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16-P-165 Appeals Court

COPLEY PLACE ASSOCIATES, LLC vs. CARLOS TÉLLEZ-BORTONI.

No. 16-P-165.

Suffolk. December 9, 2016. - March 16, 2017.

Present: Milkey, Massing, & Sacks, JJ.

Fraud. Deceit. Real Property, Lease. Contract, Lease of real 

estate. Practice, Civil, Summary judgment, Judgment 

notwithstanding verdict.

Civil action commenced in the Superior Court Department on 

April 24, 2012. 

A motion for summary judgment was heard by Peter M. 

Lauriat, J.; the case was tried before Robert B. Gordon, J., and 

a motion for judgment notwithstanding the verdict was heard by 

him.

Robert E. Curtis, Jr., for the defendant.

Martin M. Fantozzi (David M. Zucker also present) for the 

plaintiff.

SACKS, J. The defendant, Carlos Téllez-Bortoni, appeals 

from a judgment entered against him in favor of the plaintiff,

Copley Place Associates, LLC (Copley), on claims for fraud and 

violation of G. L. c. 93A. He argues that a judge of the 
2

Superior Court erred in awarding Copley partial summary judgment 

against him on liability. We conclude that Copley's motion 

failed to establish as undisputed fact that Copley relied to its 

detriment on false representations made by Téllez-Bortoni. We 

therefore vacate the judgment and remand for further 

proceedings.

Background. Copley's claims arose out of a failed venture 

in which Irish Pub Group, Inc. (IPG), was to have operated a 

restaurant in space leased from Copley in its mall located in 

Boston. Téllez-Bortoni signed the lease on IPG's behalf. 

Section 24.11 of the lease stated, "If Tenant is or will be a 

corporation, the persons executing this Lease on behalf of 

Tenant hereby covenant and warrant that . . . the person signing 

this Lease on behalf of the corporation is an officer of Tenant, 

and is duly authorized to sign and execute this Lease." 

Sometime after the lease was signed, Téllez-Bortoni informed

Copley that one Raymond Houle was "a part of [IPG]," causing 

Copley to inform a bank that Houle could negotiate a large check 

Copley had issued to IPG as a portion of a "Landlord's 

Contribution" provided for in the lease. Houle deposited the 

check in IPG's account. 

IPG did not use the funds to further the project as 

required by the lease, the restaurant never opened, and Copley 

sued IPG, Téllez-Bortoni, Houle, and others on a variety of 
3

theories, seeking to recover amounts due under the lease and 

other damages. IPG never denied that Téllez-Bortoni's signature 

sufficed to bind IPG to the lease; instead, IPG failed to appear 

and was defaulted. After obtaining default judgments against 

IPG and all other defendants except Téllez-Bortoni, the judge 

awarded Copley partial summary judgment against Téllez-Bortoni 

on liability for fraud and violation of G. L. c. 93A, premised 

on Copley's claimed detrimental reliance on his assertedly (1) 

false representations that he was an officer of IPG, duly 

authorized to sign the lease, and (2) misleadingly incomplete 

statement concerning Houle's role with IPG. After a trial on 

damages presided over by a different judge, a jury returned a 

verdict of $865,060.44, to which the judge added $126,440.09 in 

attorney's fees and costs. Téllez-Bortoni moved for judgment 

notwithstanding the verdict (JNOV) and, upon the trial judge's 

denial of that motion, Téllez-Bortoni filed this appeal, in 

which he challenges the partial summary judgment ruling.

Discussion. After briefly reviewing the law of fraud or 

deceit,1 we discuss in turn the summary judgment record regarding 

Téllez-Bortoni's representations to Copley (1) as to his status 

 

1 For present purposes we may treat the terms "deceit" and 

"fraud" as interchangeable. See Graphic Arts Finishers, Inc. v. 

Boston Redev. Authy., 357 Mass. 40, 44 (1970); Brown v. 

Gerstein, 17 Mass. App. Ct. 558, 567 n.14 (1984).
4

as an IPG officer with authority to sign the lease, and (2) as 

to Houle's status vis-à-vis IPG. 

"In a deceit action, the plaintiff must prove 'that the 

defendant made a false representation of a material fact with 

knowledge of its falsity for the purpose of inducing the 

plaintiff to act thereon, and that the plaintiff relied upon the 

representation as true and acted upon it to his damage.'" Danca

v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982), quoting from

Barrett Assocs. v. Aronson, 346 Mass. 150, 152 (1963). "Such 

reliance by the plaintiff must be reasonable." Masingill v. EMC 

Corp., 449 Mass. 532, 540 (2007). Further, "[i]f a statement of 

fact which is susceptible of actual knowledge is made as of 

one's own knowledge and is false, it may be the basis for an 

action of deceit without proof of an actual intent to deceive." 

