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13-P-1237 Appeals Court

FIRST BOSTONVIEW MANAGEMENT, LLC vs. BOSTONVIEW 

CORPORATION & others.1

No. 13-P-1237.

Norfolk. October 1, 2014. - August 19, 2015.

Present: Berry, Hanlon, & Carhart, JJ.

Charity. Corporation, Charitable corporation, Religious, Sale 

of assets, Officers and agents, Board of directors. Sale, 

Of corporate property, Real estate. Contract, Sale of real 

estate, Ratification. Real Property, Purchase and sale 

agreement. Agency, Ratification.

Civil action commenced in the Superior Court Department on 

November 13, 2009. 

The case was heard by Kenneth J. Fishman, J., on a motion 

for summary judgment, and a separate and final judgment was 

ordered by him.

David B. Summer (Elliot M. Sherman with him) for the 

plaintiff.

Carole C. Cooke (Nicholas B. Carter with her) for 

Bostonview Corporation.

1 Thomas J. Kennedy, individually and doing business as JMJ 

Nominee Trust, and Edward J. MacKenzie, Jr., individually and as 

trustee of and doing business as Courmac Realty Trust.

 
2

BERRY, J. The plaintiff, First Bostonview Management, LLC 

(First Bostonview), appeals from the judgment entered pursuant 

to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), after the 

allowance of the summary judgment motion by the defendant, 

Bostonview Corporation (Bostonview), a charitable corporation, 

on First Bostonview's claims stemming from its attempt to 

purchase substantially all of Bostonview's real property. We 

affirm the judgment. 

As is further discussed herein in more particularized 

detail, the corporate board of directors of a charity and the 

powers of corporate officers in a charitable organization, such 

as Bostonview, are subject to strict fiduciary standards in the 

conduct of the charity's business affairs. The Supreme Judicial 

Court has made clear that only specific authorization can bind a 

charitable corporation to an "extraordinary transaction" entered 

into by its corporate officers, and that authority to enter into 

a contract which would divest the charitable corporation "of the 

very essence" of its existence lies beyond the power of the 

charitable corporate board to delegate to corporate officers. 

Boston Athletic Assn. v. International Marathons, Inc., 392 

Mass. 356, 364-367 (1984). 

In this case, the sale of substantially all of the 

Bostonview church property (consisting of a church sanctuary, a 

parish meeting hall, a large apartment complex, offices, and 
3

parking spaces on prime land on Beacon Hill near the 

Massachusetts State House) was indisputably an "extraordinary 

transaction," and, if completed to the end would have stripped 

Bostonview of the very essence of its existence as a charitable 

corporation, organized "exclusively for religious, charitable, 

scientific and education purposes" subject to the holding of the 

church property and the collection of income from that property 

for the church. We conclude that the authority to make such a 

divesting asset/property sale contract in the case of Bostonview 

was beyond the power of the charitable corporate board to 

delegate to two of its officers. The contract was void. The 

"shady" nature of the underlying prenegotiations to sell the 

church's very valuable (but sole) asset for $30 million --

including combined cash payments of close to $100,000 to two of 

the executive officers, and the purchase of the $94,000 luxury 

car for the church secretary -- only serves to demonstrate why 

restrictions on "extraordinary transactions" must be closely

scrutinized by the charity's corporate board. Otherwise 

intemperate wrongful delegations and improper business deals may 

result, as here threatening the existence of the charity.

Background. We take the undisputed facts from the Superior 

Court judge's August 15, 2012, Memorandum of Decision and Order 

on Defendant Bostonview Corporation's Motion for Summary 

Judgment, which we supplement from the record, as noted. First 
4

Bostonview is a Massachusetts limited liability company managed 

by Michael Perry, a real estate developer with over forty years 

of experience. Roger J. Lehrberg, a real estate attorney, acted 

as a signatory for First Bostonview for real estate filings. 

The defendant Bostonview is a charitable corporation, 

incorporated in Delaware and registered in Massachusetts to do 

business on behalf of the Boston Society of New Jerusalem, Inc. 

