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SJC-13405

COLUMBIA PLAZA ASSOCIATES vs. NORTHEASTERN UNIVERSITY.

Suffolk. October 2, 2023. - February 29, 2024.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, 

& Georges, JJ.1

"Anti-SLAPP" Statute. Redevelopment Authority. Practice, 

Civil, Motion to dismiss, Summary judgment, Retroactivity 

of judicial holding, Fraud, Attorney's fees. Contract, 

Construction contract, Performance and breach, Implied 

covenant of good faith and fair dealing, Unjust enrichment, 

Promissory estoppel. Constitutional Law, Right to petition 

government. Unlawful Interference. Unjust Enrichment. 

Declaratory Relief. Consumer Protection Act, Unfair or 

deceptive act. Fraud. Frauds, Statute of.

Civil action commenced in the Superior Court Department on 

December 15, 2020.

A special motion to dismiss or, in the alternative, a 

motion to dismiss and a motion for summary judgment were heard 

by Rosemary Connolly, J.; a motion for attorney's fees was heard 

by Jackie A. Cowin, J., and entry of judgment was ordered by 

her.

The Supreme Judicial Court granted an application for 

direct appellate review.

1 Justice Lowy participated in the deliberation on this case 

prior to his retirement.
2

Henry F. Owens, III (Richard K. Latimer & Robert Patrick 

Cooper also present) for the plaintiff.

Daryl J. Lapp (Elizabeth H. Kelly also present) for the 

defendant.

The following submitted briefs for amici curiae:

Robert S. Mantell, Audrey Richardson, & Emma Hornsby for 

Massachusetts Employment Lawyers Association & others.

Robert C. Ross for NAIOP Massachusetts, Inc.

Jeffrey J. Pyle for New England First Amendment Coalition.

Mark S. Furman & Emily C. Shanahan for JACE Boston, LLC, 

& another.

Ruth A. Bourquin for American Civil Liberties Union of 

Massachusetts, Inc.

KAFKER, J. This case is before us after a judge in the 

Superior Court allowed Northeastern University's

(Northeastern's) special motion to dismiss various claims, 

pursuant to G. L. c. 231, § 59H, and otherwise dismissed or 

entered summary judgment in favor of Northeastern on the 

plaintiff's remaining claims arising out of plans to develop a 

disputed parcel of land. We conclude that all the claims were 

properly dismissed. We also analyze the judge's ruling on the 

special motion to dismiss using a revised framework for 

assessing such motions under § 59H, known more commonly as the 

anti-SLAPP statute. That revised framework, and the reasons 

necessitating such revision, have been set out in detail in a 

companion opinion issued today. See Bristol Asphalt Co. v. 

Rochester Bituminous Prods., Inc., 493 Mass. (2024) (Bristol 

Asphalt). Applying this framework, and upon consideration of 

the remaining issues before us on appeal, we affirm.
3

1. Background. a. Facts.2 i. Linkage program. In the 

late 1980s, the city of Boston (city), through the Boston 

Redevelopment Authority (BRA), created a "Parcel-to-Parcel 

Linkage Program" (linkage program) to develop land in its

Roxbury section. The linkage program sought to promote urban 

revitalization and to increase opportunities for minority 

participation in development by "linking" two parcels of 

property -- i.e., development of a profitable downtown property 

was linked to the development of property in Roxbury considered 

to be less commercially attractive. A development team, with a 

required minority partner, was to be selected by the BRA. An

area identified for development in Roxbury, designated as parcel 

18 and consisting of five subparcels (18-1A, 18-1B, 18-2, 18-3A, 

and 18-3B), is at the heart of the instant dispute.

ii. 1991 agreement and foreclosure. The plaintiff, 

Columbia Plaza Associates (CPA), was formed for the purpose of 

participating in the linkage program and developing parcel 18. 

In 1991, CPA entered into a sale and construction agreement with 

2 On appeal from a grant of a special motion to dismiss, we 

state the facts as set forth in the pleadings and affidavits 

before the trial court. See North Am. Expositions Co. Ltd. 

Partnership v. Corcoran, 452 Mass. 852, 854 & n.5 (2009). Here, 

because the plaintiff moved for summary judgment in response to 

the defendant's special motion to dismiss, and the court 

considered all the parties' pleadings and documentary evidence 

in ruling on both the special motion to dismiss and the motions 

for summary judgment, we do the same on appeal.
4

the BRA (1991 agreement) in which the BRA agreed to sell and CPA 

agreed to buy parcel 18 or certain subparcels thereof as 

designated by CPA and approved by the BRA, and CPA agreed to 

develop the land according to a master development plan approved 

by the BRA and the city's zoning commission.3 Specifically, 

under the 1991 agreement, CPA was to inform the BRA of its 

desire to develop and purchase a particular subparcel. After 

providing notice, CPA was then supposed to "proceed in good 

faith and with all reasonable efforts" to satisfy the various 

conditions imposed on the sale and development under the 1991 

agreement, including submission and approval of a development 

plan.

Under the 1991 agreement, CPA was allowed to mortgage the 

subparcels to secure debt related to their acquisition and

development. A party acquiring parcel 18 in foreclosure was 

limited to the three following options: (1) complete 

construction on the subparcels in compliance with the 

requirements of the 1991 agreement, (2) sell title to the 

subparcels to a purchaser who would assume all "covenants, 

agreements and obligations of [CPA]" under the 1991 agreement, 

3 CPA formed a joint venture with another entity for the 

purpose of developing the subparcels. CPA is the successor in 

interest to this joint venture, and for simplicity, we shall 

refer to actions or obligations undertaken by the joint venture 

as being undertaken by CPA.
5

or (3) reconvey fee simple title to the subparcels to the BRA. 

