Williamson v. Barlam

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22-P-985 Appeals Court

MARK W. WILLIAMSON, trustee,1 vs. TAMAR BARLAM2 & others.3

No. 22-P-985.

Suffolk. November 6, 2023. - February 15, 2024.

Present: Green, C.J., Blake, & Henry, JJ.

Real Property, Purchase and sale agreement, Restrictions,
Condominium. Condominiums, Management of trust, Derivative
suit. Contract, Interference with contractual relations,
Implied covenant of good faith and fair dealing. Consumer
Protection Act, Sale of condominium unit. Fiduciary.
Waste. Trust, Breach of trust. Declaratory Relief.
Practice, Civil, Dismissal, Amendment of complaint, Trustee
of condominium management trust, Consumer protection case.

Civil action commenced in the Superior Court Department on
November 5, 2021.

A motion to dismiss was heard by Kenneth W. Salinger, J.,
and a motion for reconsideration was considered by him.

1 Of the 902 Mass Ave Realty Trust and derivatively on
behalf of 902-912 Massachusetts Avenue Condominium Trust.

2 Individually and as trustee of the 902-912 Massachusetts
Avenue Condominium Trust.

3 David Barlam, Padraig O'Malley, Gabriel O'Malley, and
Stephanie Mamakos, individually and as trustees of 902-912
Massachusetts Avenue Condominium Trust, and Georgia Mamakos.
2

Gregory J. Aceto for the plaintiff.
James P. Lucking for the defendants.

BLAKE, J. This case involves five commercial condominium

units on Massachusetts Avenue in Cambridge and a condominium

trust that contains a use restriction providing that no business

conducted in any of the units shall "substantially compete" with

a business operating in any other unit unless four of the five

trustees assent in writing (noncompete clause). The term

"substantially compete" is not defined by the condominium trust.

The plaintiff, Mark Williamson, filed suit in the Superior Court

alleging, in pertinent part, that the defendants wrongly

interfered with his efforts to sell his unit. Following a

hearing on the defendants' motion to dismiss Williamson's

complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1976), the judge allowed the motion, entered a judgment of

dismissal with prejudice, and denied Williamson's motion for

reconsideration and renewed motion for leave to amend. On

Williamson's appeal, we affirm in part, and reverse in part.

Background. Mark Williamson is the trustee of the 902 Mass

Ave Realty Trust, which owns a commercial condominium unit

located at 902-904 Massachusetts Avenue in Cambridge (unit).

The unit is one of five units in a commercial condominium, which

are managed through the 902-912 Massachusetts Avenue Condominium
3

Trust (trust), created by a declaration of trust dated February

20, 2007, and pursuant to G. L. c. 183A. Unit 906 houses the

Mass Ave Diner (which serves breakfast, brunch, and lunch, and,

after the trust was created, obtained a liquor license), and is

owned by defendant David Barlam, the son of defendant Tamar

Barlam (owner of 908 Massachusetts Avenue and trustee). Unit

912 houses The Plough and Stars (a full-service Irish bar and

restaurant, which serves lunch and dinner, has live music and a

liquor license) and is owned by Gabriel O'Malley, who also is a

trustee. The remaining defendants include Padraig O'Malley

(owner of 912 Massachusetts Avenue and uncle to Gabriel),

Georgia Mamakos (owner of 912 Massachusetts Avenue), and

Stephanie Mamakos (trustee and daughter of Georgia).4

The trust bylaws include a noncompete clause that is set

forth in Article V, Section 5, of the trust and provides:

"It is hereby agreed that no business conducted in any of
the Units shall substantially compete with a business
conducted in any other Unit unless four (4) Trustees assent
thereto in writing. For purposes hereof it is hereby
acknowledged that the businesses that exist at the time of
recording this Declaration of Trust do not violate this
provision."5

4 As several defendants share a surname, we refer to them by
their first names to avoid confusion.

5 Each unit owner is entitled to appoint one of the five
trustees.
4

The term "substantially compete" is not defined by the trust.

Because the Mass Ave Diner and The Plough and Stars existed at

the time that the trust was recorded, they "do not violate"

Article V, Section 5, but the trust does not indicate whether

these businesses do not "substantially compete" or whether they

had sufficient trustee votes if they do "substantially compete."