(church). Bostonview was organized "exclusively for religious, 

charitable, scientific and education purposes with the specific 

object of holding title to properties and collecting the income 

therefrom and turning over the entire amount thereof, less 

expenses," to the church. The property at issue here is located 

at 130-140 Bowdoin Street, and includes 146 rental apartments, 

eighty-two parking spaces, offices, a religious sanctuary, and a 

parish meeting hall (church property). A 1978 amendment to 

Bostonview's certificate of incorporation included provisions 

allowing Bostonview to "enter into, perform, and carry out 

contracts of any kind necessary to, or in connection with, or 

incidental to, the accomplishment of the purposes of the 

corporation," and to "acquire any property real or personal 

. . . necessary for the construction and operation of such 

project." 

The defendant, Thomas J. Kennedy, served on Bostonview's 

board of directors from September 22, 2003, until July, 2005, 
5

and served as its president for a time starting on September 22, 

2003. The defendant, Edward J. MacKenzie, Jr., served as the 

treasurer of Bostonview, also starting on September 22, 2003, 

and served as the director of operations as well.2

On April 22, 2004, a purchase and sale agreement for the 

church property was signed by Kennedy, as president of 

Bostonview, by MacKenzie, as Bostonview's treasurer, and by 

Lehrberg, on behalf of First Bostonview. The agreement listed a 

purchase price of $30 million and acknowledged receipt of 

$50,000. It also provided that the purchaser could pay the 

balance of $29,950,000, with a note to the seller, secured by a 

purchase money mortgage. A closing was set for August 16, 2004, 

at the Suffolk County registry of deeds.

There is no record of the $50,000 deposit Perry claimed to 

have made to Bostonview. But Perry claims that in addition to 

that check, he made cash payments totaling $15,000 to Kennedy 

and MacKenzie personally, as well as paid $94,000 to purchase a 

Mercedes Benz for the church secretary. He also paid $10,000 to 

a trust set up for MacKenzie's daughter and $20,000 to a nominee 

trust set up by Kennedy. 

On August 16, 2004, the date scheduled for the closing, no 

one from Bostonview appeared. Kennedy and MacKenzie later told 

2 The dates that Kennedy and MacKenzie ceased to hold their 

respective offices are disputed.

 
6

Perry that the closing was delayed due to litigation, and that 

additional payments were needed to extend the closing. Perry 

paid another $60,000 to the aforementioned trusts.

According to the plaintiff, the parties subsequently 

entered into an exclusive option to purchase agreement, dated 

January 2, 2005 (2005 option). The document consists of a onepage letter, signed by Bostonview's then-president, John B. 

Burke. The 2005 option provided an expiration date of January 

2, 2008, but failed to state a purchase price, deposit amount, 

or the manner in which the purchaser was to exercise the option. 

A few weeks later, on January 23, 2005, a one-page document,

entitled Resolution by the Board of Trustees Boston Society of 

the New Jerusalem Inc. (2005 resolution), stated that First 

Bostonview was given the first option to purchase the property, 

for a purchase price of "30 million dollars, four apartments of 

the Church's choice, ten parking spaces on the top level and the 

space now occupied by the Church." Although the 2005 resolution 

expressly provided that it was only valid with the official 

church seal affixed, no seal appears on the document. The 

document shows the signatures of eight members of Bostonview's 
7

board of trustees, but four of those members claimed they did 

not actually sign it.3

A second option was executed on February 19, 2008, to 

expire December 31, 2008 (2008 option). It was signed by Perry 

and by Robert von Wolfgang, chairman of Bostonview's board of 

trustees, though Wolfgang denied he signed it. The option

contained a description of the property, similar to that set 

forth in the 2005 resolution, but did not include a purchase 

price or the manner in which to exercise the option. It did

provide that "[t]his agreement supersedes all other agreements." 

Perry claims that he and his business partner wrote checks to 

Bostonview totaling $30,000 toward the 2008 option. 

First Bostonview brought this action to recover for breach 

of the purchase and sale agreement. The complaint included

additional counts for breach of an indemnification agreement,

damages for money loaned and for money had and received, 

misrepresentation, civil conspiracy, and violation of G. L. 

c. 93A. Kennedy and MacKenzie were also named as defendants.4

 

3 The summary judgment record contains affidavits from four 

of the members, asserting that they had never seen or signed the 

resolution. The affidavits were unopposed.

4 MacKenzie and other codefendants were also the subject of 

Federal indictment concerning misadministration of the affairs 

of the church. In the indictment, MacKenzie was charged by a 

Federal grand jury in several counts with engaging in "a pattern 

of fraudulent acts," in order to "defraud the Church of its 

considerable financial holdings and profit from transactions 

 
8

The judge allowed Bostonview's motion for summary judgment,

ruling that the purchase and sale agreement was not enforceable 

because the corporate officers lacked authority to bind 

Bostonview. Bostonview's motion for entry of final and separate 

judgment was allowed, and First Bostonview appealed.

