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14-P-1946                                             Appeals Court

 JNM HOSPITALITY, INC.      vs.   EDWIN McDAID & others,1 trustees.2


                             No. 14-P-1946.

         Norfolk.    January 19, 2016. - September 27, 2016.

               Present:   Grainger, Rubin, & Milkey, JJ.


Condominiums, Parking, Common area. Real Property, Condominium,
     Lease. Landlord and Tenant, Execution of lease, Parking.
     Contract, Lease of real estate, Performance and breach,
     Interference with contractual relations.



     Civil action commenced in the Superior Court Department on
January 19, 2012.

     A motion for summary judgment was heard by Paul D. Wilson,
J., and entry of separate and final judgment was ordered by him.


     William E. Gens for the plaintiff.
     Henry A. Goodman for the defendants.


     GRAINGER, J.    This is an appeal from the dismissal of a

claim brought by the commercial tenant of a condominium unit


     1
       Erica Crossen, Marie Fallon, David Rattray, and Carmine
Aquilino.
     2
         Of The Village at Forge Pond Condominium Trust.
                                                                       2


owner against the condominium trustees.     The plaintiff, JNM

Hospitality, Inc. (JNM), appeals from the summary judgment in

favor of the defendant trustees of The Village at Forge Pond

Condominium Trust (collectively the trust) ordered by a judge of

the Superior Court.    JNM asserts that the trust's execution of a

license agreement allowing employees of an abutting United

States Postal Service (USPS) facility to use spaces in the

vehicle parking lot of the condominium where JNM's restaurant

was located constituted intentional interference in JNM's

contract with its landlord.    We disagree, and affirm the

judgment.3

     Background.    For purposes of our consideration of the

allowance of summary judgment, the facts are not in dispute.

JNM operated a restaurant and bar on premises leased from Canton

Viaduct, LLC, as assignee of the owner of two commercial units

in The Village at Forge Pond Condominium, a mixed-use

condominium complex in Canton.    The trust is the condominium's

governing entity.     See G. L. c. 183A, §§ 8(i), 10.   At issue are

the provisions of JNM's lease governing the ability to provide

vehicle parking spaces to its customers.




     3
       The dispositions of other claims by JNM in its complaint,
against the landlord, its principal, and one of the trustees in
her individual capacity, are not before us in this review of the
separate summary judgment.
                                                                   3


     The lease provisions relating to the number and location of

parking spaces are both unclear and, due to handwritten

revisions,4 difficult to decipher.   The parties dedicate

significant energy and many strained arguments to the meaning of

lease provisions relating to this issue, with particular

emphasis on so-called nonexclusive parking, i.e., spaces not

reserved for any particular person or entity.

     For purposes of reviewing factual allegations in the motion

for summary judgment we adopt, as the law requires, the

nonmovant plaintiff's wording of the contract.5   See Juliano v.

Simpson, 461 Mass. 527, 529-530 (2012), quoting from Augat, Inc.

v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).   Thus, we

assume that the lease contemplated not only eleven parking

spaces dedicated exclusively to JNM's customers,6 but also JNM's

right to allow its customers to park in other nonexclusive

spaces, some sixty-six in number, available to visitors, owners,


     4
       The parties struck phrases from the printed document,
initialed changes, and substituted language that in one instance
the motion judge considered "difficult to make out."
     5
       The language in the contract from which JNM derives the
right to make nonexclusive spaces available to its customers is
the implication contained in an eight-word phrase that precedes
the explicit grant of the eleven exclusive spaces:
"Notwithstanding the common use of the parking facilities,
Tenant shall have the exclusive use of the eleven (11) parking
spaces . . . " (emphasis supplied).
     6
       There is no dispute that the landlord had the requisite
authority over the eleven exclusive spaces.
                                                                   4


and residents of the condominium on a first-come, first-served

basis.7

     We also accept JNM's assertion that the license agreement

allowing USPS employees to use a maximum of fifteen8 spaces in

the condominium property's parking lot made available fifty-one

rather than sixty-six nonexclusive spaces to JNM's customers.9

Additional facts appear below as they pertain to the issues.

     Discussion.   A claim for intentional interference with

contractual relations requires proof of four elements:   (1) a

contract between the plaintiff and a third party, (2) the

defendant's purposeful inducement of the third party to breach

the contract in whole or in part, (3) the interference must be

not only intentional, but also improper in motive or means of

accomplishment, and (4) resulting harm to the plaintiff.    G.S.

Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272


     7
       The motion judge did not resolve all the parties' factual
disputes over the contractual language in JNM's favor. However,
we do so as we review the grant of summary judgment de novo.
See Miller v. Cotter, 448 Mass. 671, 676 (2007).
     8
       Only twelve of these spaces are located in the parking
lot; three are located on an adjoining unimproved road.
However, for the purposes of summary judgment we use the larger
number of fifteen as the number of spaces licensed to USPS.
     9
       There are ninety-one total spaces, eight of which are in
private garages and six of which are located down an unimproved
road, not easily accessed. The record reveals fifty-one
nonexclusive spaces after deducting from the total number of
spaces the private garage spaces, the unimproved road spaces,
the spaces licensed to USPS, and JNM's exclusive spaces.
                                                                     5


(1991), citing United Truck Leasing Corp. v. Geltman, 406 Mass.

811, 812-817 (1990).

     1.   Contract breach.   The first element, the existence of a

contract, is undisputed.     On this record, however, JNM has not

raised a genuine issue with respect to the second element, an

induced breach of the lease or interference with the landlord's

performance of its obligations.

     The lease contains no guarantee, or even an inference, that

the nonexclusive spaces will be available at any particular time

or in any specified number; viewed in the light most favorable

to JNM, the lease allows restaurant customers to compete with

other visitors, residents and unit owners for available

nonexclusive spaces in the lot.    The lease contains no provision

that precludes another unit owner or the trust from providing

similar access to nonexclusive spaces to other tenants, or to

third parties.10   The lack of a guarantee that these spaces, or

any of them, will be available at a given time does not render

potential access under the contract meaningless, but it most

certainly defeats a claim of interference when other individuals

use what the parties have agreed explicitly are "nonexclusive"




     10
       There is no basis to conclude that other unit owners or
the trust would be bound by such a provision even had it been
included in JNM's lease.
                                                                     6


spaces.11   In this context it is notable that JNM's entire claim

relies on an eight-word phrase, "[n]otwithstanding the common

use of the parking facilities," presented as a preamble to

introduce the lease provision granting eleven spaces for the

exclusive use of restaurant customers.

     JNM has conflated conduct by a stranger to the contract,

conduct that JNM claims has frustrated its own unilateral

expectation of possible use of a greater number of nonexclusive

spaces than became available in the condominium parking lot,

with conduct that "interfere[d] with the [other contracting]

party's . . . performance."   Harrison v. NetCentric Corp., 433

Mass. 465, 478 n.15 (2001), quoting from Restatement (Second) of

Torts § 766 comment k, at 12 (1979).     It is undisputed that the


     11
       JNM's attempts to reverse the allowance of summary
judgment on a separate basis, namely interference with the use
of the eleven exclusive spaces particularly identified in the
lease, do not posit a genuine issue or rise to the level of
appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367
Mass. 921 (1975). These attempts rely on unsworn statements --
that postal employees parked throughout the lot (i.e., in
violation of the license granted by the trust) or that
condominium residents (not postal employees) parked in spaces
reserved for "businesses," and did so when those businesses were
not open -- and are unavailing under the strictures of
Mass.R.Civ.P. 56, 365 Mass. 824 (1974).

     Moreover, JNM's submission of sworn testimony was to the
contrary: According to JNM's president, "It was essential to
[JNM's] business operation to have the shared use of the common
parking facilities in addition to the exclusive [sic] of
[eleven] spaces. The shared use of the common facilities is
more important than the exclusive use of eleven (11) spaces."
(Emphasis original.)
                                                                     7


landlord itself (Canton Viaduct, LLC) engaged in neither an act

nor an omission, and it is equally clear that the USPS license

did not prevent the landlord from performing its contractual

obligations.