CPA obtained a mortgage on parcel 18 and built an office 

building on subparcel 18-1B. For a short time, this building 

housed the registry of motor vehicles. However, by the mid1990s, the registry had vacated this location and the building 

was condemned. CPA's mortgage was foreclosed upon, and an 

affiliate of CPA's lender acquired parcel 18 in a foreclosure 

sale. Northeastern subsequently purchased the land from this

affiliate in November 1997. The quitclaim deed conveying parcel 

18 to Northeastern also conveyed the affiliate's "rights arising 

under [the 1991 agreement], between [the BRA] and [CPA]," and 

provided that Northeastern would "assume the obligations set 

forth in [the 1991 agreement]." 

iii. 1999 agreement. On June 30, 1999, the BRA, CPA, and 

Northeastern executed a "Second Amended and Restated Sale and 

Construction Agreement" (1999 agreement). The 1999 agreement 

expressly rendered the 1991 agreement "null and void and of no 

further force and effect." The 1999 agreement also stated that 

Northeastern intended "individually and/or through an affiliated 

entity of Northeastern meeting the definition of 'Developer'" to 

develop parcel 18. The 1999 agreement defined "Developer" to 

mean "Northeastern or an affiliated entity of Northeastern, 

specifically including coventures with CPA, designated by 

Northeastern to develop the applicable phase." The subparcels, 
6

referred to as "Phase Parcels," were designated for separate 

development from one another, with subparcel 18-2 selected for 

the construction of a parking garage (garage parcel), and the 

remaining subparcels intended for the construction of buildings.

Additionally, the parties agreed in 1999 to enter into a 

joint venture to acquire the garage parcel (second 1999 

agreement). The second 1999 agreement also contained a 

provision whereby the parties agreed to enter into a joint 

venture agreement to develop a new building on subparcel 18-3A. 

Any such joint venture agreement was to be executed by the 

parties no later than six months after the closing date of the 

second 1999 agreement or a later date if the parties mutually 

agreed on an extension. However, the parties never executed any 

such joint venture agreement within the six-month period and did 

not agree to extend the deadline. 

iv. 2007 development plan. Over the next six years 

following the 1999 agreement, the parties explored the 

possibility of developing together a hotel on subparcel 18-3A, 

including hiring an outside firm to assess its economic 

feasibility. However, the parties never entered into any formal 

agreement and, in 2007, Northeastern, in consultation with CPA 

and the BRA, abandoned plans to develop a hotel or other 

commercial building on subparcel 18-3A. CPA agreed to the 

removal of subparcels 18-3A and 18-3B from the development plans 
7

so that Northeastern could build a dormitory on those 

subparcels. In turn, Northeastern agreed to seek to develop a 

hotel on subparcel 18-1A "in partnership" with CPA. Thereafter, 

Northeastern and the BRA executed a new development plan (2007 

development plan). The 2007 development plan stated that 

"Northeastern University in partnership with [CPA] . . . intends 

to proceed with construction on [subparcel 18-1A] (currently 

anticipated for use as a hotel)." The 2007 development plan 

also formalized the removal of subparcels 18-3A and 18-3B from 

the master development plan and the linkage program.

Between 2006 and 2008, the parties discussed development of 

a hotel on subparcel 18-1A. After several months of silence 

from CPA in 2008, Northeastern sent a letter to CPA on March 26, 

2008, seeking to reinitiate discussions. CPA responded on April 

2, 2008, stating that it intended to review the appropriate 

documents in order to foster an "informed dialogue." On May 14, 

2008, Northeastern sent a letter to follow up with CPA, noting 

that while CPA's previous correspondence had indicated readiness 

to discuss the project in "two to three weeks," CPA had yet to 

respond to Northeastern's request to meet, and that, "despite 

repeated attempts," Northeastern had had "no substantive 

discussions" with anyone from CPA in the preceding five months. 

Nearly one year later, in March 2009, Northeastern 

communicated to CPA that while the economic situation had 
8

deteriorated, raising concerns about the financial viability of 

the hotel project, Northeastern remained "dedicated to following 

through on its commitment to . . . proceed with the development 

of a hotel on Parcel 18." Northeastern also noted the 

possibility of obtaining funding for the hotel project and 

requested a meeting to discuss financing. Afterward, 

communications between Northeastern and CPA fell silent. 

v. Subsequent court proceedings. In 2013, CPA filed suit

against Northeastern, raising various contractual and other 

claims arising out of allegations that Northeastern was 

contractually required to work with CPA in any development of 

subparcels 18-3A and 18-3B and that Northeastern's decision to 

build a dormitory on those parcels wrongfully deprived CPA of 

its development rights (2013 litigation). CPA asserted that 

Northeastern had concealed its intentions and falsely 

represented to the BRA that it remained in partnership with CPA 

in order to obtain the necessary BRA approvals for construction 

of the dormitory. After a trial, a judge in the Superior Court

entered judgment for Northeastern. On appeal, the Appeals Court

affirmed the decision of the trial judge, and this court denied 

CPA's application for further appellate review. See Columbia 

Plaza Assocs. v. Northeastern Univ., 93 Mass. App. Ct. 1113 

(2018).
9

On May 9, 2017, CPA sent a letter to the BRA's successor, 

the Boston Planning and Development Administration (BPDA), 

demanding that it "compel Northeastern to present CPA with a 

joint venture for [subparcel 18-1A, i.e., the proposed hotel 

project], to provide a significant return to CPA, as 

Northeastern . . . clearly will not do [so] on its own 

initiative." On May 25, 2017, Northeastern sent a letter to the 

BPDA denying CPA's claims. Northeastern asserted that it owned 

all of parcel 18, including "all of the development rights" and 

that CPA did not own any "development rights in Parcel 18 or any 

of its sub-parcels." In support, Northeastern pointed to the 

trial judge's decision in the 2013 litigation, arguing that she 

had ruled that "CPA does not have -- and never had -- any actual 

'development rights' in relation to" subparcel 18-3A or 18-1A.