The trust does not otherwise give examples of what businesses

would or would not substantially compete with each other such

that if relationships between owners soured, there would be no

governing standard.6

Williamson purchased his unit in 2007 after the creation of

the trust. The Atomic Bean Café operated in the unit owned by

Williamson from 2008 until it closed in the fall of 2020. In

March 2021, Williamson entered into a purchase and sale

agreement (P&S) with Christopher Willis to sell his unit.

Willis intended to open a fine dining Italian restaurant with a

full liquor license. Under the P&S, Willis could terminate the

6 The attorney who drafted this provision testified at his
deposition that at the time that he drafted the provision, the
unit owners were getting along. This seems to be without
consideration of what might occur if the unit owners did not all
get along in the future, as is this case here. The record does
not include any evidence of written assent to any degree of
"substantial competition" between the two businesses; on the
present record, it is at least a question of disputed fact
whether the statement in the trust that the then existing
businesses do not violate the provision should be construed as
an interpretive guide or as a reflection that the businesses
obtained written assents that do not appear in the record.
5

contract if he was unable to obtain the express written consent

of four trustees if required by the noncompete clause. Willis's

attempts to negotiate with the trustees failed; as was his right

under the P&S, Willis cancelled the contract.

In October 2021, Williamson entered into a P&S with Yandi

Huang, who intended to open a Japanese Asian cuisine restaurant

in the unit, with a purchase price that was $175,000 less than

Willis had offered. The P&S contained the same terms as the

Willis P&S including the noncompete clause and the right to

cancel if Huang did not secure the written assent of four

trustees. Williamson alleges that "[a]s a result of the

defendant's [sic] unreasonable conduct," this sale was never

consummated.

Williamson brought suit in his individual capacity against

all defendants for tortious interference with a contract, civil

conspiracy, and violation of G. L. c. 93A (93A claim). He also

brought suit in his capacity as trustee of the 902 Mass Ave

Realty Trust against Tamar, Gabriel, and Stephanie for breach of

fiduciary duty, and waste, mismanagement, and misappropriation

of trust assets.7 The verified complaint also contained a count

7 The complaint did not name Ronald C. Clarizia, one of the
original trustees of the 902-912 Massachusetts Avenue
Condominium trust, a current trustee and owner of 910
Massachusetts Avenue, as a defendant. Clarizia's affidavit,
filed with Williamson's opposition to the motion to dismiss,
stated that the noncompete clause "was not meant to prevent a
6

for declaratory relief seeking multiple declarations, including

that the noncompete clause be declared unenforceable.

Williamson also asked, albeit in a prayer for relief, for a

declaration that the businesses owned by David and Gabriel and

the businesses proposed by Willis and Huang are substantially

different such that the trustees' assent is not legally

necessary under the noncompete clause.8

The defendants filed a motion to dismiss contending that

the complaint failed to state a claim upon which relief could be

granted, and failed to set forth any facts supporting

Williamson's requests for declaratory relief. They requested

that the complaint be dismissed with prejudice and without leave

to replead. Williamson filed an opposition, and asked in the

alternative for leave to amend the complaint, though he did not

attach a proposed amended complaint. The judge allowed the

defendants' motion and a judgment of dismissal with prejudice

entered. The judge denied Williamson's motion to reconsider and

broad category of businesses or restaurants from opening in a
Condominium Unit," and that Willis's and Huang's proposed
restaurants did not substantially compete with the existing
restaurants. Clarizia averred that the defendants were not
acting in good faith, and "harm[ing]" the trust, thereby
reducing the value of the units.

8 Because there is no indication that Willis or Huang
continue to be ready to purchase the unit from Williamson, we
read this paragraph broadly as asking for an interpretation of
the noncompete clause such that Williamson and the other owners
know their respective rights and obligations.
7

renewed motion for leave to amend the complaint, again without a

proposed amended complaint, but with a summary of the additional

allegations he would include in an amended complaint. This

appeal followed.