     2.   Remaining elements.   As stated, the failure to raise a

genuine issue with respect to the element of a breach is fatal

to JNM's case.   While it is therefore unnecessary to address the

remaining elements, the record provides additional independent

bases for the allowance of summary judgment.

     a.   Improper means or motive.   The record provides only two

possible motives for the trust's license agreement with USPS:

(1) containment of previous unauthorized use of the lot by USPS

employees, and (2) generation of revenue for the condominium.12

Neither of these satisfies the legal standard to establish an

improper motive.   See Pembroke Country Club, Inc. v. Regency

Sav. Bank, F.S.B., 62 Mass. App. Ct. 34, 39 (2004).    With

respect to improper means, JNM's reliance on an alleged by-law

violation, unaccompanied by any actual reprehensible conduct,

presents no genuine dispute under our law, KACT, Inc. v. Rubin,




     12
       JNM suggests that complaints or "harassment" by
unidentified third parties (asserted, without any evidence, to
be unnamed condominium residents) can satisfy the legal element
of improper motive on the part of the actual defendants, the
trustees, in executing the license agreement. This too fails to
present a genuine justiciable dispute of material fact.
                                                                    8


62 Mass. App. Ct. 689, 699-700 (2004), and merely trivializes

the type of conduct that is intended to be actionable.

     b.    Resulting harm.   The record reveals undisputed use of

the parking spaces by USPS employees for the previous decade,13

rendering any harm to JNM from the license, which simply

formalized an existing situation, at best "speculative or

conjectural."    Chemawa Country Golf, Inc. v. Wnuk, 9 Mass. App.

Ct. 506, 510 (1980).

                                      Judgment affirmed.14




     13
       JNM has not disputed evidence presented by the trust that
JNM was not only aware of the incursion by USPS employees, but
that JNM's owner complained openly and regularly about this
preexisting problem for many years before the USPS license
agreement was executed.
     14
          The trust's request for appellate attorney's fees is
denied.
     MILKEY, J. (concurring in part).   I agree that JNM

Hospitality, Inc. (the restaurant), cannot prevail on the

intentional interference with contractual relations claim it

brought against the trustees of The Village at Forge Pond

Condominium Trust (the trust).   However, I arrive at that

conclusion by a narrower path.

     The special permit under which the condominium complex was

built required that there be ninety-one parking spaces for the

residents of the residential units and the customers and staff

of the commercial units (one space per residential bedroom, plus

one space per 250 square feet of commercial space).    Pursuant to

that formula, the commercial units occupied by the restaurant

accounted for eleven of the mandated ninety-one parking spaces.

Consistent with that figure, the owner of the two restaurant

units claimed an entitlement to eleven parking spaces adjacent

to its units,1 and executed a lease purporting to give the

restaurant exclusive use of those spaces.   Those eleven spaces

were then marked with signs designating them for the

restaurant's exclusive use.2


     1
       The owner of the units that executed the lease was Forge
Pond, LLC. Forge Pond, LLC, has since assigned its rights to
Canton Viaduct, LLC, a defendant in the broader case brought by
the restaurant.
     2
       The parties to this appeal have taken the position that
the restaurant had valid exclusive rights to these eleven
spaces. For purposes of this appeal, I do as well.
                                                                   2


     At least for purposes of this appeal, I accept the

restaurant's position that the lease did not prohibit it from

using spaces elsewhere in the parking lot if they were

available.   This is evidenced by the fact that the parties to

the lease crossed out a draft provision that expressly would

have limited the restaurant to using only its dedicated eleven

spaces.   However, although the lease does not appear to have

prohibited the restaurant from making use of other available

spaces, neither did it provide the restaurant any enforceable

entitlement to such spaces.   Indeed, had the landlord purported

to give the restaurant an entitlement to more than its pro rata

share, it would have been giving away parking rights that it did

not possess.   Under these circumstances, the trust's licensing

to the United States Postal Service the right to use fifteen

parking spaces other than the restaurant's dedicated eleven

could not have caused the landlord to violate the lease.3

     I therefore concur with so much of part 1 of Justice

Grainger's opinion as concludes that the breach of contract

element of the interference claim was not met where, under the

circumstances of this case, the contract provided no enforceable

     3
       None of this is to say that the trust's decision to
license parking to the United States Postal Service was well
advised, especially where it reduced available parking at the
complex below that required by the special permit. However, the
only legal issue before us is whether the decision rendered the
trust liable to the restaurant on a particular cause of action
(intentional interference with the restaurant's lease).
                                                                   3


entitlement to any of the nonexclusive parking spaces.4     I do not

reach any other ground for affirmance.




