RONDOUT GROUP ADVISORS, LLC, & Another v. FRESH AMERICAN, 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

25-P-261

RONDOUT GROUP ADVISORS, LLC, & another1

vs.

FRESH AMERICAN, LLC, & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This contract dispute arose after the defendants, including

an accomplished interior designer, hired the plaintiffs to

advise them on the acquisition of a company that sold the

interior designer's goods through various brands. The deal

closed, but not without acrimony; afterward, the defendants

alleged various contractual breaches by the plaintiffs and

refused to pay the plaintiffs their contracted-for fees. The

plaintiffs claimed breach and asserted their right to payment,

and a judge of the Superior Court allowed in part and denied in

part cross motions for summary judgment. Because there are

1 Dalkeith Group, LLC.

2 PCH, Inc., Christian L. Selke, and James B. Crane, II.
genuine disputes of material fact, we vacate the judgment on the

plaintiffs' G. L. c. 93A claim, remand the case to the Superior

Court for proceedings consistent with this decision on that

claim, and otherwise affirm the judgment.

Background. "We summarize the undisputed facts drawn from

the summary judgment record; to the extent the record includes

disputed evidence, we consider that evidence in the light most

favorable to [the nonmoving party]." Cesso v. Todd, 92 Mass.

App. Ct. 131, 132 (2017), citing Ritter v. Massachusetts Cas.

Ins. Co., 439 Mass. 214, 215 (2003).

The plaintiffs Rondout Group Advisors, LLC (Rondout) and

Dalkeith Group, LLC (Dalkeith) (collectively, the plaintiffs)

were hired by the defendants Christian Selke, James B. Crane II,

and PCH, Inc. (PCH) in April 2019 to aid PCH in acquiring a

majority stake in the defendant company Fresh American, LLC

(Fresh American) (collectively, the defendants). Rondout and

Dalkeith were contracted to advise on the transaction and help

secure third-party financing. The deal closed on December 27,

2019.

However, beginning in early December 2019, the defendants

began asserting that the plaintiffs had committed a breach of

their contracts and asked to reduce the plaintiffs' fees. We

provide details of these discussions as relevant below. The

plaintiffs subsequently filed suit in Superior Court, alleging

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breach of contract, breach of the covenant of good faith and

fair dealing, violation of G. L. c. 93A, § 11, and intentional

interference with contractual relations. After the case was

filed, the defendants paid, and the plaintiffs accepted, the

full amount of compensation the plaintiffs claimed they were due

under the respective contracts, save attorney's fees.

The parties filed cross motions for summary judgment on all

claims. The motion judge allowed summary judgment for the

plaintiffs on their G. L. c. 93A claim and for the defendants on

the remaining claims. The parties cross-appealed. The

defendants assert that the motion judge erred in allowing

summary judgment on the c. 93A claim because she failed to

consider the evidence on certain issues, improperly viewed the

evidence in the light most favorable to the plaintiffs on

others, and impermissibly made factual findings on disputed

evidence. The defendants also maintain that the judge erred in

denying a motion to amend the complaint to add Robert Garcia

(then Rondout's managing director) as a party and assert

counterclaims against him. For their part, the plaintiffs

contend the motion judge erred in her assessment of the

applicable postjudgment interest amount and her calculation of

attorney's fees. They also maintain that their breach of

contract claims were improperly dismissed.

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Discussion. Because we conclude that summary judgment was

improvidently allowed for the plaintiffs on their G. L. c. 93A

claim, we begin there. Next, we address the allowance of

summary judgment for the defendants on the contract claims.

Finally, we turn to the denial of the defendants' motion to

amend.

1. Summary judgment. "We review the disposition of a

motion for summary judgment de novo to determine whether all

material facts have been established such that the moving party

is entitled to judgment as a matter of law" (citation omitted).

American Int'l Ins. Co. v. Robert Seuffer GMBH & Co. KG, 468

Mass. 109, 113, cert. denied, 574 U.S. 1061 (2014). "The

allowance of a motion for summary judgment 'is appropriate where

there are no genuine issues of material fact in dispute and the

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

Williams v. Board of Appeals of Norwell, 490 Mass. 684, 689

(2022), quoting Barron Chiropractic & Rehabilitation, P.C. v.

