made oral or written
modifications to the lease after its execution.

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alleged, however, '[w]e do not regard as "true" legal

conclusions cast in the form of factual allegations'" (citation

omitted). Edwards v. Commonwealth, 477 Mass. 254, 260 (2017).

"To survive a motion to dismiss, the facts alleged must

plausibly suggest[] (not merely be consistent with) an

entitlement to relief" (quotation omitted). Id., quoting

Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

Tresca's claims were properly dismissed.

"To prevail on a claim of tortious interference with a
contract, a plaintiff must establish that (1) he had a
contract with a third party; (2) the defendant knowingly
induced the third party to break that contract; (3) the
defendant's interference, in addition to being intentional,
was improper in motive or means; and (4) the plaintiff was
harmed by the defendant's actions" (quotation omitted).

Weiler v. PortfolioScope, Inc., 469 Mass. 75, 84 (2014), quoting

Psy-Ed Corp. v. Klein, 459 Mass. 697, 715-716 (2011). The judge

dismissed Tresca's claims because it failed to allege that any

conduct by the Benevento defendants caused a third party to

break the lease, which, the judge noted, "is very much still in

effect and binding on Eames Street." See Blackstone v. Cashman,

448 Mass. 255, 259 n.8 (2007) ("A party to a contract cannot be

held liable for intentional interference with that contract").

Although Tresca contends that the judge erred by conflating

Benevento "and his various corporate entities" with Eames,

Tresca's complaint does not make any nonconclusory allegations

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regarding the conduct of the Benevento defendants that are

distinct from the alleged conduct of Benevento himself, who is

the sole member of Eames. See Iannacchino, 451 Mass. at 636

(conclusory assertions insufficient to withstand motion to

dismiss). Furthermore, there is no inherent inconsistency in

the judge's decision to dismiss Tresca's intentional

interference claim while allowing its contract claims to proceed

to discovery. See Duff v. McKay, 89 Mass. App. Ct. 538, 547

(2016) (party that brings action for breach of contract may

still be bound to that contract).

Tresca's claim for intentional interference with

advantageous relations fails for similar reasons.

"To make a successful claim for intentional interference
with advantageous relations, a plaintiff must prove that
(1) he had an advantageous relationship with a third party
(e.g., a present or prospective contract or employment
relationship); (2) the defendant knowingly induced a
breaking of the relationship; (3) the defendant's
interference with the relationship, in addition to being
intentional, was improper in motive or means; and (4) the
plaintiff was harmed by the defendant's actions."

Blackstone, 448 Mass. at 260. Here, Tresca failed to plausibly

allege "an advantageous relationship with a third party" that

was broken as the result of the defendants' conduct. Id. The

relationship at issue here involves the lease between Tresca and

Lehigh, which was assumed by Eames in 2019 and remains in

effect.

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Because Tresca does not develop any argument or cite any

legal authority in support of its civil conspiracy claim, that

argument is waived. See Mass. R. A. P. 16 (a) (9), as appearing

in 481 Mass. 1628 (2019). See also K.A. v. T.R., 86 Mass. App.

Ct. 554, 567 (2014). In addition, we agree with the judge's

conclusion that Tresca failed to plausibly allege any concerted

action by the defendants rising to a tortious act. Contrast

Williamson v. Barlam, 103 Mass. App. Ct. 727, 733 (2024), citing

Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011).

3. Denial of leave to amend. Lastly, Tresca argues that

the second judge erred in denying its motion to amend its

complaint to add additional claims for violations of G. L.

c. 93, G. L. c. 93A, and abuse of process.4 We review the denial

of a motion to amend a complaint for abuse of discretion. Chang

v. Winklevoss, 95 Mass. App. Ct. 202, 212 (2019). Although

leave to amend to assert new claims "should be 'freely given

when justice so requires,' Mass. R. Civ. P. 15 (a), 365 Mass.

761 (1974), such leave may be denied where there is undue delay,

undue prejudice to the opposing party, or futility in the

amendment." Nguyen v. Massachusetts Inst. of Tech., 479 Mass.

436, 461 (2018). Tresca moved to amend in November 2021,

4 A single justice upheld the denials of this motion and a
related motion for reconsideration.

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sixteen months after the tracking order deadline for such

motions had expired and eight months after the first judge

decided the defendants' motion to dismiss. The judge found the

lateness of Tresca's motion unjustified because "no discovery

[had] ensued in the litigation" and, therefore, there were "no

newly discovered facts or claims that [Tresca] did not have

available to it when the action was commenced." She concluded

that this failure to reasonably advance the litigation amounted

to undue delay, noting that "the costs and time associated with

reversing and repeating litigation stages is implicitly

prejudicial to the other party(ies)." The judge was also

understandably unpersuaded by Tresca's argument that its delay

was justified in light of the defendants' "strategy of filing

sham litigation and delaying or preventing [Tresca's] concrete

plan[t]." We discern no abuse of discretion.

Judgment affirmed.

By the Court (Meade,
Ditkoff & Toone, JJ.5),

Clerk

Entered: December 2, 2025.

5 The panelists are listed in order of seniority.

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