     4
       I also agree that the trust should not recover its
appellate attorney's fees.
    RUBIN, J. (dissenting).      Viewing the evidence in the light

most favorable to the plaintiff, which operated a restaurant in

commercial space in The Village at Ford Pond Condominium, the

defendant trustees of The Village at Forge Pond Condominium

Trust (trust) knowingly made it impossible for the plaintiff's

landlord to perform its contractual obligation to provide a

certain number of nonexclusive use parking spaces to the

plaintiff for use of its patrons.    The majority holds that

reducing the number of nonexclusive use spaces by assigning them

for a third party's exclusive use -- excluding patrons from

using them -- was not a breach of the lease.    Because the

majority's affirmance on this ground rests upon a reading of the

contract between the plaintiff and its landlord that renders an

important bargained-for provision concerning parking available

to the restaurant's customers essentially meaningless -- a

reading not advanced even by the trust -- it is incorrect.

Because the majority improperly denies the plaintiff its day in

court, I respectfully dissent.

    Background.   Viewing the summary judgment record in the

light most favorable to the nonmovant plaintiff, a finder of

fact could find the following:    The plaintiff JNM Hospitality,

Inc. (JNM), operated Centerfields Bar and Grill (Centerfields)

in space it leased in The Village at Forge Pond Condominium in

Canton, which contains both residences and 8,000 square feet of
                                                                    2


commercial space.   JNM's landlord, Canton Viaduct, LLC (Canton

Viaduct), was the assignee of the owner of two of the five

commercial units in the condominium, which were combined to form

the premises leased to JNM.

    Adequate parking was essential to the success of the

restaurant.   According to a decision of the zoning board of

appeals of Canton dated June 14, 2001, the condominium was

required to have one parking space for each of the fifty-nine

residential units as well as one parking space for each 250

square feet of the 8,000 total square feet of commercial space,

or thirty-two additional spaces, for a total of ninety-one

parking spaces.   The condominium had these spaces.

    Of the ninety-one spaces, Canton Viaduct had eleven parking

spaces immediately in front of the entrance to the restaurant,

designated for the exclusive use of Canton Viaduct's tenant.

Another eight of the spaces were owned appurtenant to specific

units and were designated for the exclusive use of those units.

Six spaces were at the end of a dirt road and were unusable.

    It thus appears that there were sixty-six remaining usable

spaces at the condominium that were not designated for any

owner's or tenant's exclusive use.   Under the master deed of the

condominium, unit owners, including the landlord, were entitled
                                                                      3


to the nonexclusive use of these common parking spaces.1      These

shared or common parking spaces were available for the use of

condominium owners on a first-come, first-served basis.

     a.    The lease.   JNM and Canton Viaduct entered into a lease

agreement2 that addressed, inter alia, parking spaces.    A draft

lease was sent by Canton Viaduct to counsel for JNM.     That

counsel made handwritten changes on the documents.    Those

changes were initialed by both parties and the contract was

signed.

     Paragraph 2 of the agreement includes language related to

parking.    It provides that "[n]otwithstanding the common use of

the parking facilities, Tenant shall have the exclusive use of

the eleven (11) parking spaces marked on Exhibit A [to the

lease]. . . .   Based on 2,600 square feet, the number of spaces



     1
       I say it "appears" there were sixty-six usable common
parking spaces because there is some confusing evidence
suggesting that there may have been some "residents only" spaces
that may not properly be counted as common spaces to which JNM
and its customers had access. The precise number of shared or
common parking spaces is immaterial, since this case is about
the diminution in the number of spaces rather than the absolute
number available.
     2
       The lease document lists the landlord as "Forge Pond,
LLC." The parties, however, have agreed that JNM is the tenant
of Canton Viaduct under this lease. JNM alleges in the
complaint, and the trust agrees in its brief, that the lease was
assigned by Forge Pond, LLC, to Canton Viaduct. Neither party
argues that this assignment is material to the suit. Thus, for
the purposes of this opinion, I treat JNM and Canton Viaduct as
though they were the original parties to the lease.
                                                                   4


to be provided is eleven (11) spaces as required by Canton

Zoning Regulations."3

     The parties disagree as to whether the first clause of this

provision conveyed to JNM the landlord's right to the

nonexclusive use of the common parking spaces that it held as

part of its ownership of the leased condominium units, or only

the eleven exclusive-use spaces.   It does the former -- and I

note that the motion judge's grant of summary judgment was based

entirely on his erroneous conclusion to the contrary.