In June 2019, CPA contacted Northeastern about developing a 

hotel on subparcel 18-1A, but Northeastern rejected CPA's 

outreach, again claiming CPA had no interest of any kind in 

subparcel 18-1A. In November 2019, Northeastern notified the 

BPDA of its intent to develop subparcel 18-1A for its own use. 

b. Procedural history. In December 2020, CPA commenced

the instant suit against Northeastern, alleging breach of

contract (counts I and II), breach of the implied covenant of 

good faith and fair dealing (count III), interference with 

advantageous economic relations (count IV), unjust enrichment 
10

(count V), commercial fraud (count VI), and unfair or deceptive 

acts in violation of G. L. c. 93A, § 11 (counts VII and VIII), 

and seeking declaratory and injunctive relief (counts IX and X, 

respectively). Northeastern filed a special motion to dismiss 

pursuant to G. L. c. 231, § 59H, or, in the alternative, a 

motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 

754 (1974). CPA in turn moved for partial summary judgment on

counts I, II, III, VII, and VIII. A judge in the Superior Court

(motion judge) allowed Northeastern's special motion to dismiss 

under § 59H, with respect to CPA's claims of fraud, as well as 

CPA's claims of unfair or deceptive acts in violation of G. L. 

c. 93A, § 11, insofar as those counts were based on allegations 

of misrepresentations by Northeastern to the BPDA. The motion 

judge denied the special motion to dismiss as to all remaining 

counts, but allowed Northeastern's motion to dismiss, pursuant 

to rule 12 (b) (6), as to CPA's claims for interference with 

advantageous economic relations, unjust enrichment, declaratory 

judgment, and injunctive relief. The motion judge granted 

summary judgment in favor of Northeastern on all remaining 

claims.4 CPA appealed, and we accepted this case on direct 

appellate review.

4 In its opposition to CPA's motion for partial summary 

judgment, Northeastern requested that the court enter summary 

judgment in favor of Northeastern on the counts at issue. With 
11

2. Special motion to dismiss. a. Simplified anti-SLAPP 

framework. In Bristol Asphalt, 493 Mass. at , also issued 

today, we have simplified and clarified the existing framework 

for assessing special motions to dismiss filed under G. L. 

c. 231, § 59H, the so-called anti-SLAPP statute, and explained 

in detail our reasons for doing so.

Under the first stage of this revised framework, the

special motion proponent has a threshold burden to show that the

challenged claim is based solely on the proponent's exercise of 

its right to petition, with no "substantial basis other than or 

in addition to the petitioning activities implicated." 

Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167 

(1998). As we clarify today in Bristol Asphalt, 493 Mass. 

at , we no longer parse the factual basis for a claim to 

determine if some portion of the claim could independently 

support the asserted cause of action, so as to permit partial 

dismissal of the claim under Blanchard v. Steward Carney Hosp., 

Inc., 477 Mass. 141, 155-156 (2017) (Blanchard I), S.C., 483 

Mass. 200 (2019). Rather, if the special motion proponent 

cannot demonstrate that the claim is based solely on the 

the parties' agreement, the motion judge ruled on these counts 

using a summary judgment standard.
12

proponent's own petitioning activity, the special motion must be 

denied.5

If, however, the claim is based solely on the special 

motion proponent's petitioning activity, the burden shifts to 

the special motion opponent. See G. L. c. 231, § 59H, first

par. To defeat the motion at this second stage, the special 

motion opponent must show by a preponderance of the evidence

that the special motion proponent's petitioning activity (1) was 

devoid of any reasonable factual support or any arguable legal 

basis; and (2) caused the special motion opponent actual injury. 

See id. If the special motion opponent makes both showings, the 

special motion is denied. Otherwise, the special motion is 

allowed.

As we explain in Bristol Asphalt, 493 Mass. at , we 

abandon the "second path" for defeating the special motion, 

which allowed a special motion opponent to prevail by

demonstrating that its claims were "colorable" and had not been 

raised for the primary purpose of chilling the special motion 

proponent's legitimate petitioning activity. See Blanchard I, 

477 Mass. at 159-161. Additionally, as we also clarify in our 

5 This revision to the existing anti-SLAPP framework is 

particularly relevant in the instant case as the motion judge 

employed such analysis to dismiss the portion of the G. L. 

c. 93A claims that were based solely on petitioning activity.
13

companion opinion, a ruling on a special motion to dismiss is 

subject to de novo review on appeal.

b. Applicability of simplified anti-SLAPP framework to 

instant case. As an initial matter, we address whether the 

simplified anti-SLAPP framework that we set forth today applies 

to the instant case. When this court construes a statute, our 

holding is presumptively given retroactive application, although 

we retain discretion to apply the rule prospectively in limited 

circumstances. See McIntire, petitioner, 458 Mass. 257, 261

(2010), cert. denied, 563 U.S. 1012 (2011) ("Where a decision 

does not announce new common-law rules or rights but rather 

construes a statute, no analysis of retroactive or prospective 

effect is required because at issue is the meaning of the 

statute since its enactment"); Mouradian v. General Elec. Co., 

23 Mass. App. Ct. 538, 542 n.3 (1987), quoting 1 K.C. Davis, 

Administrative Law Treatise § 5.09 (1958) (Davis) ("If an 

interpretative rule is merely an interpretation of a statute, 

and if the meaning of the statute has been there from the time 

of its original enactment, then no problem of a retroactive 

interpretative rule can arise, for either the interpretative 

rule expresses the true meaning of the statute or it does not; 

if it does, then that is what the statute has always meant and 

the rule has not changed the law"). See also Eaton v. Federal 

Nat'l Mtge. Ass'n, 462 Mass. 569, 587-588 (2012) (explaining 
14

presumption of retroactive application, with prospective-only

application being reserved for exceptional circumstances).

Our holding today is intended to "give effect to the clear 

meaning of a statute," a meaning that has not changed for these 

purposes since its original enactment. Dellorusso v. PNC Bank, 

N.A., 98 Mass. App. Ct. 84, 87 (2020). See Davis, supra. This

"purpose is best accomplished through retroactive application." 

