LAMACCHIA REALTY INC v. SANDRA FULMER (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Lamacchia Realty, Inc., brought an action in the Superior Court against the defendants, William Copithorne and Dawn Marshall, among others,³ alleging tortious interference with contractual relations and a violation of G. L. c. 93A, § 11, stemming from the defendants’ listing a property for sale which, the plaintiff contends, infringed on its exclusive listing agreement to sell the property. On the parties’ cross motions for summary judgment, the judge allowed the defendants’ motions and denied the plaintiff's motion. The judge thereafter denied the plaintiff's motion for reconsideration. The plaintiff appeals.⁴ We affirm.

1. Standard of review. We examine a grant of summary judgment de novo. Freedman v. United States Liab. Ins. Co., 82 Mass. App. Ct. 331, 334 (2012). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the party against whom summary judgment entered, there is no material issue of fact in dispute and the moving party is entitled to judgment as a matter of law. See Berry v. Commerce Ins. Co., 488 Mass. 633, 636 (2021). Where, as here, the moving party will not have the burden of proof at trial, they can prevail on summary judgment by showing that “the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). To defeat such a motion, the opposing party “may not rest on the allegations contained in [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Bourque v. Cape Southport Assocs., LLC, 60 Mass. App. Ct. 271, 277 (2004). We resolve “all doubt as to the existence of a genuine issue of material fact” in favor of the opposing party (citation omitted). Attorney Gen. v. Bailey, 386 Mass. 367, 371 (1982).

2. Tortious interference with contractual relations. To establish a claim of tortious interference with contractual relations, the plaintiff was required to adduce evidence that: (1) it had a contract with a third party; (2) the defendants knowingly induced the third party to break the contract; (3) the defendants’ conduct was intentional and improper in motive or means; and (4) the plaintiff was harmed by the defendants’ actions. See Cutting Edge Homes, Inc. v. Mayer, 103 Mass. App. Ct. 749, 752 (2024).

Although our review is de novo, we agree with the judge's ruling that the plaintiff's claim founders on the element of inducement. The summary judgment record shows that, when the trustees of the trust that held the property in question engaged the defendants to become the listing agents for the property, they had already determined to terminate the prior agreement with the plaintiff. Prior to contracting with the defendants, the attorney representing the trust told the plaintiff that he was terminating the plaintiff “from having anything further to do” with the property and that the trustees were going to “proceed forward with another [b]roker.” The plaintiff, for its part, had also expressed to the attorney for the trust its desire to terminate their agreement; its agents removed the “for sale” sign, marketing materials, and lock box from the property; and it sent the trustees a release to terminate the agreement.⁵

Based on this record evidence, the defendants could not have induced or intended the break of a contractual relationship that was already broken. See Restatement (Second) of Torts § 766 comment h (1979) (“ ‘[I]nduce[ment]’ refers to the situations in which A causes B to choose one course of conduct rather than another․ [It] operates on the mind of the person induced․ The essential thing is the intent to cause the result”). But see Melo-Tone Vending, Inc. v. Sherry, Inc., 39 Mass. App. Ct. 315, 317-318 (1995).

The record evidence also fails to establish that the defendants’ actions were improper as to motive or means. In the context of a claim of tortious interference with contractual relations, “ ‘improper’ generally mean[s] innately wrongful, [and] predatory in character, deceitful, or involving threats, misrepresentation, or defamation” (quotations and citations omitted). Cutting Edge Homes, Inc., 103 Mass. App. Ct. at 753. The record contains no evidence that the defendants acted with an improper motive. To the contrary, the record evidence establishes that the trustees sought out the defendants and represented to them that the trustees’ agreement with the plaintiff had been severed. Additionally, as the judge noted, the defendants “did not sign an agreement with the [trustees] until [they] had further independent proof of the severed relationship with [the plaintiff], i.e., the removed MLS listing.” See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816-817 (1990). Similarly, the defendants’ conduct -entering into an agreement with the trustees on their attorney's representation that their prior agreement with the plaintiff had been terminated -- does not rise to the level of improper means. See B.C. Constr. Co. v. Johnson Roberts Assocs., Inc., 106 Mass. App. Ct. 107, 113 (2025). For this reason too, the defendants are entitled to summary judgment.

3. Violation of G. L. c. 93A. The plaintiff's G. L. c. 93A claim is largely derivative of their claim of intentional interference with contractual relations. Where the record evidence is insufficient to sustain that claim, it is likewise insufficient to establish that the defendants’ conduct was unfair or deceptive under G. L. c. 93A, § 11. See Pembroke Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass. App. Ct. 34, 41 (2004).

That the defendants may have infringed the National Association of Realtors’ professional code of ethics by entering into the agreement with the trustees without first contacting the plaintiff to learn whether their exclusive agreement with the trustees was still in effect, does not, by itself, sustain a cause of action under G. L. c. 93A, § 11. See Korper v. Weinstein, 57 Mass. App. Ct. 433, 439 (2003) (“a professional who violates a professional ethical rule does not become liable under G. L. c. 93A in all circumstances”). Rather, there must be evidence in the record that the defendants’ conduct was so “unfair or deceptive” that it rose to the level of a violation of G. L. c. 93A, § 11. H1 Lincoln, Inc. v. South Washington St., LLC, 489 Mass. 1, 14 (2022). Because the record evidence failed to rise to the level of a G. L. c. 93A violation, the defendants are entitled to summary judgment on this claim as well.

4. Attorney's fees. The defendants move for an award of costs for the appeal. Copithorne additionally moves for an award of attorney's fees. Although we affirm the grant of summary judgment, we do not conclude that the plaintiff's appeal was frivolous. We therefore decline to exercise our discretion to award appellate attorney's fees and costs.

Order allowing summary judgment affirmed.

Order denying motion for reconsideration affirmed.

FOOTNOTES

3.   The plaintiff's claims against the other defendants are not at issue here. Accordingly, our references to “the defendants” are to Copithorne and Marshall.

4.   We note that the plaintiff's notice of appeal appears to have been premature, as no separate and final judgment had entered and other claims against other parties remained pending. See Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). Regardless, where those other claims have since been resolved, we exercise our discretion to reach the merits of this appeal from the order allowing summary judgment.

5.   Nothing in the record suggests that the trustees signed the release. Our analysis, however, does not turn on whether, notwithstanding the unsigned release, the plaintiff and the trustees had mutually agreed to rescind their agreement by the time that the trustees and the defendants entered into their agreement. See Puma v. Gordon, 9 Mass. App. Ct. 489, 495 (1980).