Discussion. The judge dismissed Williamson's complaint

with prejudice "for the reasons stated in Defendants' initial

and reply memoranda." This margin notation, without further

explanation, gives us pause as to whether the judge construed

the complaint in the light most favorable to Williamson, as he

was required to do. See Buffalo-Water 1, LLC v. Fidelity Real

Estate Co., LLC, 481 Mass. 13, 17 (2018). Nonetheless, we

review a motion to dismiss de novo, see A.L. Prime Energy

Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass.

419, 424 (2018), and "[w]e limit our consideration to the

factual allegations in the plaintiff's complaint, taking them as

true and drawing all reasonable inferences in the plaintiff's

favor." Porter v. Board of Appeal of Boston, 99 Mass. App. Ct.

240, 243 (2021).9

Williamson, individually and as a trustee, contends that

dismissal of the complaint was erroneous, premature, and

inequitable, and that the judge abused his discretion in denying

9 The complaint most often refers to "defendants" but
sometimes refers to "defendant's" or "defendant" without
specifying an individual defendant. We construe the references
to defendants within the context of the complaint.
8

Williamson's requests for leave to amend and motion for

reconsideration. Generally speaking, Williamson claims that the

noncompete clause was not intended to prevent a broad category

of businesses from opening in the unit, and that the defendants

interfered with the sale of his unit. Williamson further

contends that, among other things, he is entitled to a

declaration that the proposed restaurant use of the unit did not

violate the noncompete clause. We address each claim in turn.

1. The noncompete clause. Although at this stage of the

proceedings we do not have the occasion to construe the

noncompete clause at issue, we begin with a brief discussion of

it as it is the underlying basis for most of Williamson's

claims. Among other things, Williamson sought a declaration

that the noncompete clause was unenforceable in these

circumstances and was an unreasonable restraint on alienation

facially and as applied, that the trustees' assent was not

necessary, and that the noncompete clause was inapplicable to

the proposed buyers. Massachusetts has long recognized that

restrictions may be imposed on the uses that may be made of

condominium units. See Franklin v. Spadafora, 388 Mass. 764,

774 (1983). See also G. L. c. 183A, §§ 8 (g) and 11 (e). “The

most common standard [for reviewing provisions that restrict

certain condominium uses] is equitable reasonableness” (citation

omitted)." Noble v. Murphy, 34 Mass. App. Ct. 452, 457 (1993).
9

When a noncompete clause appears in originating documents, which

predate the purchase of a unit, the review is "even more

liberal" as here Williamson knew of and accepted the noncompete

clause when he purchased the unit. Id. at 458. Thus, a

noncompete clause "will not be invalidated absent a showing that

[it is] wholly arbitrary in [its] application, in violation of

public policy, or that [it] abrogate[s] some fundamental

constitutional right" (citation omitted). Id. at 459. Though

interpretation of a noncompete clause is largely a question of

law, where (as in the present case) important terms of the

clause are undefined it may be necessary to resort to parol

evidence to construe its meaning and scope. In any event, the

condominium trust is in essence a contract, and interpretation

of a contract looks principally to the intent of the parties,

construed in light of the facts and circumstances surrounding

its creation. See, e.g., Kobayashi v. Orion Ventures, 42 Mass.

App. Ct. 492, 496-497 (1997).

a. Tortious interference with a contract and civil

conspiracy. To state a claim of tortious interference with a

contract, [Williamson] must plausibly allege that "(1) he had a

contract with a third party; (2) the defendant[s] 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) [Williamson] was harmed
10

by the defendant[s'] actions." Draghetti v. Chmielewski, 416

Mass. 808, 816 (1994). The third element -- improper motive or

means -- requires "something more than intentional

interference." United Truck Leasing Corp. v. Geltman, 406 Mass.

811, 815 (1990). The improper motive or means may include

"deceit or economic coercion . . . or ill will" (quotations and

citations omitted). Huang v. RE/MAX Leading Edge, 101 Mass.

App. Ct. 150, 164 (2022), S.C., Huang v. Ma, 491 Mass. 235

(2023). To state a claim of civil conspiracy, Williamson must

show "an underlying tortious act in which two or more persons

acted in concert and in furtherance of a common design or

agreement." Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384

(2011).