Dellorusso, supra at 87-88. In today's decision, we also return 

to the framework that governed special motions to dismiss for 

twenty years, until our holding in Blanchard I. Thus we are 

returning to an earlier interpretation, rather than developing a 

brand new one, limiting any possible disruptive effect of 

imposing the change at issue. Accordingly, the simplifications 

to our existing anti-SLAPP framework, set forth in Bristol 

Asphalt, 493 Mass. at , also issued today, are applicable to 

cases in which an anti-SLAPP motion or appeal remains pending as 

of this court's issuance of the rescript in Bristol Asphalt. 

i. Stage one: Northeastern's threshold burden. Applying 

the simplified anti-SLAPP framework, Northeastern had a 

threshold burden to show that the claims at issue were based 

solely on Northeastern's exercise of its right of petition, as 

defined in G. L. c. 231, § 59H. Northeastern contended that all 

of CPA's claims were based solely on Northeastern petitioning 

the BPDA to unilaterally develop subparcel 18-1A. However, the 
15

alleged factual basis for most of CPA's claims was not solely

Northeastern's petitioning of the BPDA, but the existence of 

contractual agreements between the parties. That is, the 

alleged conduct that gave rise to CPA's claims sounding in 

contract was Northeastern's decision to enter into agreements 

with CPA, and then act in violation of CPA's alleged rights 

under those agreements. See Duracraft Corp., 427 Mass. at 165

("Many preexisting legal relationships may properly limit a 

party's right to petition, including enforceable contracts in 

which parties waive rights to otherwise legitimate 

petitioning"). Accordingly, the motion judge properly found 

that Northeastern failed to meet its threshold burden as to the 

claims for breach of contract (counts I and II), breach of the 

implied covenant of good faith and fair dealing (count III), 

interference with advantageous economic relations (count IV), 

unjust enrichment (count V), and declaratory and injunctive 

relief (counts IX and X), as each of these claims was based on 

preexisting contractual agreements, not solely communications 

with the BPDA. See id. at 168 (nondisclosure agreement 

constituted substantial basis other than defendant's petitioning 

activity to support breach of contract claims).

The motion judge, however, distinguished CPA's claims for 

unfair or deceptive acts in violation of G. L. c. 93A, § 11,

which are based upon both the allegation that Northeastern 
16

petitioned the BPDA in violation of CPA's alleged contractual 

rights, as well as the allegation that Northeastern

"misrepresent[ed] to the BPDA that CPA's rights on [subparcel]

18-1A were extinguished." The motion judge analyzed the c. 93A 

claims under each theory of liability, in order to determine 

whether a portion of either claim was based solely on 

Northeastern's petitioning activity, in accord with the 

augmented framework set forth in Blanchard I, 477 Mass. at 143 

(holding that defendant may meet threshold burden as to portion

of claim that is based solely on petitioning activity).

Applying this augmented framework, the motion judge 

determined that Northeastern was entitled to dismissal of these 

claims in part. However, under the simplified anti-SLAPP 

framework we adopt today, such parsing analysis is not 

appropriate. Because a substantial factual basis for the c. 93A 

claims was the allegation that Northeastern acted in violation 

of its contractual agreements with CPA, Northeastern failed to 

meet its threshold burden of showing that these claims are based 

solely on its petitioning activity. Accordingly, the special 

motion to dismiss should have been denied as to both c. 93A 

claims.6

6 Although we do not join in the conclusion reached by the 

motion judge that Northeastern was entitled to dismissal under 

G. L. c. 231, § 59H, as to a portion of the c. 93A claims, we 
17

Finally, we address CPA's remaining claim for "commercial 

fraud." Unlike the counts described above, this claim appears 

to be based entirely on the allegation that Northeastern 

"false[ly] represent[ed] to the BPDA that a Superior Court judge 

found that CPA has no remaining development rights on Parcel 

18," in reference to the outcome of the 2013 litigation

concerning subparcel 18-3A. Because this allegation relied on a 

written statement that Northeastern submitted to a governmental 

agency, the BPDA, it constituted petitioning activity. See 

G. L. c. 231, § 59H, sixth par. (defining petitioning activity 

to include "any written or oral statement made before or 

submitted to a legislative, executive, or judicial body, or any 

other governmental proceeding"). See also North Am. Expositions 

Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862 (2009), and 

cases cited (statements made to governmental bodies need not be 

made within context of formal government proceedings to 

constitute petitioning activity). Thus, Northeastern met its 

threshold burden, as the special motion proponent, with respect

to count VI of CPA's complaint.

ii. Stage two: CPA's burden. For count VI, the burden 

then shifted to CPA, the party opposing the special motion, to 

show that Northeastern's petitioning activity (1) was devoid of 

nonetheless affirm the entry of judgment in favor of 

Northeastern on these claims, for reasons detailed infra.
18

any reasonable factual support or any arguable legal basis; and 

(2) caused CPA actual injury. See G. L. c. 231, § 59H. Here, 

CPA focused on a passage toward the end of Northeastern's 

letter, which, after summarizing the 2013 litigation, stated 

that, "as the Superior Court has ruled, CPA does not have -- and 

never had -- any actual 'development rights' in relation to 

[subparcel] 18-3A or 18-1A." 

Far from being "devoid" of reasonable support, 

Northeastern's statement was squarely supported by the judge's 

ruling in the 2013 litigation. Although the 2013 litigation 

concerned whether CPA's "rights" to parcel 18 had been 

extinguished in subparcel 18-3A specifically, and not 18-1A, the 

judge defined the nature of CPA's "rights" as follows: "they 

were not much better than a fishing license: they essentially 

gave CPA the opportunity to become a developer on a project 

provided that it met the BRA's rigorous prerequisites, which 

included a demonstration that it had a specific and economically 

feasible development plan" (emphasis in original). 