Pietrazak v. McDermott, 341 Mass. 107, 110 (1960). See Snyder

v. Sperry & Hutchinson Co., 368 Mass. 433, 444 (1975). Finally, 

incomplete statements may in some circumstances amount to 

actionable fraud. Greenleaf Arms Realty Trust I, LLC v. New 

Boston Fund, Inc., 81 Mass. App. Ct. 282, 291-292 (2012). 

1. Representations of officer status and authority. On 

Copley's motion for partial summary judgment, the judge 

correctly ruled it undisputed that Téllez-Bortoni's 

representations and warranties that he was an officer of IPG, 
5

and duly authorized to execute the lease, were false.

2 Based on 

Pietrazak v. McDermott, 341 Mass. at 110, the judge did not find 

it necessary to address whether Téllez-Bortoni made the 

representations with an actual intent to deceive.3 The judge 

then concluded, "On the basis of those representations, Copley 

. . . did lease premises to [IPG], and it consequently suffered 

financial losses." In short, the judge viewed as undisputed 

that Copley had relied to its detriment on Téllez-Bortoni's 

representations in the lease.

4

The summary judgment record did not support these

conclusions. Although Copley's memorandum in support of its 

motion recognized that it needed to establish detrimental 

 

2 Téllez-Bortoni's affidavit stated that he had instructed 

an associate to file incorporation papers for IPG listing him as 

an officer, that he had believed he was an officer, and that he 

had invested a substantial sum in IPG, but he ultimately 

acknowledged that he in fact was never an officer of IPG.

3 Téllez-Bortoni argues, for the first time on appeal, (1) 

that his scienter in making these representations presented a 

genuine issue of material fact; and (2) that Copley failed to 

plead with particularity, as required by Mass.R.Civ.P. 9(b), 365 

Mass. 751 (1974), that its fraud claim was based on these 

representations. These arguments are waived. It is 

nevertheless telling that, although Copley's complaint alleged 

detrimental reliance on several other specific false statements 

by the defendants, Copley did not think to include in this list 

Téllez-Bortoni's representations and warranties in the lease.

4 The judge also did not address two other essential 

elements of Copley's fraud claim: whether Téllez-Bortoni's 

representations were "material" and whether Copley's reliance on 

them was "reasonable."
6

reliance, its supporting statement of undisputed facts failed to 

do so. 

The closest Copley came to addressing reliance was the 

statement in its memorandum in support of the motion that "it is 

obvious that Copley . . . would never have signed the Lease and 

issued a check for the first installment of Landlord's 

Contribution if it had known that [Téllez-Bortoni] was not 

authorized to enter into the Lease on behalf of [IPG]." But 

this assertion was not supported by any citation to the 

statement of undisputed material facts or to any of the 

underlying materials that may be considered on a motion for 

summary judgment. Téllez-Bortoni argued that Copley had failed

to establish such reliance. Although it is plausible that 

Copley actually relied on the representations when entering the 

lease, particularly where the lease contained a "covenant and 

warrant" by Téllez-Bortoni as to the truth of the 

representations, we find no evidence to that effect in the 

record.5 Moreover, it is also plausible that Copley's principal 

 

5 We do not agree with Copley's argument that the 

incorporation of Téllez-Bortoni's representations and warranties

into the lease was itself sufficient to establish reliance in 

view of the principle that "no part of the contract is to be 

disregarded." Starr v. Fordham, 420 Mass. 178, 190 1995), 

quoting from Boston Elevated Ry. v. Metropolitan Transit Authy., 

323 Mass. 562, 569 (1949). That is a principle of contract 

interpretation, not of tort law. To be sure, Copley could also 

have brought a claim in contract for breach of warranty. See 

Carolet Corp. v. Garfield, 339 Mass. 75, 79 (1959). This might 
7

interest was in the lease being signed and then the lessee 

recognizing and performing its obligations thereunder, rather 

than in any formal defects in the signer's authority. "In 

reviewing an order granting summary judgment . . . we of course 

apply our traditional test and consider the facts in their light 

most favorable to the nonmoving party, drawing all reasonable 

inferences in [that party's] favor." Sullivan v. Liberty Mut. 

Ins. Co., 444 Mass. 34, 38 (2005).