Discussion. 1. Actual authority. To begin, the plaintiff 

argues that Kennedy and MacKenzie had actual authority to enter 

into the purchase and sale agreement by virtue of their 

respective corporate offices and the Bostonview corporate bylaws, which allowed the president to execute certain mortgages 

and other contracts.5

 We disagree. It is well established that 

involving the Church." On October, 23, 2014, MacKenzie pleaded 

guilty to the Federal charges. By his guilty pleas, MacKenzie 

was convicted of a series of Federal criminal offenses, 

including but not limited to racketeering conspiracy, 

racketeering, mail fraud, and money laundering. The predicate 

racketeering acts to defraud the church in the Federal criminal 

case were in addition to the subject asset sale transaction 

which is the subject of this appeal, and which was not 

incorporated in the Federal criminal indictment. This 

particular purported transaction to sell the church’s sole asset 

-- all as further described in this opinion -- is, for the 

reasons stated herein, voided under Massachusetts law as in 

breach of fiduciary obligations. See United States vs. 

MacKenzie, U.S. Dist. Ct., No. 13-cr-10149 (D. Mass. May 21, 

2013). Also of note, Kennedy, after waving indictment, pleaded 

to criminal information charging mail fraud conspiracy and 

several counts of filing false individual tax returns. See 

United States vs. Kennedy, U.S. Dist. Ct., No. 13-cr-10065 (D. 

Mass. Mar. 13, 2013).

5 The plaintiff relies on the following: "[The president] 

shall execute bonds, mortgages and other contracts requiring a 

seal, under the seal of the corporation, except where required 

or permitted by law to be otherwise signed and executed and 

 
9

corporate officers do not have authority to sell the principle 

asset of a corporation without specific authorization from its 

board of directors. See Stoneman v. Fox, Film Corp., 295 Mass. 

419, 425 (1936); Boston Athletic Assn. v. International 

Marathons, Inc., 392 Mass. at 365; Kanavos v. Hancock Bank & 

Trust Co., 14 Mass. App. Ct. 326, 333 (1982). 

Moreover, because Bostonview is a charitable corporation, 

the powers of its corporate officers are more strictly 

construed. See Boston Athletic Assn. v. International 

Marathons, Inc., 392 Mass. at 366. To that end, the Supreme 

Judicial Court has made clear that only specific authorization 

can bind a charitable corporation to an extraordinary 

transaction entered into by its corporate officers. Id. at 364-

365. The court, in fact, went further, holding that authority 

to make a contract that divested the charitable corporation "of 

the very essence" of its existence, in that case the exclusive 

right to promote the Boston Marathon, was beyond the power of 

the board to delegate to its president. Id. at 366-367. 

Here, in our view, the sale of substantially all of the 

church property can only be characterized as an extraordinary 

transaction, and, indeed, one that would divest Bostonview of 

the very essence of its existence as a charitable corporation. 

except where the signing and execution thereof shall be 

expressly delegated by the board of directors to some other 

officer or agent of the corporation." 

 
10

Bostonview was formed "exclusively for religious, charitable, 

scientific and education purposes" and to hold the church 

property and collect its income for the church. We believe the 

authority to make such a contract was beyond the power of the 

board of trustees to delegate to Kennedy and MacKenzie. See

ibid. At the very least, if such power could be delegated at 

all, the corporate officers required specific authorization from 

the board of trustees to bind Bostonview to the purchase and 

sale agreement, and no such authority was conferred here. See,

e.g., Bisceglia v. Bernadine Sisters of the Third Order of St. 

Francis of Mass., Inc., 29 Mass. App. Ct. 959, 960-961 (1990) 

(treasurer's authority "most certainly does not extend to 

agreements to dispose of real estate owned by the corporation, 

whose principal activity was the pursuit of its religious 

purposes"). 