Northeastern's letter stated that CPA did not have "any actual 

'development rights'" to subparcel 18-1A because its "rights"

amounted to no more than an opportunity to participate as a 

developer in the event that certain prerequisites were met, 

effectively paraphrasing the above-quoted language from the 
19

judge's decision. Accordingly, we affirm the allowance of the 

special motion to dismiss count VI of CPA's complaint.

3. Adjudication of remaining claims. The motion judge 

disposed of CPA's remaining claims by ruling on Northeastern's 

motion to dismiss for failure to state a claim and the parties'

cross motions for summary judgment. On appeal, both types of 

motions are subject to de novo review. See Santos v. U.S. Bank

Nat'l Ass'n, 89 Mass. App. Ct. 687, 691 (2016). Where, as here, 

both parties have moved for summary judgment, see note 4, supra, 

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

against whom judgment was entered -- here, CPA -- to determine 

whether all material facts have been established such that the 

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

v. Middleborough, 468 Mass. 260, 267 (2014). See Abrahamson v. 

Estate of LeBold, 89 Mass. App. Ct. 223, 225 (2016) (applying 

standard of review applicable to summary judgment where motion 

to dismiss was converted to motion for summary judgment).

a. Count I -- breach of 1999 agreement. CPA's first 

breach of contract claim is based upon its contention that 

Northeastern committed a breach of the 1999 agreement by 

rejecting CPA's request to develop subparcel 18-1A in June 2019 

and notifying the BPDA of Northeastern's intent to develop that 

subparcel for its sole institutional use. We review the record 

in the light most favorable to CPA. That record nonetheless
20

reveals that after the 1999 agreement, CPA lost development 

rights in all the subparcels, except for the right to develop 

the garage parcel. 

To prevail on a claim for breach of contract, a plaintiff 

is required to demonstrate that "there was an agreement between 

the parties; the agreement was supported by consideration; the 

plaintiff was ready, willing, and able to perform his or her 

part of the contract; the defendant committed a breach of the 

contract; and the plaintiff suffered harm as a result." Bulwer

v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016). To determine 

the intent of contracting parties, we consider the "words used 

by the parties, the agreement taken as a whole and the

surrounding facts and circumstances." MCI WorldCom 

Communications, Inc. v. Department of Telecomm. & Energy, 442 

Mass. 103, 112 (2004). If the words of a contract are clear, 

they are dispositive as to the meaning of the contract. See 

EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016). 

Section 102(r) of the 1999 agreement states that "for every 

Phase, the Developer shall be Northeastern or an affiliated 

entity of Northeastern, specifically including coventures with 

CPA, designated by Northeastern to develop the applicable Phase 

. . . . It is hereby agreed that the Developer of the Garage 

Parcel shall be the Northeastern/CPA Venture." While this 

language provides CPA with the right to develop the garage 
21

parcel with Northeastern, it does not grant CPA development 

rights in any of the other subparcels. Rather, the 1999 

agreement specifies that Northeastern "shall be" the developer 

for every subparcel and that Northeastern may designate an 

affiliated entity, specifically including CPA, as a developer

for the other subparcels. 

If the parties intended to make CPA a codeveloper for every 

subparcel, the language in § 102(r) allowing Northeastern to 

"designate" CPA as a developer and agreeing that Northeastern 

and CPA "shall be" the garage parcel developers would be 

superfluous. Gibraltar Fin. Corp. v. Lumbermens Mut. Cas. Co., 

400 Mass. 870, 872 (1987) ("It is a standard rule of 

construction that interpretations which result in meaningless 

words are to be avoided").

Moreover, the 1999 agreement extinguished any remaining 

rights in parcel 18 that CPA might have had under the 1991 

agreement. Section 101 of the 1999 agreement states that the 

1991 agreement is "null and void and of no further force and 

effect." The intent of § 101 is unambiguous: the 1991 

agreement is no longer in force and the parties' rights and 

obligations are now governed by the 1999 agreement. 

CPA nonetheless argues that language in the preamble 

reveals an intent to amend and restate the 1991 agreement, thus 

incorporating CPA's development rights under the 1991 agreement 
22

into the 1999 agreement: "the [BRA], Northeastern and CPA wish 

to further amend and restate the terms of the Original Sale 

Agreement and Original Amended Sale Agreement as set forth 

herein." While recitals may assist us in interpreting the body 

of the 1999 agreement, they do not create enforceable rights in 

and of themselves. See Cullinet Software, Inc. v. McCormack & 

Dodge Corp., 400 Mass. 775, 776 n.1 (1987). Here, the general 

language contained in the preamble is undercut by the more 

specific statement in § 101 that the 1991 agreement is null and 

void. 

CPA also posits that § 302 of the 1999 agreement gave it 

veto rights over development on all of parcel 18. Section 302 

refers to the "Master Plan and the . . . Development Plan for 

each Phase [(i.e., the development plans for each subparcel)], 

as they may be amended and revised by the agreement of the 

parties thereto." CPA reads this as requiring that Northeastern 

obtain agreement of all the parties to the 1999 agreement (i.e.,

both CPA and the BRA) before making changes to the development 

plans for any of the subparcels. Thus, CPA would have a veto 

right over the development of subparcel 18-1A, even if the 1999 

agreement extinguished its development rights. A more sensible

reading is that Northeastern must get agreement from the parties 

to each individual development plan for any modifications to 

that development plan. As CPA was only designated as a 
23

"Developer" for the garage parcel, Northeastern only needed 

CPA's permission to make changes to the development plan for the

garage parcel. CPA's position is further undermined by the fact 

that the 1999 agreement reserves Northeastern's right to amend 

the master development plan and submit a new development plan, 

subject to approval by the BRA and the city's zoning commission. 

Nowhere in this section is CPA's approval required or discussed. 

