KILEY v. CITY OF LAWRENCE, 08-0795-C (Ma.Super. Feb. 17, 2009)

No. 08-0795-C.Commonwealth of Massachusetts Superior Court. ESSEX, SS.
February 17, 2009.

MEMORANDUM AND DECISION ON DEFENDANT CITY OF METHUEN’S MOTION TO DISMISS
LEILA R. KERN, Associate Justice.

The plaintiff, Barbara Connolly Kiley, brought suit against the City of Lawrence, the City of Methuen, Stephen Stapinski and Merrimack Engineering Services for their involvement in her attempts to secure sewer and water service for a parcel of undeveloped land she was in the process of purchasing. Kiley seeks a declaratory judgment, contract remedies and damages, and relief under G.L. c. 93A.[2] Methuen filed a motion to dismiss for failure to state a claim upon which relief may be granted, Mass. R. Civ. P. 12(b)(6), and Lawrence joined in the motion. Only Methuen filed a memorandum of law in support of its motion. This court denied Lawrence’s motion at oral argument as Methuen’s position is substantially distinct. For the following reasons, Methuen’s Motion to Dismiss is ALLOWED.

BACKGROUND
In the late summer and early fall of 2004, Kiley was seeking to buy a parcel of land located on the border between Lawrence, Massachusetts, and Methuen, Massachusetts. Kiley retained

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Stapinski, an employee of Merrimack, to perform due diligence in association with her purchase and to arrange for the appropriate development permits. Stapinksi submitted development plans to Methuen in August 2004. Methuen notified Kiley and Stapinski that they would have to obtain a water and sewer tie-in from Lawrence, and that Methuen’s approval of the development plans was contingent upon Lawrence’s permission to connect to its water and sewer lines. Kiley contacted Lawrence and requested such permission. Lawrence agreed.

After securing water and sewer service, Kiley went forward with the real estate transaction and purchased the property for $100,000. She began development on the land, as the conditions of the permit granted by Methuen had been satisfied. Sometime after Kiley signed the purchase and sale agreement and began developing the land, however, Lawrence notified Methuen, Stapinski and Merrimack that not withstanding what may have been communicated to Kiley earlier, it would not permit Kiley to tie in to its water and sewer lines. After some delay, Stapinski and Merrimack notified Kiley that Lawrence had revoked its permission. Without the tie-in, Kiley cannot develop her land.

DISCUSSION
When evaluating the sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the court must accept as true the well-pleaded factual allegations of the complaint, and make any reasonable inferences which can be drawn therefrom in the plaintiff’s favor. Eyal v. HelenBroadcasting Corp., 411 Mass. 426, 429 (1991) and cases cited. The moving party’s burden at the 12(b)(6) stage has been slightly eased by the recent Supreme Judicial Court decision, Lannacchino v. Ford Motor,

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451 Mass. 623, 635-36 (2008). Previously, a defendant had to show that it was “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957). But the Supreme Judicial Court followed the U.S. Supreme Court’s lead in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), and now requires claimants to provide “`more than labels and conclusions . . . [f]actual allegations must be enough to raise a right to relief above the speculative level. . . .'” Lannacchino, 451 Mass. at 636, quoting BellAtlantic Corp., 127 S. Ct. at 1964-1965.

1. Action for Declaratory Judgment

Kiley is seeking a declaratory judgment pursuant to G.L. c. 231A, § 1, et seq., that Lawrence is “legally barred” from revoking its permission allowing her to tie in to its water and sewer lines. A declaratory judgment is intended “to afford relief from uncertainty and insecurity with respect to rights, duties, status and other legal relations.” Mass.Ass’n of Indep. Ins. Agents Brokers, Inc. v. Comm’r of Ins., 373 Mass. 290, 291 (1977), quoting c. 231A, § 9. To obtain a declaratory judgment, a party must show that an “actual controversy exists” and the alleged controversy must be specifically set forth in the pleadings. G.L. c. 231A, § 1. “An actual controversy exists where there is a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter. . . .” Gay Lesbian Advocates Defenders v. Atty. General, 436 Mass. 132, 134 (2002), quotations omitted.

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Here, Kiley has not specifically set forth an actual controversy between herself and Methuen; in fact, Kiley’s requested relief does not even implicate Methuen. Kiley’s complaint states that Methuen agreed to cooperate with Lawrence to facilitate Kiley’s access to Lawrence’s water and sewer service so that she could obtain a development permit from Methuen. She does not allege a legal relation, status or right in which she has an interest that Methuen has denied. Nothing in the complaint provides grounds for a declaratory judgment against Methuen with respect to Lawrence’s revocation, and this count against Methuen must be dismissed.

2. Action for Actual and Consequential Damages

Kiley does not allege a specific and identifiable statutory or common law basis for her claim for damages against Methuen. Because of this ambiguity, it is unclear whether Kiley’s claim is based in tort or contract. If Count Two is a tort claim, it must be dismissed for failure to adhere to the presentment requirement under section four of the Massachusetts Tort Claims Act (MTCA), G.L. c. 258. Kiley does not dispute that she did not present her claim to Methuen in compliance with the MTCA procedures. Kiley instead urges this court to view count two as a contract claim, and argues that she has made out a viable breach of contract claim against Methuen. To make out a breach of contract, a plaintiff must show that: (1) an agreement was made between the parties; (2) for consideration; (3) the plaintiff has or is willing to perform the contract; (4) the defendant breached the agreement; (5) and the plaintiff suffered damage. See Singarella v. City of Boston, 342 Mass. 385, 387
(1961); see also R.W. Bishop, Prima Facie Case — Proof and Defense § 2.1 (2005). Here, even if Kiley were able to establish that she and Methuen had a binding agreement that Methuen would cooperate with Lawrence, she has failed to allege a breach of that agreement.

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Kiley states that Methuen agreed to cooperate with Lawrence to coordinate Kiley’s access to Lawrence’s water and sewer lines. Kiley then claims that Methuen breached its agreement when it failed to timely notify her that Lawrence had revoked its permission. She does not claim that Methuen failed to cooperate with Lawrence. There are no facts that support a contract between Kiley and Methuen in which Methuen agreed to be a liaison between Kiley and Lawrence such that Methuen would be obligated to notify Kiley of any changes in Lawrence’s position. Therefore, even if a contract existed between Methuen and Kiley in which Methuen agreed to cooperate with Lawrence for Kiley’s benefit, Kiley fails to state that Methuen breached that agreement. Instead, she baldly claims that Methuen should have ensured that she knew about Lawrence’s revocation. Kiley has not shown that there is a basis in law to support her claim for damages against Methuen, and her claim must be dismissed.

ORDER
For the foregoing reasons, the defendant City of Methuen’s Motion to Dismiss is ALLOWED and the City of Lawrence’s Motion to Dismiss isDENIED.

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