     Immediately after what is now the concluding clause of the

parking provision, "Tenant shall have the exclusive use of the

eleven (11) parking spaces marked on Exhibit A," the initial

draft included another phrase that was struck by counsel for

JNM, a deletion initialed by both parties.   It read, "but shall

have no right to use of any other parking spaces located on the

premises and landlord shall provide Tenant with one space per

250 square feet (excluding basement space)."   Had this language

     3
       Paragraph 8 of the agreement states, "Tenant's use and
operation may under no circumstances interfere with the quiet
use and enjoyment of other tenants in the buildings and Tenant
specifically agrees . . . that employees and patrons shall not
park vehicles in any area of the property." Read literally,
this would mean that JNM was not entitled to use any parking
spaces as part of the lease agreement, but was expressly
forbidden from doing so. The trust, however, concedes that the
eleven exclusive spaces referred to in paragraph 2 were
bargained for, and presses no argument that paragraph 8 means
that JNM was not entitled to use whatever parking was provided
for by paragraph 2. Consequently, I need not address paragraph
8 further.
                                                                    5


not been struck, the contract would have meant that JNM had the

right to use only the eleven exclusive-use spaces.    That it was

struck indicates the parties intended that JNM would be able to

use the nonexclusive spaces.

    The judge below reached the opposite conclusion by

accepting the trust's substitution, in its rendering of the

deleted phrase, of the word "[the]," which it placed in

brackets, for the word "no."   In the trust's rendition, the

crossed-out phrase read "shall have [the] right" to use common

parking spaces, rather than "shall have no right" to use the

common spaces.

    The judge recognized that the word in the stricken phrase

is not "the."    He wrote, "in the copy of the lease in the

summary judgment record, it is difficult to make out the word

for which the [trust] has substituted the word 'the.'"

    We have the same copy of the lease before us.    To be sure,

there are artifacts of photocopying that partially obscure the

word.   Nonetheless, the judge seemed to recognize what is

obviously true from examining the document, it is a two-letter

word.   The judge suggested that the word might be "an," but that

is obviously incorrect and, as the judge observed, that would

also be "ungrammatical."   The judge further observed that the

original word "might also be 'no,' which would rather

dramatically change the meaning of that portion of the stricken
                                                                   6


language."    The judge, however, concluded that the word "no"

"would be inconsistent with the text of the provision as a

whole."

    An examination of the document makes clear, however, that

the word is, fairly obviously, "no."    It certainly does

dramatically change the meaning of the stricken language from

what the judge read it to mean.

    But it is not inconsistent with the text of the provision

as a whole.   Indeed, it essentially resolves any ambiguity in

paragraph 2, and makes clear that the meaning of the text of the

provision as a whole is the opposite of what the judge

concluded.

    The judge wrote, "I accept the substitution of the word

'the' as accurate, because [p]laintiff did not disagree with it

in its own brief, nor did [p]laintiff object when counsel for

the [trust] used the word 'the' when he read that stricken

language at oral argument.    Counsel for Canton Viaduct, the

other party to the [l]ease, was also present at oral argument,

and similarly made no comment when counsel for the [trust] used

the word 'the.'"

    A judge may not accept a word as "accurate" when it

obviously is not, at least when it comes to the reading of a

legally operative text.    Indeed, even if a party could waive a

claim about what in fact the words in a document in the record
                                                                      7


are, there was nothing rising to the level of waiver (for

example, a failure to object to the admission of evidence) in

what JNM did.   The lease thus conveyed to JNM the landlord's

right to the nonexclusive use of the common parking spaces.

     b.   The USPS agreement.   Following the signing of the lease

agreement, the restaurant opened.   The restaurant operated

continually between March, 2003, and January 1, 2013, when it

closed down.

     The restaurant operated successfully for many years.     In

May, 2010,4 the trust entered into a license agreement with the

United States Postal Service (the USPS agreement), which

maintained a facility adjacent to the parking area of the

condominium.    The USPS agreement allowed USPS to park its

vehicles in fifteen of the nonexclusive use spaces.   In exchange

for this, USPS agreed to pay the trust $936 dollars per month.

One of the trust's reasons for entering into the USPS agreement

was to make money in order not to raise condominium fees.     There

was also evidence that certain unit owners harassed Centerfields

by, among other things, pouring buckets of water onto patrons

from a balcony above the restaurant's deck, videotaping patrons

from a window above the restaurant's entrance, and making

     4
       Although the text of the agreement states that it was
entered into on May 1, 2010, the last page, headed "Acceptance
by the Postal Service," was manually signed and dated December
14, 2010. However, the parties appear to agree that the trust
entered into the agreement with USPS "on or about May 1, 2010."
                                                                  8


repeated telephone calls to the restaurant threatening to call

the police about the noise.