"[A]n unambiguous agreement must be enforced according to 

its terms." Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 

706 (1992). By its terms, the 1999 agreement states that (1) 

the 1991 agreement, including any development rights conferred 

to CPA, was rendered "null and void," and (2) except for the 

garage parcel, CPA did not have any development rights in parcel 

18. Therefore, Northeastern did not commit a breach of the 1999 

agreement by seeking to unilaterally develop subparcel 18-1A and 

the Superior Court correctly granted summary judgment on count I 

in Northeastern's favor. 

b. Count II -- breach of 2007 agreement. CPA's second 

breach of contract claim centers around its assertion that 

Northeastern's attempt to unilaterally develop subparcel 18-1A 

violated an unwritten agreement between the parties in 2007

(2007 agreement), in which CPA surrendered its rights in 

subparcels 18-3A and 18-3B in exchange for development rights on 

subparcel 18-1A. CPA appears to find proof of the 2007 
24

agreement in the 2007 development plan, in which Northeastern 

removed subparcels 18-3A and 18-3B from the original development 

plan and stated its intent to develop a hotel on subparcel 18-1A

"in partnership" with CPA. CPA's second breach of contract 

claim also fails.

Viewed in the light most favorable to CPA, CPA had no 

contractual rights in subparcel 18-1A. The parties had 

previously discussed possible projects on various subparcels, 

including subparcels 18-3A and 18-3B, but none of these 

discussions ever ripened into a final, written agreement. As of 

2007, the parties had conducted some preliminary discussions 

around developing a hotel on subparcel 18-3A. When Northeastern 

decided to develop a dormitory on subparcels 18-3A and 18-3B, it 

appears the parties agreed to shift the possible hotel 

development to subparcel 18-1A. Again, the record indicates 

that, for a time, both parties engaged in some discussions 

around developing a hotel but failed to reach an agreement that 

would give CPA enforceable rights. Nothing in the record 

indicates that Northeastern ever agreed to a binding commitment 

to build a hotel on subparcel 18-1A. Cf. Mendel Kern, Inc. v. 

Workshop, Inc., 400 Mass. 277, 280-281 (1987) (letter of intent 

to enter into lease was not binding promise because it merely 

expressed "intention to do something" at future date). 

Therefore, CPA had no contractual rights to subparcel 18-1A and 
25

Northeastern was under no binding obligation to build a hotel 

with CPA on subparcel 18-1A. 

Moreover, any oral agreement would be unenforceable under 

the Statute of Frauds. See G. L. c. 259, § 1. Nor could the 

2007 development plan render a verbal agreement enforceable, as 

it was not signed by either Northeastern or CPA. See id.

(agreement must be "in writing and signed by the party to be 

charged therewith or by some person thereunto by him lawfully 

authorized"). 

The 2007 development plan similarly does not "contain 

directly, or by implication, all of the essential terms of the 

parties' agreement." See Simon v. Simon, 35 Mass. App. Ct. 705, 

709 (1994) (holding lease agreement did not satisfy Statute of 

Frauds where it failed to define lease duration). It states 

that Northeastern, in partnership with CPA, 

"intends to proceed with construction on [subparcel 18-1A] 

(currently anticipated for use as a hotel) as contemplated 

by the [2007] Development Plan, continuing the 

revitalization of the development now known as Renaissance 

Park. The purpose of this Development Plan is to remove 

[subparcels 18-3A and 18-3B] . . . from the Development 

Area and to rescind the Master Plan, prior to proceeding 

with development on [subparcel 18-1A]."

While this suggests the outline of a possible agreement, the 

2007 development plan itself is at most a statement of intent. 

See Schwanbeck, 412 Mass. at 706-707 ("[a] promise made with an 

understood intention that it is not to be legally binding, but 
26

only expressive of a present intention, is not a contract"

[citation omitted]). 

Indeed, the references to "proposed" actions and 

"anticipated uses," and the use of the future tense throughout, 

suggest an intent to set forth preliminary terms that were to be 

finalized at a later date. Mendel Kern, Inc., 400 Mass. at 279

(statements in future tense of actions to be taken indicative of 

future contractual intent, not existence of current agreement). 

While a valid contract may be "contingent on future events," the 

contract must "provide mechanisms to narrow present 

uncertainties to rights and obligations." Lafayette Place 

Assocs. v. Boston Redev. Auth., 427 Mass. 509, 518 (1998), cert. 

denied, 525 U.S. 1177 (1999). Here, many aspects of the 

development are merely proposed and thus subject to change until 

approved by the BRA. Accordingly, it does not create a binding 

contract. Contrast id. (holding that agreement was enforceable, 

despite lack of firm purchase price, because agreement provided 

for pricing formula and "most of the information needed to 

complete that formula was available"). 

Nor can the 2007 agreement be enforced against Northeastern 

under the theory of promissory estoppel.7 Promissory estoppel 

7 CPA also argues, for the first time on appeal, that the 

2007 agreement can be enforced under the theory of judicial 

estoppel. By failing to raise this argument below, CPA has 
27

requires "(1) a representation intended to induce reliance on 

the part of a person to whom the representation is made; (2) an 

act or omission by that person in reasonable reliance on the 

representation; and (3) detriment as a consequence of the act or 

omission." Sullivan v. Chief Justice for Admin. & Mgt. of the 

Trial Court, 448 Mass. 15, 27-28 (2006), quoting Bongaards v. 

Millen, 440 Mass. 10, 15 (2003). A promissory estoppel claim 

"is equivalent to a contract action, and the party bringing such 

an action must prove all the necessary elements of a contract 

other than consideration." Rhode Island Hosp. Trust Nat'l Bank

v. Varadian, 419 Mass. 841, 850 (1995). However, as discussed 

above, both the 2007 agreement and the 2007 development plan are

statements of intent or agreements to negotiate, not unambiguous 

promises to develop property with CPA. See id. (rejecting

promissory estoppel claim where evidence failed to support 

finding that "'promise' in the contractual sense had been 

made").8 Nor does CPA point to facts in the record demonstrating 

waived it. See Carey v. New England Organ Bank, 446 Mass. 270, 

285 (2006).

