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16-P-420                                              Appeals Court

     PATRIOT POWER, LLC1     vs.   NEW ROUNDER, LLC, & another.2


                             No. 16-P-420.

        Middlesex.       December 8, 2016. - March 13, 2017.

         Present:    Kafker, C.J., Grainger, & Sullivan, JJ.


Declaratory Relief. Practice, Civil, Declaratory proceeding,
     Burden of proof, Instructions to jury. Contract, Lease of
     real estate, Condition, Termination. Landlord and Tenant,
     Termination of lease. Real Property, Lease. Notice.


     Civil action commenced in the Superior Court Department on
March 24, 2014.

    The case was tried before Bruce R. Henry, J.


     Mark C. O'Connor (Douglas S. Denny-Brown also present) for
the plaintiff.
     Robert F. Feeney for the defendants.


    KAFKER, C.J.      The issue presented in this declaratory

judgment and breach of contract action is which party bears the

burden of proof at trial regarding the exercise of a termination


    1
        Doing business as MandaShan Enterprises.
    2
        Concord Music Group, Inc.
                                                                     2


option in a lease.     The plaintiff, Patriot Power, LLC, doing

business as MandaShan Enterprises, was the landlord in a

commercial lease; the defendant New Rounder, LLC, was the

tenant, and the defendant Concord Music Group, Inc., was the

guarantor (we refer to the defendants collectively as tenant).

The lease provided that it would automatically renew each year

unless either party timely notified the other that it wished to

exercise a termination option in the lease.     In the instant

case, the landlord filed a complaint seeking a declaratory

judgment that the tenant had not effectively terminated the

lease, and asking for one year's rent plus consequential

damages.   The tenant answered and counterclaimed, seeking a

declaratory judgment that it had properly notified the landlord

of its intention to terminate.     The landlord sought a pretrial

ruling that the tenant had the burden of proof at trial on the

issue of whether it sent a lease termination letter before the

nonrenewal deadline.     A judge denied the motion, ruling that as

the "moving party," the landlord bore the burden to prove it did

not receive the termination letter on time.     At trial, a

different judge instructed the jury in accordance with the

pretrial ruling.     The landlord objected to this instruction.

The jury returned a verdict in favor of the tenant.
                                                                    3


     On appeal, the landlord contends that the trial judge's

burden of proof instruction was erroneous and prejudicial.3    We

conclude that the tenant had the burden to prove it fulfilled

the termination option requirements outlined in the lease, as

this was a condition imposed on the party seeking to end the

contractual obligation.   Because the jury instruction regarding

the burden of proof was erroneous and prejudicial, we reverse.

     Background.   The following facts are undisputed.   On April

1, 2010, the tenant executed a lease with the landlord's

predecessor in interest for commercial office and warehouse

space in Burlington.   On December 31, 2012, the parties executed

an amendment to the original lease (first amendment).    Section

1.4 of the first amendment states:

     "This Lease, including all covenants, terms, conditions
     contained herein, shall be automatically extended for
     additional successive Renewal Terms of one (1) year each
     unless Tenant or Landlord serves written notice, either
     party to the other, of either party's option not to so
     extend the Lease. The time for service of such written
     notice shall not be more than twelve (12) months or less
     than six (6) months prior to the expiration of then-current
     lease period. Time is of the essence."

     The original lease also included a provision stating that

any notices to either the landlord or the tenant "shall be in

     3
       Specifically, the landlord argues that the tenant bears
the burden of proof because (1) the language of the lease places
the burden on the party attempting to terminate, and (2) in an
option contract dispute, the party seeking to specifically
enforce the option (in this case, the option to terminate the
lease) has the burden to prove it effectively exercised the
option.
                                                                   4


writing and shall be sent by registered or certified mail or by

a recognized overnight courier who maintains delivery records,

postage prepaid," and that "[a]ll such notices shall be

effective when received or, if delivery is refused, upon first

refusal."   As the lease was set to renew automatically on March

31, 2014, either party would have had to notify the other by

September 30, 2013, if it intended to terminate.

    On September 17, 2013, the tenant sent a postage prepaid

package via Federal Express (package or Federal Express package)

to the landlord's address.   The landlord received the package on

September 18, 2013.   Both parties agree that the package

contained a "Subordination Non-Disturbance and Attachment

Agreement" and a "Tenant Estoppel Certificate" (collectively

referred to as the refinancing documents), as well as a

transmittal letter referencing the refinancing documents

(transmittal letter).   However, the parties dispute whether the

package also contained a signed letter, dated September 16,

2013, from the tenant to the landlord, expressing the tenant's

intent to terminate the lease (termination notice).   It stated

in relevant part:

    "Pursuant to paragraph 1.4 of the Commercial Lease
    Agreement dated as of April 1, 2010, as amended ('Lease'),
    between New Rounder LLC ('Tenant') and Patriot Power, LLC
    (successor-in-interest to Lost Exit Partnership)
    ('Landlord'), this letter is written notice to the Landlord
    that Tenant will not be exercising its option to extend the
                                                                    5


    Lease. Therefore, the term of the Lease shall expire at
    noon on March 31, 2014."