Norfolk & Dedham Group, 469 Mass. 800, 804 (2014) (Barron).

"[A] dispute about a material fact is 'genuine' when 'the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party,' and a fact is 'material' when it

'might affect the outcome of the suit under the governing law.'"

Dennis v. Kaskel, 79 Mass. App. Ct. 736, 740-741 (2011), quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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"[T]he moving party had 'the burden of demonstrating

affirmatively the absence of a genuine issue of material fact on

every relevant issue, regardless of who would have the burden on

that issue at trial.'" Khalsa v. Sovereign Bank, N.A., 88 Mass.

App. Ct. 824, 829 (2016), quoting Arcidi v. National Ass'n of

Gov't Employees, Inc., 447 Mass. 616, 619 (2006). Crucially, "a

judge does not engage in fact finding when ruling on cross

motions for summary judgment." 81 Spooner Rd., LLC v. Zoning

Bd. of Appeals of Brookline, 461 Mass. 692, 699 (2012). Rather,

"[w]hen parties have filed cross motions for summary judgment,

'we view the evidence in the light most favorable to the party

against whom summary judgment was entered.'" Berry v. Commerce

Ins. Co., 488 Mass. 633, 636 (2021), quoting Conservation Comm'n

of Norton v. Pesa, 488 Mass. 325, 330 (2021).

a. The G. L. c. 93A, § 11 claim. A commercial G. L.

c. 93A claim, like the one brought by the plaintiffs, rests on

"the use of 'coercive or extortionate tactics' by one business

to 'extract undeserved concessions from other business

entities.'" H1 Lincoln, Inc. v. South Washington Street, LLC,

489 Mass. 1, 15 (2022), quoting Renovator's Supply, Inc. v.

Sovereign Bank, 72 Mass. App. Ct. 419, 430 (2008). "One form

that commercial extortion takes is the use of breaches of

contract, or threatened breaches, as leverage to extract

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additional benefits not covered by the contract." H1 Lincoln,

supra at 15.

As the plaintiffs see it, that is what happened here. They

maintain that the undisputed evidence demonstrated that the

defendants had threatened to cancel the deal on the eve of

closing as leverage to extract a lower contract price for the

plaintiffs' work. The plaintiffs assert that, as a matter of

law, this was commercial extortion in violation of G. L. c. 93A.

But viewing the evidence, as we must, "in the light most

favorable to the party against whom summary judgment entered,"

Conservation Comm'n of Norton, 488 Mass. at 330, we disagree.

The defendants respond that it was the plaintiffs' actions

that constituted a breach of the contracts, rather than an

effort to extract undeserved concessions, that provoked their

efforts to reduce the plaintiffs' compensation. For example,

the defendants contend that Garcia and the plaintiffs schemed to

limit Selke's postclosing compensation and reduce her control of

the company, while adding to Garcia's control -- all against the

defendants' best interests and in violation of the contracts.

The defendants allege further that Garcia and the plaintiffs

violated the contracts by refusing to respond to their messages

during the critical period leading up to the anticipated closing

date. The defendants also point to evidence that the plaintiffs

lied to them about the reason a key investor backed out of the

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transaction. According to Selke, the defendants claimed the

investor wanted Garcia to control the resulting board of

directors, when, in reality, Garcia had lied to the investor and

said Selke had gotten "cold feet" after she terminated the

Rondout contract. Finally, the defendants assert that Garcia

and the plaintiffs failed to make an investment in the resulting

company as they had promised. Accordingly, the defendants say,

their preclosing communications were not "threats," but instead

an appropriate response to Garcia and the plaintiffs' conduct.

These contentions are supported by record evidence and

raise sufficient disputes of material fact to defeat summary

judgment. The plaintiffs urge us to adopt the view that, even

if true, these supposed breaches did not relieve the defendants

of their contractual obligation to pay the plaintiffs. In

essence, the plaintiffs assert that the only "material" term of

the agreement was whether a deal closed. In the absence of

evidence showing that the closing was the only term of the

contracts the parties considered material, we are unpersuaded.