The plaintiff counters that the cases relied upon by the 

judge, requiring specific authorization, involved only one 

corporate officer. Because both the president and the treasurer 

of Bostonview signed the purchase and sale agreement here, the 

plaintiff posits that the requirement of specific authorization 

does not apply to these facts. We note, however, that in

Peoples Natl. Bank of Boston v. New England Home for Deaf Mutes, 

Aged, Blind & Infirm, 209 Mass. 48, 49-50 (1911), cited in 

Boston Athletic Assn. v. International Marathons, Inc., 392 
11

Mass. at 366, the court held unenforceable, for lack of 

authority, a promissory note signed by both the president and 

treasurer on behalf of a charitable corporation.6 In a 

transaction involving the transfer of a major asset of a 

charitable corporation, specific authorization from the board of 

directors is required, regardless of the number of corporate 

officers involved.

2. Apparent authority. Even if they were without actual 

authority, the plaintiff maintains that Kennedy and MacKenzie

had apparent authority to sign the purchase and sale agreement 

on Bostonview's behalf. The judge correctly ruled that the 

doctrine of apparent authority has no application in this 

context. 

Apparent authority is "created as to a third person by 

written or spoken words or any other conduct of the principal 

which, reasonably interpreted, causes the third person to 

believe that the principal consents to have the act done on his 

behalf by the person purporting to act for him." Theos & Sons, 

Inc. v. Mack Trucks, Inc., 431 Mass. 736, 745 (2000). In the 

case of a charitable corporation, however, apparent authority

6 The plaintiff's argument on appeal, concerning enforcement 

of the purchase and sale agreement under G. L. c. 156D, § 8.46, 

fails, if for no other reason than that the agreement lacked the 

statutorily required acknowledgement to constitute a recordable 

instrument. See G. L. c. 183, § 30; Bisceglia v. Bernadine 

Sisters of the Third Order of St. Francis of Mass., Inc., supra

at 961. 

 
12

cannot be relied upon to enforce an agreement that transfers the

charity's primary asset or principal function. See Boston 

Athletic Assn. v. International Marathons, Inc., 392 Mass. at

367; Bisceglia v. Bernadine Sisters of the Third Order of St. 

Francis of Mass., Inc., supra at 960-961. Furthermore, as here, 

"[w]here the sale of corporate real estate is 'outside the scope 

of . . . [the corporation's] usual activity,' the doctrine of 

apparent authority does not apply." Id., at 961, quoting from

Kanavos v. Hancock Bank & Trust Co., 14 Mass. App. Ct. at 333. 

3. Ratification. The plaintiff additionally argues that 

the apparent authority of Bostonview's corporate officers was 

established by the actions of Bostonview's board of trustees 

after the purchase and sale agreement was executed. The 

plaintiff points to cases holding that even in the absence of 

actual authority, the corporation may be bound if it later 

ratified the transaction. See, e.g., Bloomberg v. Greylock 

Bdcst. Co., 342 Mass. 542, 548 (1961) (corporate president's 

authority to sell major asset of corporation must be shown 

either by express delegation of such authority or that a 

majority of directors knew of the sale and approved or ratified 

it); Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330-331 (1923). 

To clarify, ratification is not apparent authority. 

Ratification, which may be established by the principal's 

subsequent acquiescence or approval of, or failure to repudiate,
13

a transaction conducted by it agent, "relates back, and has the 

same effect, as a prior grant of authority by the principal to 

the agent." Linkage Corp. v. Trustees of Boston Univ., 425 

Mass. 1, 18 (1997). Nevertheless, in a transaction involving 

the transfer of a major asset of a charitable corporation, the 

requirement of specific authorization is presumed, and the 

burden is on the purchaser to inquire as to the authority 

conferred before entering into the transaction. Bisceglia v. 

Bernadine Sisters of the Third Order of St. Francis of Mass., 

Inc., 29 Mass. App. Ct. at 960. "Persons dealing with a 

corporation are presumed to know the extent of its powers." 

Boston Athletic Assn. v. International Marathons, Inc., 392 

Mass. at 367, quoting from Wiley & Foss, Inc. v. Saxony 

Theatres, Inc., 335 Mass. 257, 260-261 (1957).

It is true that the above cases, cited by the plaintiff,

identified ratification as an alternative to actual authority.

Nevertheless, that aspect of the analysis has not been adopted 

in subsequent cases involving charitable corporations. See, 

e.g., Boston Athletic Assn. v. International Marathons, Inc., 

392 Mass. at 364-366; Bisceglia v. Bernadine Sisters of the 

Third Order of St. Francis of Mass., Inc., 29 Mass. App. Ct. at 

960-961. Because of the heightened public interest involved in 

the disposition of charitable assets, officers of a charitable 

corporation must have specific authorization to bind the charity 
14

to an extraordinary transaction. Boston Athletic Assn. v. 