    Trial.   At trial, the tenant's executive assistant, Alma

Jimenez, testified that on September 16, 2013, the tenant's

senior director of business and legal affairs, Pollyanna Kwok,

handed Jimenez the refinancing documents and transmittal letter,

with instructions to send them to the landlord via Federal

Express.   Later that same day, Kwok gave Jimenez the termination

notice, also to be sent to the landlord.    Jimenez asked Kwok if

she could send the termination notice and the refinancing

documents in the same envelope, and Kwok answered yes.    Jimenez

testified that she had "no doubt at all" that she placed the

termination notice in the Federal Express package along with the

refinancing documents and the transmittal letter.   Finally,

Jimenez testified that it was her custom to place a copy of any

outgoing correspondence in a file after forwarding the original,

and that after sending the Federal Express package containing

the termination notice, refinancing documents, and transmittal

letter, she had placed copies of them in a file labeled "Concord

Music Group Lease -- Rounder (Mass) (Volume II)."   The file and

its contents, including the termination notice, were admitted as

an exhibit at trial.

    In response, the landlord called its own executive

assistant, Melissa Ehrenthal, to testify.   Ehrenthal testified
                                                                     6


that she had forwarded the refinancing documents to Kwok via

electronic mail message (e-mail) on September 16, 2013, and was

subsequently home sick for three days.     When Ehrenthal returned

to work on September 20, 2013, she found an e-mail in her inbox

from Kwok, and a Federal Express package from the tenant on her

desk.     The e-mail from Kwok was dated September 16, and stated

in relevant part:

    "Would you please confirm as to whether any notices that we
    send should be sent to your attention. As you may be aware
    our lease term ends as of March 31, 2014, and under the
    lease we need to provide notice as to whether we intend to
    exercise our option to extend the lease or not by September
    30, 2013. Please let me know at your earliest
    convenience."

    Ehrenthal responded to the e-mail by advising Kwok to

forward the notice of nonrenewal to Matthew Kinney, one of the

landlord's attorneys.    She then opened the Federal Express

package.    Ehrenthal testified that the package only contained

the executed refinancing documents and a transmittal letter, and

that she was "absolutely certain" there were no other documents

inside.

    After the close of evidence, the judge gave the jury

charge, which included the following instruction regarding the

burden of proof:

    "[T]he [landlord] must persuade you that it is more
    probable than not that what it is claiming with regard to
    the lease renewal is true. If you find that it is more
    likely or equally likely that the [landlord's] claim is not
    true, the [landlord] has failed to sustain its burden of
                                                                   7


    proof . . . . It is the burden of the [landlord] to prove
    by a preponderance of the evidence that the notice of
    intent to terminate the lease was not contained in the
    FedEx package when it was received."

    The landlord objected to the instruction, arguing that the

tenant was "required to show [by] a fair preponderance of the

evidence that it effectively exercised the option." Following

deliberations, the jury answered "No" to the special question,

"Did the [landlord] prove by a preponderance of the evidence

that it did not receive the termination notice from the [tenant]

in the FedEx package delivered to it on September 18, 2013?" and

returned a verdict in favor of the tenant.

    Discussion.   "In a declaratory judgment action, the

determination concerning which party has the burden of proof

depends on the nature of the underlying action."   Haskell v.

Versyss Liquidating Trust, 75 Mass. App. Ct. 120, 126 (2009).

See Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 703 (1964) ("Had

the lessors brought an action for damages for breach of an

implied covenant to continue operations they would, of course,

have had the burden of showing the covenant.   That the lessee

initiated the proceeding for declaratory relief does not shift

the burden to the lessee"); Foley v. McGonigle, 3 Mass. App. Ct.

746 (1975) (in easement dispute, "[t]he fact that the plaintiff

initiated this proceeding for declaratory relief does not shift

th[e] burden to him").
                                                                     8


    In the instant breach of contract and declaratory judgment

action, the existence of the lease and its automatic renewal

provision were undisputed.     See Restatement (Second) of

Property:    Landlord & Tenant § 1.5 comment f, at 24 (1977) ("The

lease may specify the time before the end of the designated

period that notice must be given by either party to terminate

the lease as of the end of the period.     If no such notice of

termination is given, the lease will continue for another

period").    The only issue at trial was whether the lease

termination option was properly exercised by the party seeking

to discontinue the lease.     In these circumstances we conclude

that the nature of the underlying action, and therefore who has

the burden of proof, is best defined by a line of cases in which

"one relying on a condition to avoid a contractual obligation

has the burden to prove the occurrence of the condition."