Taking the factual allegations in the light most favorable

to Williamson, the complaint alleged that tensions developed

between Williamson and the unit owners and trustees concerning

the use and management of the trust property, ultimately causing

the defendants to deliberately interfere with Williamson's

efforts to sell his unit. Specifically, in response to Willis's

attempts to secure the assent of the trustees for his proposed

Italian restaurant, the defendants insisted that Willis enter

into a nondisclosure agreement to prevent Williamson from

learning the details of their discussions, including the

financial concessions the defendants sought. In addition, the
11

complaint alleged that David and Gabriel unreasonably demanded

that Willis pay them for every seat that Willis intended to

place in his restaurant to secure their assent to the sale.10

David, who was not a trustee, and therefore had no authority to

withhold assent to the sale or negotiate concessions, allegedly

told Willis that he was paying too much for the unit, and that

he would never allow any restaurant to open in the unit.

Williamson also alleged that David told him that he would never

allow any restaurant to be opened in the unit under any

circumstances. In addition, David told Willis's wife that he

wanted to buy the unit because he already owned a unit, and

Williamson's unit was on the other side.

Taking Williamson's allegations as a whole, David and

Gabriel's actions can be fairly read as an effort to make it so

difficult for Williamson to sell his unit, that he would agree

to sell it to David at an artificially lower price. At bottom,

David and Gabriel are alleged to have acted outside the ordinary

course of bargaining by using threats, misrepresentations, and

improper means to interfere with Williamson's efforts to sell

his unit. The use of threats to interfere with a business is

10The complaint alleges that David and Gabriel demanded
that "the Defendants receive payment for every seat" but there
is no indication that the other defendants knew of this alleged
demand. Based on Williamson's briefing, we understand that
"defendants" in this context refers to David and Gabriel.
12

improper and antithetical to an assertion of rights. See

Skyhook Wireless, Inc. v. Google Inc., 86 Mass. App. Ct. 611,

622 (2014) (exercise of rights not improper means but acting

through threats, misrepresentations of fact, and other improper

means may be).11 See also Huang, 101 Mass. App. Ct. at 164-165

(improper conduct includes ulterior motives, deceit, and

economic coercion). Moreover, trustees such as Gabriel, cannot

put themselves in a position where their interests conflict with

the trust's interests. See Kneer v. Zoning Bd. of Appeals of

Norfolk, 93 Mass. App. Ct. 548, 556 (2018). And because these

claims require an assessment of the defendants' states of mind,

they should be evaluated on a full factual record, and not on a

motion to dismiss. See Fraelick v. PerkettPR, Inc., 83 Mass.

App. Ct. 698, 708 (2013). Moreover, the complaint alleged that

David and Gabriel "combin[ed] together in concerted action" to

interfere with the Willis P&S. See Bartle v. Berry, 80 Mass.

App. Ct. at 383-384. Accordingly, we conclude that Williamson

pleaded sufficient facts with enough heft to state a claim for

tortious interference with a contract and civil conspiracy to

tortiously interfere with the sale against David and Gabriel,

11To be clear, to the extent that a proposed business would
substantially compete under the noncompete clause, there may be
nothing inherently wrong in a substantially similar business
ceding its rights under the noncompete clause for compensation
such as a monetary payment.
13

and therefore these counts of the complaint should not have been

dismissed against David and Gabriel. See Iannachino v. Ford

Motor Co., 451 Mass. 623, 636 (2008).

As to the remaining four defendants, the complaint

identified Tamar and Stephanie as trustees, and Padraig and

Georgia as unit owners. Read as a whole, the complaint alleged

that the proposed restaurants did not substantially compete, and

by demanding concessions from the proposed buyers, the

defendants deliberately interfered with the proposed sale. This

type of demand and its resultant impact on the P&S is sufficient

to survive a motion to dismiss if the proposed restaurants do

not substantially compete with the existing restaurants. As

discussed supra, the term "substantially compete" is undefined

in the trust, and therefore on the facts as alleged, the

question of whether the defendants' actions in withholding their

assent to the sale to Willis was proper or improper cannot be

determined on this record. Put differently, it was error to

dismiss these claims where the question of whether a fine dining

Italian restaurant or a Japanese Asian restaurant "substantially

competed" with at least the "Plough and Stars" (a full-service

Irish bar and restaurant that serves lunch and dinner and has

live music and a liquor license) cannot be determined by the

plain language of the noncompete clause.
14

b. Covenant of good faith and fair dealing. Finally,

every contract is subject to an implied covenant of good faith

and fair dealing, see Anthony's Pier Four, Inc. v. HBC Assocs.,

411 Mass. 451, 473 (1991), that requires that parties to a

contract shall not do anything that would "have the effect of

destroying or injuring the right[s] of the other part[ies] to

receive the fruits of the contract." Druker v. Roland Wm.