6

Nor did Copley establish that it suffered any detriment as 

a result of the falsity of Téllez-Bortoni's assertion of officer 

status and authority to sign the lease. It offered no evidence 

 

have avoided the need to prove reliance, but Copley still would 

have had to prove, as on any contract claim, that it suffered 

harm as a result of the breach, see Singarella v. Boston, 342 

Mass. 385, 387 (1961), much as Copley was required to show on 

its fraud claim that its reliance caused it detriment. See 

infra at .

6 This hole in the summary judgment record is not filled by 

Copley's introduction of evidence, at the subsequent trial on 

damages, that it routinely insists upon the inclusion of a 

provision like the one at issue here in all of its commercial 

leases, and that it will not sign a lease unless the prospective 

tenant has signed first, thus warranting his or her authority to 

do so. As the trial judge stated in his JNOV decision, the jury 

were instructed to determine only damages -- not the question 

whether Copley had relied on Téllez-Bortoni's 

misrepresentations, which the trial judge viewed as already 

having been decided by the partial summary judgment. 

Accordingly, and because the parties have not included the trial 

record in the materials submitted on appeal, we can have no 

confidence that Téllez-Bortoni had a fair opportunity at trial 

to meet Copley's evidence of reliance. We also note the trial 

judge's observation in his JNOV decision that the evidence of 

Copley's reliance was "by no means overwhelming."
8

of such detriment, and IPG has never asserted that TéllezBortoni lacked authority to bind it to the lease with Copley, or 

otherwise disavowed anything he might have done in IPG's name. 

IPG did not defend against Copley's suit on the ground that the 

lease was invalid; rather, IPG defaulted and had a multi-million 

dollar default judgment entered against it. Put differently, 

although Copley may have suffered detriment caused by TéllezBortoni's bare signing of the lease (because, without a signed 

lease, Copley might not have allowed IPG onto the premises), we

cannot discern on this record how Copley suffered detriment 

caused by the falsity of Téllez-Bortoni's representations in the 

course of signing the lease. Rather, the detriment to Copley 

appears to have been caused by IPG's breach of its lease 

obligations.

7

2. Representations as to Houle. Although the motion judge 

did not rest his ruling on the point, Copley suggests that its 

reliance on Téllez-Bortoni's representation that Houle was a 

part of IPG, is another ground on which it was entitled to 

summary judgment on liability. We are not persuaded.

 

7 "Proof of damages flowing from misrepresentations is 

essential to recovery. Cardullo v. Landau, 329 Mass. 5, 7 

(1952)." Poly v. Moylan, 423 Mass. 141, 149 (1996), cert. 

denied, 519 U.S. 1114 (1997). In Massachusetts, a broader rule 

of causation has been applied in fraud cases involving the 

purchase or retention of stock. See Reisman v. KPMG Peat 

Marwick LLP, 57 Mass. App. Ct. 100, 111-120 & n.22 (2003). We 

are aware of no decision extending this broader approach beyond 

that context.
9

The summary judgment record shows that, as required by the 

lease, Copley issued a check for $452,450 to IPG as a portion of 

the "Landlord's Contribution" to assist in the build-out of the 

leased premises, and Houle attempted to negotiate the check. 

Copley's bank and a second bank questioned whether this was 

proper. Copley asserted that its bank raised the question 

directly with IPG, although there is no record support for this 

assertion. The record does show that one Elizabeth Hazan, who 

had worked with Téllez-Bortoni on IPG matters, sent an

electronic mail message (e-mail) to him requesting, without 

reference to the check or other explanation, that he in turn 

send an e-mail to Copley confirming that Houle was "part of 

[IPG]." Téllez-Bortoni did so.8 Copley forwarded the e-mail to 

the bank, which then accepted the check for deposit into IPG's 

account. 

Copley has not asserted that Téllez-Bortoni's statement 

that Houle was a part of IPG was itself false. To the contrary,

the record shows Copley's position, based on public corporate 

filings, that Houle was in fact the sole officer and director of 

 

8 Téllez-Bortoni stated at his deposition that he sent the 

e-mail at Hazan's request but without her ever having explained 

why she wanted him to do so. He had never met Houle and did not 

know who Houle was, but Hazan had told him that Houle was "one 

of the new investors at [IPG]," that they were "buying [TéllezBortoni] out," and that Houle "needed to be . . . part of 

[IPG]." He understood that the e-mail to Copley was necessary 

because Houle was "a new character, a new partner" in IPG.
10

IPG at that time. Nor has Copley asserted that its reliance on 

Téllez-Bortoni's statement about Houle led to any direct 

detriment or harm. The "Landlord Contribution" check, made out 

to IPG and endorsed by Houle, was deposited in IPG's account, 

just as Copley intended. 