    Business at Centerfields was steady until the USPS

agreement went into effect, when it declined sharply.     JNM

provided an affidavit from a former general manager of the

restaurant attesting to the fact that "[s]ince the [p]ost

[o]ffice has been allowed to park in the [c]ondominium lot, our

lunch trade and [e]arly [b]ird dinner trade has been reduced to

the point that it is almost completely gone.   The restaurant

used to do a thriving lunch and [e]arly [b]ird dinner business

and now the restaurant is nearly empty at those times."

    JNM also provided an affidavit from a former bartender

attesting to the fact that "[s]ince the post office employees

ha[d] been parking in the [c]ondominium parking lot" customers

had been complaining constantly about the lack of parking, and

the restaurant had lost sixty to seventy percent of its lunch

customers and seventy-five to eighty percent of its early bird

diners.   An affidavit from JNM's accountant stated that

"[d]uring 2010 and through 2012 the sales declined sharply and

steadily through the [three]-year period . . . .   [T]he

continued decrease in sales [was] not consistent with the last

[fourteen] years of operation."

    Viewing the summary judgment record in the light most

favorable to JNM, the USPS use of the spaces reduced
                                                                        9


dramatically the number of nonexclusive use spaces available to

JNM.    In addition, the placement of USPS trucks also blocked its

use of the eleven exclusive use parking spaces.     And, as a

consequence, JNM's business suffered and ultimately failed.

       Discussion.   "In an action for intentional interference

with contractual relations, the plaintiff must prove 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."     G.S. Enterprises, Inc. v.

Falmouth Marine, Inc., 410 Mass. 262, 272 (1991).     The second

prong may be satisfied not only by a showing that the defendant

induced the third party to break the contract, but by a showing

that its actions knowingly made it impossible for the third

party to perform its contract.     See Restatement (Second) of

Torts § 766 & comment h (1979); Cardone v. Boston Regional Med.

Center, Inc., 60 Mass. App. Ct. 179, 188-191 (2003) (reversing

grant of summary judgment on intentional interference claim and

holding that there was genuine issue of material fact whether

defendant used improper means when it knowingly violated

contract to compensate third party, which then breached its

contract to compensate plaintiff).     See also Skyhook Wireless,

Inc. v. Google Inc., 86 Mass. App. Ct. 611, 619 (2014) (second
                                                                  10


prong undisputedly satisfied when Google exercised rights under

its contract with Motorola to prevent Motorola from shipping

devices containing plaintiff's software, causing Motorola to

withdraw from its contract with plaintiff to include plaintiff's

software on its devices).

    a.     Did the trust's actions knowingly make it impossible

for the landlord to perform its contractual obligation with

respect to parking?    There is sufficient evidence in the summary

judgment record to support a finding that the trust's agreement

with USPS made it impossible for the landlord to perform its

obligation under the lease, and that, since the trust has not

argued that it did not know of the lease, that interference was

knowing.

    The motion judge concluded that although JNM had evidence

that could satisfy the first of the tort's elements, there was

insufficient evidence to satisfy the second.   The basis for this

conclusion was the motion judge's construction of the contract

reading it to be limited to providing only eleven exclusive use

parking spaces to JNM.    Without addressing the evidence that

even the use of these eleven spaces was compromised because of

the USPS agreement –- evidence that, the trust argues, by itself

might require reversal of summary judgment to the extent JNM's

claim relies on interference with its right to use those spaces

-- the judge concluded that, because JNM had no entitlement
                                                                    11


under the lease to use whatever common parking spaces were

available, JNM would be unable to show that the landlord was

unable to fulfil the terms of the lease because of the trust's

actions.

    Both the lead opinion and the concurrence take another

tack, concluding that because the spaces given to USPS by the

trust were for the "nonexclusive use" of the unit owners and

their lessees, the trust's action reducing the number of those

spaces did not interfere with Canton Viaduct's performance under

the contract.