Jutras, Assocs., Inc., 370 Mass. 383, 385 (1976). The complaint

plausibly suggests that there is a triable question whether the

defendants violated the covenant of good faith and fair dealing

by restricting the use of the unit and impeding the sale to

Willis. For this additional reason, dismissal was error.

c. Chapter 93A claim. Chapter 93A claims require unfair

or deceptive acts or practices "in the conduct of any trade or

commerce." G. L. c. 93A, § 2. Trustees are part "of a

volunteer governing board" of the trust and therefore "are not

engaged in trade or commerce." Office One, Inc. v. Lopez, 437

Mass. 113, 125 (2002). Williamson alleged that David and

Gabriel are engaged in trade or commerce as restaurant owners

and that the defendants engaged in a "willful or knowing pattern

of deceit, unfair and deceptive acts and practices, and a

deceitful course of conduct." He further alleged that all of

the defendants violated 93A by attempting to extort Willis,

threatening Willis, and wrongfully inducing Willis to terminate
15

the P&S. Because the 93A claim arises from the private

relationship between Williamson and the trustees and condominium

unit owners, these are principally private transactions that are

not within the purview of a 93A claim. See Zimmerman v. Bogoff,

402 Mass. 650, 662 (1988).12 Accordingly, the complaint was

properly dismissed against all the defendants with the exception

of David and Gabriel. As David is neither a trustee nor

condominium unit owner, he may be subject to liability under

93A. Because Williamson alleged sufficient facts to survive a

motion to dismiss as it relates to David, dismissal of this

count of the complaint against David was error. See Begelfer v.

Najarian, 381 Mass. 177, 191 (1980) ("whether a private

individual's" action "takes place in a 'business context' must

be determined from the circumstances of each case"). Gabriel

might also be liable for the 93A claim to the extent that he was

not acting as a trustee. Put differently, being a trustee does

not protect Gabriel or anyone else from acts undertaken in a

different capacity. Although we express no opinion on the truth

of the allegations or the strength of these claims, at this

The defendants' reliance on L.B. Corp. v. Schweitzer-
12

Mauduit Int'l, Inc., 121 F. Supp. 2d 147 (D. Mass. 2000), is
misplaced as there the issue was between abutting landowners who
operated businesses. By contrast here, the parties are
condominium owners or business owners who are allegedly blocking
competition from another business within a commercial
condominium.
16

stage of the proceedings, dismissal of this count of the

complaint against Gabriel was error. Cf. id. (record on summary

judgment sufficient to determine defendants' actions did not

take place in business context).

d. Breach of fiduciary duty and waste, mismanagement, and

misappropriation of trust assets. Williamson, in his capacity

as trustee, asserted claims against Tamar, Gabriel, and

Stephanie, in their roles as trustees, for breach of fiduciary

duty and waste, mismanagement, and misappropriation of trust

assets. Trustees of a condominium association like Tamar,

Gabriel, and Stephanie, owe a fiduciary duty to the association.

See Berish v. Bornstein, 437 Mass. 252, 269 n.29 (2002).

Trustees, however, do not owe a fiduciary duty to individual

condominium unit owners. See Office One, Inc., 437 Mass. at

125. The defendants assert that the complaint used only

"labels" and "conclusions," and failed to allege harm to the

condominium trust separate and apart from the harm to

Williamson.13 The judge dismissed these claims with prejudice

without taking action on Williamson's motion to amend the

complaint and denying his motion for reconsideration without

taking action on Williamson's renewed motion for leave to amend.

Williamson alleges that Willis offered to pay the
13

defendants' condominium fees for the next four years but loss of
that offer is not a waste of condominium assets -- the trust is
owed that money regardless of who pays it.
17

Williamson contends that the judge abused his discretion. We

agree.