Industrial Marathons, Inc., 392 Mass. at 364-365. "Those 

entrusted with the management of funds dedicated to charitable 

purposes and donated out of a sense of social or moral 

responsibility owe an especially high degree of accountability 

to the individual donors as well as to the community." Id. at 

366. We therefore conclude that subsequent approval or other 

conduct by the board of directors of a charitable corporation

will not substitute for prior specific authorization to commit 

the charity to an extraordinary transaction.

For that reason, we reject the plaintiff's assertion that 

Bostonview's board of trustee's failure to repudiate the 

purchase and sale agreement, when the transaction came to light 

in 2008 in litigation involving the church, should be treated as 

proof of authorization. We reject, as well, the plaintiff's 

reliance on the 2005 resolution as reaffirming the plaintiff's 

right to purchase the church property. Even assuming its 

authenticity, the 2005 resolution was executed three weeks after 

the 2005 option to purchase and nine months after the purchase 

and sale agreement.7 Contrary to the plaintiff's position, the 

7 Moreover, the 2005 resolution contained different terms 

than the 2005 option and, like the option itself, made no 

reference whatsoever to the purchase and sale agreement. It 

also lacked the official church seal, without which it was not 

valid as provided therein. We add here that, to the extent the 

plaintiff seeks to enforce the 2005 and 2008 options -- its 

 
15

evidence of subsequent conduct by the board of trustees did not 

create a question of fact regarding the authority of 

Bostonview's corporate officers to sell the church property.

4. Separate and final judgment. The plaintiff argues that 

the judge's allowance of Bostonview's motion for entry of 

separate and final judgment, whereby the judge dismissed the 

plaintiff's remaining claims, was error. We touch briefly on 

the dismissal of those claims, which we determine was not error.

The plaintiff sought damages for breach of an

indemnification agreement, dated September 17, 2008, between 

Perry and Bostonview, signed by Rex Ellis, as president and 

chairman of the board of trustees of Bostonview. The 

plaintiff's one-paragraph argument in its brief on appeal does 

establish that Ellis had authority to bind Bostonview to an 

agreement to pay up to $475,000 to indemnify Perry for amounts 

he had paid to MacKenzie towards the purchase of the church 

property. As previously explained, the power of an officer of a 

charitable corporation to enter into a transaction that falls 

outside the general managerial functions of the charity is

narrowly construed. Boston Athletic Assn. v, International 

Marathons, Inc., 392 Mass. at 364-366. And Perry, as the party 

brief does not make that clear -- the judge properly dismissed 

the claims, as both documents lacked essential terms, even apart 

from the issue of authorization. See, e.g., Lewis v. Chase, 23 

Mass. App. Ct. 673, 676 (1987) (option agreements are "to be 

strictly construed").

 
16

dealing with a charitable corporation, was bound to inquire as 

to the extent of Ellis's authority. See id. at 367. Instead,

the record indicates that Perry was aware that the church had 

filed a lawsuit against Ellis claiming that he had illegally 

gained control of the church, as Perry signed an affidavit in 

connection with the litigation on September 18, 2008, the day 

after Ellis executed the indemnification agreement in Perry's 

favor. 

The plaintiff's claims for civil conspiracy and violation 

of G. L. c. 93A, were properly dismissed, based on the judge's 

ruling regarding the lack of actual or apparent authority of 

Bostonview's corporate officers to transfer the church property, 

as the judge correctly determined that Kennedy and MacKenzie 

were not acting on Bostonview's behalf or in concert with 

Bostonview in signing the purchase and sale agreement. 

We do not reach the plaintiff's following claims. The 

plaintiff devotes two sentences in its brief to its claim for 

monies loaned and monies had and received; as that does not 

constitute appropriate appellate argument, the issue is deemed 

waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 

(1975); Morgan v. Laboratory Corp. of Am., 65 Mass. App. Ct. 

816, 821 n.6 (2006). The plaintiff's claim against Bostonview 

for misrepresentation, regarding the status of Kennedy and 

MacKenzie as corporate officers when they were negotiating the 
17

sale, was not set out in its complaint and may not be raised 

here. See Flynn v. Boston, 59 Mass. App. Ct. 490, 495 (2003).

Judgment affirmed.