Rather, the harm Copley asserts is that once the check was 

deposited, IPG did not use the money to build out the leased 

premises as required by the lease.9 Further, Hazan had told 

Téllez-Bortoni that she expected to receive some money soon from 

Copley and that once she did so, she could loan him $15,000, 

which he had the "impression" would come from the Copley 

payment. When the check was deposited, Hazan paid him $15,000.10 

Copley asserted that the "Landlord Contribution" would not 

have been made, and thus could not have been misused, but for 

Téllez-Bortoni's failure to disclose, in his e-mail to Copley,

that (1) he had never met and did not know Houle, (2) he did not 

know what position Houle held with IPG, and (3) he had agreed to 

sell his interest in IPG to Hazan. Copley pointed to the rule 

 

9 Copley obtained a default judgment against Houle for 

$6,682,975.60 in damages, presumably based not only on the use 

of the "Landlord Contribution" but on Houle's other acts and 

omissions with regard to IPG's relationship with Copley.

10 Téllez-Bortoni's deposition testimony is unclear on 

whether this was a loan or part of the payment to buy out his 

interest in IPG. Also, the summary judgment record does not 

establish as undisputed fact that the $15,000 was paid using 

funds IPG received from Copley.
11

that misleadingly incomplete statements may amount to actionable 

fraud:

"[E]ven in an arms-length transaction, though there may be 

no duty otherwise imposed, if a party does speak 'to a 

given point of information, voluntarily or [otherwise], he 

is bound to speak honestly and to divulge all the material 

facts bearing upon the point that lie within his [or her] 

knowledge. Fragmentary information may be as misleading 

. . . as active misrepresentation, and half-truths may be 

as actionable as whole lies.' Kannavos v. Annino, 356 

Mass. 42, 48 (1969)."

Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 

Mass. App. Ct. at 291-292.

Although this theory has some appeal, at this stage of the 

case it is not a ground for affirmance of the judgment against 

Téllez-Bortoni. The theory depends both on facts that may 

remain in dispute and on drawing inferences in favor of Copley, 

whereas we must draw them in favor of Téllez-Bortoni as the 

nonmoving party. See Sullivan v. Liberty Mut. Ins. Co., 444 

Mass. at 38. For example, Copley has not established as 

undisputed that Téllez-Bortoni knew he was being asked to inform 

Copley of Houle's role in order to clear the way for Houle to 

deposit the check; thus it remains unclear what additional 

information about Houle, if any, Téllez-Bortoni had a duty to 

convey to Copley.

11 Nor is it evident how Copley's damages from 

 

11 Nor has Copley established as undisputed that, had it 

been told of the additional information it asserts TéllezBortoni misleadingly omitted, it would have stopped Houle from 
12

its reliance on Téllez-Bortoni's statement about Houle could 

exceed the misused $452,460 "Landlord's Contribution" and thus 

justify the entire verdict of $865,060.44 returned by the jury.

In sum, whether Téllez-Bortoni's statement to Copley about Houle 

constituted fraud and justified the judgment requires further 

development on remand.

12

Conclusion. The order granting partial summary judgment on 

liability against Téllez-Bortoni is vacated. The judgment 

against Téllez-Bortoni entered September 24, 2015, Paragraph 3 

of the Consolidated Final Judgment entered October 16, 2015, and 

the order denying the motion for JNOV are vacated. The jury 

verdict on damages is set aside, and the case is remanded for 

further proceedings consistent with this opinion.

So ordered.

 

negotiating the check and then altered its relationship with 

IPG.

12 Although reliance is not a necessary element of a G. L. 

c. 93A claim, see Giuffrida v. High Country Investor, Inc., 73 

Mass. App. Ct. 225, 240–241 & n.16 (2008) (adding that causation 

remains an essential element), the parties' arguments on appeal 

treat Copley's G. L. c. 93A claim as dependent on the success of 

its fraud claim, or at least on a claim of negligent 

misrepresentation. Both fraud and negligent misrepresentation 

claims require proof of detrimental reliance. See Masingill v.

EMC Corp., 449 Mass. at 540; DeWolfe v. Hingham Centre, Ltd., 

464 Mass. 795, 799-800 (2013). Because that has not been shown 

on this record, and because Copley has not argued that its G. L. 

c. 93A claim is separately viable (an issue on which we express 

no view), we vacate the G. L. c. 93A liability ruling as well.