    Not even the trust makes this argument, and for good

reason.    The linchpin of the majority's argument is that "[t]he

lease contains no provision that precludes . . . the trust from

providing similar access to nonexclusive spaces to . . . third

parties."   Ante at     .   Under this reading, JNM, a commercial

party planning to operate a restaurant, in seeking a contractual

right to use the "nonexclusive use" spaces bargained for what

amounts to a meaningless term.    Under the contract as so

construed, nonexclusive-use spaces that would once have been

available only to the restaurant and other tenants of the

condominium on an equal footing may be rented out to a third

party, reducing the availability of those spaces for restaurant

patrons, and there will be no violation of the contract.     That

is obviously wrong.
                                                                  12


    The majority concludes that the lease does not guarantee or

entitle JNM to use any specified number of nonexclusive use

spaces.    But there is, in fact, evidence in the summary judgment

record that would support a finding by a jury that it was

unlawful for the trust to license these spaces to USPS.    The

trust reduced the number of available parking spaces for

occupants of the condominium to a number below what was required

both by zoning by-law and for approval of the site plan and

issuance of a special permit for the development by the zoning

board of appeals.   In bargaining for its lease, JNM was entitled

to rely upon these limitations on reducing the number of

nonexclusive use spaces for which its patrons were entitled to

compete.    They need not have been contained in the lease for the

trust's agreement with USPS to render impossible Canton

Viaduct's performance of its contractual obligation to make the

legally required number of nonexclusive use spaces available.

Consequently, the summary judgment should be reversed.

    b.     Other grounds for affirmance.   The third and fourth

elements of tortious interference with contractual relations

appropriately remained unaddressed by the judge below, and the

trust has not argued for affirmance on these alternative
                                                                      13


grounds.    Nonetheless, because the lead opinion addresses those

elements, I do so as well.5

     The third element requires either improper "means" or an

improper "motive."     "[T]he plaintiff need not prove both."

Cavicchi v. Koski, 67 Mass. App. Ct. 654, 658 (2006).

     As to means, the evidence that the agreement with USPS

reduced the number of available parking spaces to a number below

what was required both by zoning by-law and for approval of the

site plan and issuance of a special permit for the development

suffices to raise a genuine issue of material fact on this jury

question.

     I disagree that in order to prove improper means there must

be some "actual reprehensible conduct" distinct from any

violation of a statute or regulation.       Ante at    .   We have

held that "[i]mproper means include violation of a statute or

common-law precept."     Cavicchi, supra.    To be sure, "even when

there is a violation of statute or common-law rule, there must

be a case-by-case evaluation," and "not every such violation

constitutes improper means."     KACT, Inc. v. Rubin, 62 Mass. App.

Ct. 689, 699 (2004).    Thus, in KACT, Inc., supra at 700, a

violation of condominium documents and thus G. L. c. 183A by

condominium trustees in proposing rules and regulations for


     5
       The concurring opinion would not reach and does not
address these elements.
                                                                  14


operation of a restaurant was held not to amount to improper

means "at least as to the plaintiffs" where the plaintiffs,

through acquiescence over many years, "had waived any violation

of the statute, as well as any violation of the provisions of

the master deed and by-laws."

     But the evidence on the question of impropriety in this

case is at least sufficient to go to a jury.   Indeed, to reach

the opposite conclusion, we would have to hold that the trust

might have leased out the entire parking lot to a third party in

violation of the zoning by-law, depriving the great majority of

the tenants in the condominium of any place to park, and that

none might have redress for this interference with his or her

lease because, as a matter of law, the trust did not use

"improper means."

     As to "motive," a genuine issue of material fact exists

because the record evidence shows that although the trust could

revoke the USPS agreement at will, it took no action even after

JNM informed the trust in June of 2011 that the lack of parking

was hurting its business and that the USPS agreement violated

the special permit.6


     6
       There is also evidence in the summary judgment record that
some condominium residents objected to Centerfields's presence,
and that may have engendered ill will towards Centerfields among
the trustees. See Adcom Prods., Inc. v. Konica Bus. Machs. USA,
Inc., 41 Mass. App. Ct. 101, 105 (1996) (motive of retaliation
or ill will is improper).
                                                                  15


    As for the fourth element, there is in the record

sufficient evidence that JNM was harmed by the trust's actions

that the question must go to a jury.   Drawing every reasonable

inference in favor of JNM, the evidence supports a conclusion

that the parking situation was far worse after the trust entered

its agreement with USPS.   Whether the loss of nonexclusive use

spaces harmed JNM is a quintessential jury question.    If we view

the evidence as we must, in the light most favorable to JNM, we

cannot resolve it in the trust's favor.

    Conclusion.   Because the trust's motion for summary

judgment should not have been allowed, I respectfully dissent.