8 To the extent CPA seeks to base its theory of promissory 

estoppel on Northeastern's position as articulated in the 2013 

litigation, it must also fail. The trial judge's decision in 

that case referenced Northeastern's position that CPA "has 

certain rights in connection with development of [subparcel 18-

1A] and does not seek any order that would extinguish them." As 

discussed supra, the trial judge characterized the nature of 

CPA's rights as "not much better than a fishing license." 
28

actions that it took in reliance on Northeastern's alleged 

promise to develop a hotel with CPA on subparcel 18-1A, or any 

detriment suffered as a result. Contrast Sullivan, 448 Mass. at 

28-29 (plaintiffs stated claim for promissory estoppel where 

they alleged that they had refrained from suing defendant in 

reliance on defendant's promises to address safety concerns in 

office building).

c. Count III -- breach of the implied covenant of good 

faith and fair dealing. We turn next to CPA's claim that 

Northeastern committed a breach of the implied covenant of good 

faith and fair dealing. "Every contract implies good faith and 

fair dealing between the parties to it" (citation omitted). 

Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 

(1991). However, the covenant does not create new rights and 

duties not already provided for in the contract. Ayash v. DanaFarber Cancer Inst., 443 Mass. 367, 385, cert. denied sub nom. 

Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005) ("The scope of 

the covenant is only as broad as the contract that governs the 

particular relationship"). Accordingly, because the 1999 and 

Acknowledging these rights in relation to subparcel 18-1A, 

without more, is not an unambiguous promise by Northeastern to 

develop a hotel on that parcel. Cf. Upton v. JWP Businessland, 

425 Mass. 756, 760 (1997) (rejecting plaintiff's estoppel 

argument on basis that no enforceable promise existed, where 

plaintiff asked about regular work hours, and was so informed,

but ultimately worked much later hours). 
29

2007 agreements did not create any contractual obligation for 

Northeastern to involve CPA in the development of subparcel 18-

1A, Northeastern's failure to do so cannot constitute a breach 

of the covenant of good faith and fair dealing. Contrast 

Anthony's Pier Four, Inc., supra at 471-473 (refusal to approve 

changes to developer's plan constituted breach of implied 

covenant where developer had already spent years working on 

development and approval was unreasonably withheld in order to 

extract more favorable concessions). 

d. Counts VII and VIII -- unfair or deceptive business 

practices in violation of G. L. c. 93A. We turn to CPA's claims 

that Northeastern violated G. L. c. 93A by unilaterally 

petitioning the BPDA to develop subparcel 18-1A for its own use 

and repudiating CPA's rights in that subparcel. General Laws 

c. 93A, § 2 (a), makes unlawful "[u]nfair methods of competition 

and unfair or deceptive acts or practices in the conduct of any 

trade or commerce." To determine whether conduct rises to the 

level of an unfair act or practice, courts look to the following 

factors: "(1) whether the conduct is within at least the 

penumbra of some common-law, statutory, or other established 

concept of unfairness; (2) whether it is immoral, unethical, 

oppressive, or unscrupulous; [and] (3) whether it causes 

substantial injury to consumers or other businesses" (quotation 

and citation omitted). H1 Lincoln, Inc. v. South Washington 
30

St., LLC, 489 Mass. 1, 14 (2022). Business conduct "in 

disregard of known contractual arrangements" and aimed at 

securing benefits for the breaching party is an unfair act or 

practice under G. L. c. 93A. Anthony's Pier Four, Inc., 411 

Mass. at 474, quoting Wang Lab., Inc. v. Business Incentives, 

Inc., 398 Mass. 854, 857 (1986). However, a mere refusal to 

deal, without more, is not an unfair trade practice. See PMP 

Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975).

Viewed in the light most favorable to CPA, the facts show 

no conduct by Northeastern that rises to the level of an unfair 

or deceptive practice. The record before us only establishes 

that Northeastern refused to deal with CPA after multiple 

unsuccessful attempts to advance the hotel project. See PMP 

Assocs., Inc., 366 Mass. at 596. And contrary to CPA's 

contention, this case is markedly dissimilar to Anthony's Pier 

Four, Inc., 411 Mass. at 453 n.3, 467-468, where the underlying 

contract clearly required that the landowner work with the 

developer on the development of the property. Here, 

Northeastern had no contractual obligation to involve CPA and 

thus did not act unfairly or deceptively in repudiating CPA's

claims. Nor did Northeastern use its refusal to deal to extract 

some sort of benefit from CPA. Contrast H1 Lincoln, Inc., 489 

Mass. at 15 (unfair trade practice where defendant provided

"pretextual and unreasonable grounds" for terminating lease and 
31

then offered to reinstate lease to extract financial concessions 

from plaintiff); Anthony's Pier Four, Inc., supra at 473.

Lastly, we consider whether Northeastern's characterization 

of the 2013 litigation in its letter to the BPDA constitutes a 

deceptive business act or practice. As discussed supra in our 

discussion of the special motion to dismiss, Northeastern's 

characterization was essentially accurate, and not a 

misrepresentation constituting deception in violation of G. L. 

c. 93A. See generally Aspinall v. Philip Morris Cos., 442 Mass. 

381, 394 (2004) (act or practice is deceptive if it possesses 

tendency to deceive). See also Nissan Autos. of Marlborough, 

Inc. v. Glick, 62 Mass. App. Ct. 302, 312 (2004) (lawyer's 

refusal to convey property under lease's purchase option was not 

"unfair or deceptive act" because "it was a prophylactic action 

taken in accordance with his earnestly held interpretation of 

the document and the law").

e. Count IV -- intentional interference with advantageous 

economic relationship. To succeed on a claim for intentional 

interference with advantageous relations, a plaintiff must prove

that

"(1) [it] had an advantageous relationship with a third 

party (e.g., a present or prospective contract or 

employment relationship); (2) the defendant knowingly 

induced a breaking of the relationship; (3) the defendant's 

interference with the relationship, in addition to being 

intentional, was improper in motive or means; and (4) the 

plaintiff was harmed by the defendant's actions."
32

 

Blackstone v. Cashman, 448 Mass. 255, 260 (2007). 