Haskell, 75 Mass. App. Ct. at 126.     The rationale for such an

allocation of the burden of proof is particularly strong where

the condition for avoiding the contractual obligation actually

requires an affirmative act by the party seeking to end the

obligation, as it does here.     Cf. Restatement (Second) of

Property:    Landlord & Tenant § 1.5 comment f, at 25 ("The lease

may specify that the notice of termination must be in writing

. . . .     If [notice of termination] is mailed the notice is not

effective until it is received by the addressee and the burden
                                                                      9


of proof is on the one giving the notice to prove when it was

received"); 13 Corbin on Contracts § 68.9(1), at 255-256 (2003)

("To establish a discharge because of the exercise of a

conditional power to terminate or to cancel, the party with the

privilege must establish the fulfillment of the condition -- the

existence or occurrence of the fact or event constituting the

condition").

    The seminal case is Gray v. Gardner, 17 Mass. 188 (1821).

In Gray, "[t]he very words of the contract show that there was a

promise to pay, which was to be defeated by the happening of an

event, . . . the arrival of a certain quantity of [sperm whale]

oil, at the specified places [in Nantucket and New Bedford], in

a given time."   Id. at 189.   The contract was considered to be

"like a bond with a condition; if the obligor would avoid the

bond, he must show performance of the condition."    Ibid.   The

court held that the burden to prove that the designated quantity

of sperm whale oil had arrived at Nantucket and New Bedford

during the specified dates was on the defendants, not the

plaintiffs bringing suit to enforce the promise to pay:      "[t]he

defendants, in this case, promise to pay a certain sum of money,

on condition that the promise shall be void on the happening of

an event.   It is plain that the burden of proof is upon them;

and if they fail to show that the event has happened, the

promise remains good."   Ibid.
                                                                    10


    The instant case likewise involves a contractual

obligation, and a condition that would void the obligation.

Indeed, the condition imposes a requirement in the form of an

affirmative act by the party seeking to terminate the ongoing

obligation.   More specifically, the contract between the

landlord and the tenant provided that the lease would

automatically renew each year, unless one of the parties timely

and properly notified the other that it intended to terminate

the lease.    Cf. Restatement (Second) of Property:   Landlord &

Tenant § 1.5 comment f.    To end its contractual obligation, the

tenant therefore had to exercise the option by serving written

notice that it was terminating the lease.    The burden of proof

of the satisfaction of that condition should therefore have been

placed on the tenant in this declaratory judgment action.     See

Gray, supra; Thayer v. Conner, 5 Allen 25, 26-27 (1862) (where

defendant's promise to pay plaintiff thirty dollars for sale and

delivery of goods to be used in store was to be voided if

defendant was deprived by third party of use of store, defendant

bore burden to prove he had indeed been removed from store);

Haskell, 75 Mass. App. Ct. at 126-127 (party required to return

shares of stock unless per share price reached $1.50 had burden

of proving stock price reached $1.50).    See also Restatement

(Second) of Property:    Landlord & Tenant § 1.5 comment f; 13

Corbin on Contracts § 68.9(1).
                                                                    11


    As the instruction here erroneously placed the burden of

proof on the landlord, and the landlord objected, we next

consider whether the error was prejudicial.    "An error in jury

instructions is not grounds for setting aside a verdict unless

the error was prejudicial -- that is, unless the result might

have differed absent the error."    Blackstone v. Cashman, 448

Mass. 255, 270 (2007).    Both the landlord's and the tenant's

cases rested primarily on the testimony of their respective

executive assistants, who directly contradicted each other.

Such credibility questions must be resolved by the fact finder,

not an appellate court.    See Commonwealth v. Randolph, 438 Mass.

290, 300 (2002) ("As an appellate court we do not sit as a

second jury, but we must accept the fact finders' evaluation of

witness credibility, as evidenced by their findings" [citation

omitted]).   The judge here instructed the jury to find for the

tenant if it was "more likely or equally likely that the

[landlord's] claim [was] not true" (emphasis added).    This was

incorrect, as a jury that could not resolve the credibility

question should have decided in favor of the landlord, not the

tenant, as the tenant (the party exercising the termination

option) had the burden of proof.    As we do not know whether the

jury decided the credibility question in favor of the tenant or

found both executive assistants equally credible or incredible,
                                                                12


we conclude the result might have differed absent the error.   We

therefore reverse.

                                  Judgment reversed.

                                  Verdict set aside.