We review the denial of a motion to amend the complaint for

abuse of discretion and note that leave to amend should be

"freely given when justice so requires." Tocci v. Tocci, 490

Mass. 1, 24 (2022). Leave to amend may be denied if the motion

was "unduly delayed or the amendment would be futile." Id.,

citing Doull v. Foster, 487 Mass. 1, 22 (2021). The judge made

no findings regarding delay or futility. Nor did the judge make

findings as to the new evidence that Williamson alleged that he

uncovered since he filed the original complaint, as set forth in

his motion for reconsideration. While it would have been better

practice for Williamson to file a proposed amended complaint

along with his motion to amend, Williamson's motion for

reconsideration described the proposed amendment in enough

detail to meet the notice pleading requirement. Compare Nett v.

Bellucci, 437 Mass. 630, 645-646 (2002) (memorandum that

described proposed additional claim without proposed amended

complaint attached sufficed for purposes of motion to amend)

with Johnston v. Box, 453 Mass. 569, 582 (2009) (two-sentence

footnote in opposition memoranda to motion to dismiss did not

"adequately describe the contemplated amendment in order for

[judge] to determine the merits of the motion") Because the

proposed amendment described in the motion for reconsideration
18

included factual allegations adequate to survive a motion to

dismiss,14 and the judge did not rule otherwise, it was an abuse

of discretion to dismiss these claims.

2. Declaratory relief. Williamson's complaint sought ten

declarations on an assortment of topics, as described infra, all

of which the judge dismissed with prejudice. "[W]here a party

moves to dismiss a properly brought declaratory judgment claim

under rule 12 (b) (6) and where the judge concludes that the

facts alleged in the complaint fail to state a claim upon which

relief can be granted, the judge has the option of dismissing

the claim or of declaring that, based on the facts alleged in

the complaint, the plaintiff is not entitled to the declaratory

relief sought." Buffalo-Water 1, LLC, 481 Mass. at 17-18. With

this principle in mind, we conclude that the declarations

related to the alleged tortious interference, civil conspiracy,

breach of fiduciary duty, and waste, mismanagement, and

misappropriation claims were improperly dismissed. We further

conclude that all declarations related to the 93A claims were

14The proposed additional allegations included evidence
from the attorney who drafted the noncompete clause about the
intent of the language, evidence that David interfered with the
proposed sales in order to keep the unit price artificially low
in order to purchase the unit himself, and that David and
Gabriel worked together to negotiate a transfer of the trust
interests so that they could obtain a controlling interest in
the trust.
19

properly dismissed as to all defendants with the exception of

David and Gabriel.15

Williamson sought a declaration that the noncompete clause

was unenforceable, an unreasonable restraint on alienation

facially and as applied, the trustee's assent was not necessary,

and it was inapplicable to the proposed buyers. Relatedly,

Williamson also sought declarations that the defendants' conduct

damaged the value of his unit, and unreasonably interfered with

his ability to sell the unit. We conclude that Williamson

"properly brought" a claim for declaratory relief as he has

demonstrated that an actual controversy exists as to the

application of the noncompete clause to the proposed

restaurants, and specifically, whether they "substantially

compete" with the current restaurants at that location, and its

resultant impact on Williamson. See Buffalo-Water 1, LLC, 481

Mass. at 18. If the claim was "properly brought," the judge

must then determine whether Williamson alleged facts, which if

true, "state a claim for declaratory relief that can survive a

. . . motion to dismiss." Id. The judge did not reach this

15The role of trustee cannot shield activity undertaken by
the defendants if they were acting in a non-trustee capacity.
Any such allegations could be repleaded by Williamson to make
clear whether he alleges that the defendants were acting as
trustees or not.
20

second part of the analysis as he prematurely dismissed these

claims. This was error.

3. Conclusion. So much of the judgment that dismissed the

claims for breach of fiduciary duty (Count I), waste,

mismanagement, and misappropriation of trust assets (Count II),

tortious interference (Count III) and civil conspiracy (Count

IV), and the 93A claim (Count V) against David and Gabriel, and

the claims for declaratory judgment are vacated (Count VI). We

affirm the remainder of the judgment.

So ordered.