Because there is nothing in the record -- read in the light most

favorable to the defendants -- that rebuts the defendants'

contentions, summary judgment was not appropriate on this

record. See Berry, 488 Mass. at 636. Because judgment for the

plaintiffs on the G. L. c. 93A claim was improper, the judgment

awarding the plaintiffs their attorney's fees and costs is

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vacated. We express no opinion on the amount of fees and costs

awarded.

For the same reasons detailed above, the denial of the

defendants' motion for summary judgment on the c. 93A claim was

proper. Viewing the record in the light most favorable to the

plaintiffs, there are disputed material facts as to the context

and dealings surrounding the defendants' failure to pay the

defendants the fees owed under the contracts at the time of the

closing.

b. The contract claims. The plaintiffs assert that the

Superior Court judge improperly allowed summary judgment for the

defendants as to the breach of contract and breach of the

covenant of good faith and fair dealing claims. We disagree.

"Under common-law principles of contract, . . . a plaintiff

may reject a defendant's disputed tender of payment, made after

the date set for payment has expired, and litigate its breach of

contract claim to completion." Barron, 469 Mass. at 805.

However, "a plaintiff also is entitled to accept and thereby

validate an otherwise improper late tender. Such acceptance

removes the 'foundation of [a potential contract] suit' and

necessitates the dismissal of a suit already commenced." Id. at

807 n. 11, quoting Davis v. Harrington, 160 Mass. 278, 280

(1894).

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Such is the case here. In September 2021, the plaintiffs

accepted payment of $2.1 million from the defendants, which

represented the entirety of the disputed fees. The plaintiffs'

assertion that they continued to dispute liability is nugatory;

as a matter of law, their acceptance of the late tender removed

the basis for their contract claims. Barron, 469 Mass. at 807

n.11. Their position that the $2.1 million did not represent

the full tender because it did not include accrued statutory

interest is similarly unpersuasive; statutory interest is not

required for a full tender. See Barron, supra at 809

(acceptance of full tender bars recovery of judgment that would

entitle plaintiff to statutory interest and attorney's fees);

Paul Revere Trust Co. v. Castle, 231 Mass. 129, 132 (1918)

("when the plaintiff accepted the principal in full payment the

right to recover the interest . . . was extinguished"); Davis,

160 Mass. at 280 (plaintiff who accepted tender made after suit

commenced not entitled to interest and costs).

Because a claim for breach of the covenant of good faith

and fair dealing is a suit on the underlying contract, Anthony's

Pier Four, Inc. v. HBC Associates, 411 Mass. 451, 471-472

(1991), the "ordinary contract principles" from Barron apply

with equal force. See Barron, 496 Mass. at 805-806. The

plaintiffs accepted the full tender they were due under the

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contracts, negating any basis in contract for suit. See id. at

807 n.11.

2. Denial of the defendants' motion to amend. We review

the denial of a motion to amend for abuse of discretion. Larkin

v. Dedham Med. Assocs., Inc., 93 Mass. App. Ct. 661, 665 (2018).

Leave to amend a pleading "shall be freely given when justice so

requires." Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974).

"Although leave to amend is within the discretion of the judge,

leave should be granted unless there appears some good reason

for denying the motion." Goulet v. Whitin Mach. Works, 399

Mass. 547, 549 (1987). Such reasons include undue delay, bad

faith, imminence of trial, prejudice to another party, status of

discovery, and similarity of claims. See Sullivan v. Iantosca,

409 Mass. 796, 800-801 (1991), citing Goulet, supra at 550-551.

The judge denied the defendants' motion for leave to assert

counterclaims "as moot, given the Order on Summary Judgment."

Because we vacate the allowance of summary judgment on the G. L.

c. 93A claim, we vacate the order denying the defendants' motion

to amend, permitting the motion judge to reassess and weigh the

appropriate factors given the new posture.

Conclusion. The allowance of summary judgment on the

plaintiffs' G. L. c. 93A claim is vacated, as is the award of

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attorney's fees and costs to the plaintiffs.3 The order denying

the defendants' motion to amend is also vacated. The judgment

is otherwise affirmed, and the case is remanded for proceedings

consistent with this decision.

So ordered.

By the Court (Desmond,
Hershfang & Brennan, JJ.4),

Clerk

Entered: June 9, 2026.

3 Accordingly, the plaintiffs' request for appellate
attorney's fees is denied.

4 The panelists are listed in order of seniority.

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