The improper means or motive required to support a claim 

for intentional interference is "actual malice" or "a spiteful, 

malignant purpose, unrelated to the legitimate corporate 

interest" (citations omitted). King v. Driscoll, 418 Mass. 576, 

587 (1994), S.C., 424 Mass. 1 (1996). "The motivation of 

personal gain, including financial gain, however, generally is 

not enough" to constitute improper motive. Id.

Here, the requirements are not satisfied. In particular,

CPA has identified no improper motive or means as required by 

our case law. Viewed in the light most favorable to CPA, the 

record establishes only that Northeastern acted in its own 

corporate self-interest when it sought to develop subparcel 18-

1A for its own institutional use after multiple unsuccessful 

attempts to advance the hotel project. This, without more, is 

not an improper means or motive. See King, 418 Mass. at 587.

See also Pembroke Country Club, Inc. v. Regency Sav. Bank, 

F.S.B., 62 Mass. App. Ct. 34, 39 (2004) (defendant's "legitimate 

advancement of its own economic interest" was not improper 

motive or means for purposes of tortious interference claim). 

Accordingly, CPA was not entitled to relief on this claim as a 

matter of law.
33

f. Count V -- unjust enrichment. CPA's claim for unjust 

enrichment similarly fails as a matter of law. Unjust 

enrichment is the "retention of money or property of another 

against the fundamental principles of justice or equity and good 

conscience" (citation omitted). Sacks v. Dissinger, 488 Mass. 

780, 789 (2021). A plaintiff must show that (1) he or she 

conferred a measurable benefit on the defendant, (2) he or she 

reasonably expected compensation from the defendant, and (3) the 

defendant accepted the benefit with knowledge of the plaintiff's 

reasonable expectation. Stewart Title Guar. Co. v. Kelly, 97 

Mass. App. Ct. 325, 335 (2020). 

CPA's unjust enrichment claim fails because the record does 

not establish a monetary or property benefit that CPA conferred 

on Northeastern. See Tedeschi-Freij v. Percy Law Group, P.C., 

99 Mass. App. Ct. 772, 780 (2021) (attorney's unjust enrichment 

claim, based on law firm's continued use of her name after she 

had departed firm, failed as matter of law where record 

contained no evidence that firm derived quantifiable benefit 

from continued use of name). Contrast Liss v. Studeny, 450 

Mass. 473, 479 (2008) (lawyer's competent representation of 

client in course of lawsuit conferred "measurable benefit" to 

client, notwithstanding fact that lawsuit was ultimately 

unsuccessful).
34

g. Counts IX and X -- declaratory and injunctive relief. 

CPA's complaint also requested entry of a judgment declaring

that Northeastern must include CPA on any development of 

subparcel 18-1A or otherwise compensate CPA for the value of 

such development, as well as an injunction mandating that 

Northeastern negotiate in good faith with CPA for payment of the 

"fair and reasonable value" of CPA's alleged development rights 

in subparcel 18-1A as a condition precedent to proceeding with 

its development application before the BPDA. Both counts fail 

as a matter of law because CPA has no development rights for 

which Northeastern must provide compensation. See School Comm. 

of Cambridge v. Superintendent of Sch. of Cambridge, 320 Mass. 

516, 518 (1946) (declaratory judgment available if party 

demonstrates it has "definite interest" in legal right denied by 

another). See also Woods v. Wells Fargo Bank, N.A., 733 F.3d 

349, 353 n.3 (1st Cir. 2013) (noting that injunctive relief is 

not stand-alone cause of action under Massachusetts law).

4. Attorney's fees. Finally, we address the issue of 

attorney's fees in light of CPA's contention that Northeastern 

should not have been awarded attorney's fees under G. L. c. 231, 

§ 59H, because this is not a "SLAPP suit." Where, as here, a 

judge allows a special motion to dismiss a plaintiff's claim, 

"[t]he judge has no discretion in deciding whether to award 

costs and fees." McLarnon v. Jokisch, 431 Mass. 343, 349–350 
35

(2000). Such an award is mandatory under the statute. See 

G. L. c. 231, § 59H. 

Because Northeastern was entitled to attorney's fees under 

the statute, and because CPA does not argue that the amount 

awarded was unreasonable, we do not consider the reasonableness 

of the award on appeal. See McLarnon, 431 Mass. at 349–350. In 

its brief, Northeastern has requested an award of appellate 

attorney's fees and costs as well. Because we affirm the ruling 

of the motion judge allowing the special motion to dismiss as to 

count VI, Northeastern is entitled to such an award. See Benoit

v. Frederickson, 454 Mass. 148, 154 (2009). Accordingly, within 

fourteen days of issuance of the rescript in this matter, 

Northeastern may file a petition for reasonable appellate 

attorney's fees and costs in accordance with the procedure set 

forth in Fabre v. Walton, 441 Mass. 9, 10–11 (2004). See O'Gara

v. St. Germain, 91 Mass. App. Ct. 490, 501 (2017).

5. Conclusion. We affirm the allowance of Northeastern's 

special motion to dismiss count VI of CPA's complaint. We also 

affirm the entry of partial summary judgment in favor of 

Northeastern on counts I, II, III, VII, and VIII, as well as the 
36

allowance of Northeastern's motion to dismiss counts IV, V, VI, 

IX, and X.9

Judgment affirmed.

9 Northeastern has moved to strike a letter that CPA filed 

after oral argument in this case. Because our decision does not 

rest on the contents of CPA's letter, we need not consider the 

motion. See Matter of the Discipline of an Attorney, 442 Mass. 

660, 674 n.29 (2004).