Katz v. Belveron Real Estate Partners

United States Court of Appeals
For the First Circuit

No. 20-1724

DEBRA KATZ,

Plaintiff, Appellant,

v.

BELVERON REAL ESTATE PARTNERS, LLC; MATTHEW ORNE; AHP HOLDINGS,
LLC; GRANT SISLER,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Howard, Chief Judge,
Thompson, Circuit Judge,
and Arias-Marxuach, District Judge.

David B. Mack, with whom Stephanie R. Parker and O'Connor
Carnathan & Mack LLC were on brief, for appellant.
Erika L. Todd, with whom Patrick P. Dinardo and Sullivan &
Worcester LLP were on brief, for appellees Belveron Real Estate
Partners, LLC and Grant Sisler.
John J. O'Connor, with whom Kristyn M. Kelley and Peabody &
Arnold LLP were on brief, for appellees AHP Holdings, LLC and
Matthew Orne.

March 8, 2022

 Of the District of Puerto Rico, sitting by designation.
 Arias-Marxuach, District Judge. Appellant Debra Katz

is a sophisticated real estate investor currently suffering from

seller's remorse. In late 2014, Katz sold her 48% special limited

partnership interest in an affordable housing property ("the

Property") to AHP Holdings, LLC for $1.5 million. Katz maintains

she had no interest in selling her share, and only did so because

she was fraudulently led to believe that Belveron Real Estate

Partners, LLC had power over said Property and would block any

attempt to sell or refinance it. In 2016, due to a major uptick

in the market for analogous housing projects, the Property sold

for an unexpected $11.7 million.

Katz filed suit alleging claims for fraud, civil

conspiracy, breach of fiduciary duty, and unjust enrichment, among

others. The district court entered summary judgment dismissing

the suit. It found that Katz failed to amend her complaint to

incorporate an updated theory of fraud, after the one she initially

proffered was disproven during discovery. Moreover, the district

court held that Katz's unpled theories failed on the merits because

any misrepresentations were not material and, in any event, she

did not suffer any actionable damages because she received a fair

price for her interest.

Katz appeals this determination, contending the

defendants had adequate notice of her refined theory of fraud.

She also argues the lower court did not adequately consider that

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absent Appellees' alleged misrepresentations, she would not have

sold her interest at all. Therefore, regardless of the sales

price of her special interest, she is "worse off" than if she had

retained her interest and profited from the subsequent sale of the

Property. Applying the summary judgment motion standard, we find

that Katz has failed to make a sufficient showing on essential

elements of her case. Thus, we confirm the district court's

dismissal, albeit on partially different grounds.

I.

Appellant Debra Katz ("Katz") is a real estate investor

who founded her own property management company in 1997 and has

been the general partner of three housing projects. She has lived

in the Springfield, Massachusetts area nearly her entire life.

In 1983, her father, Alfred Katz, formed Falls View

Associates Limited Partnership ("Falls View" or the

"Partnership"). Falls View developed a 130-unit affordable

housing complex in Chicopee, Massachusetts ("the Property"). Upon

Alfred Katz's death in 2000, Katz inherited his Special Limited

Partnership Interest ("Special Interest") in Falls View, totaling

48%. This Special Interest did not give Katz any voting rights

or control over the Partnership. Instead, in the event of a

liquidity event, i.e. the sale or refinance of the Property, Katz

would be entitled to receive a proportionate share of the proceeds.

Pursuant to the Partnership Agreement ("Agreement"),

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when Katz became involved in the Partnership, Paul Oldenburg

("Oldenburg") was the General Partner of Falls View and Wilder

Richman Corporation 1983 Investor Limited Partnership ("WRC") was

the sole limited partner. Gina Dodge ("Dodge") was a WRC employee

and its point person for matters related to the Partnership.

Appellees Belveron Real Estate Partners LLC ("Belveron")

and AHP Holdings, LLC ("AHP"), which were separately owned,

invested in limited partnerships that held affordable or federally

subsidized housing projects. In August 2014, Belveron Partners

Fund III JV, LLC (the "Fund"), a Belveron affiliate, obtained

25.74% of limited partnership interest in WRC. At that time, AHP

already owned a 25.74% interest in WRC. Therefore, in the

aggregate, the Fund and AHP had obtained over 51% economic interest

in WRC. However, neither Belveron, the Fund, nor AHP were admitted

as substitute limited partners of WRC, nor did any of these

entities acquire voting rights in WRC.

In August 2014, the Property's thirty-year mortgage

matured, and the Property was poised to either be sold or

refinanced. Katz favored either option in lieu of selling her

Special Interest. Notably, a sale could not occur without the

approval of the Property's General Partner, Oldenburg.

In the fall of 2014, Grant Sisler ("Sisler"), Belveron's

Vice President of Operations, contacted Katz and inquired if she

would be willing to sell her Special Interest to Belveron for $1.1

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million. To justify this offer, Sisler provided Katz with

refinance estimates and concluded that: "the proceeds out to the

limited partners is just over $4M (best case scenario) and $3.24M

at the worst case scenario. . . At the higher refinance number

($4.038M) I estimate that you get back just over $1M and at the

lower refinance number, you would receive around $750k." On

November 5, 2014, Sisler notified Katz via e-mail that he could

not match her $1.8 million asking price and $1.2 million was the

highest amount he could offer for her Special Interest. Sisler

argued that Katz would receive less after a refinance and that

Belveron would "block attempts to sell the [P]roperty."

Ultimately, Sisler and Katz did not reach an agreement. Katz has

since testified that she would not have sold to Belveron because

Sisler "didn't have an incredibly good reputation" and was

aggressive.

Parallel to these negotiations, Oldenburg told Katz that

Sisler was making decisions regarding the Property. This gave her

the feeling that Sisler was "acting as a de facto general partner"

of the Property. Despite this belief, Katz did not ask Belveron

what kind of interest it had in the Property, whether it had a

voting interest in WRC, or whether it had a majority ownership of

WRC. Katz became concerned that she would be trapped indefinitely

in Falls View, holding an illiquid Special Interest with no say

regarding the Property. Upon being told by Oldenburg that there

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was no plan to sell or refinance the Property, she asked if he

would be interested in purchasing her interest for more than $2

million. Oldenburg declined.

In the same November 5, 2014, e-mail that Sisler sent

Katz, Sisler copied Matthew Orne ("Orne"), AHP's agent, in case

AHP was interested in purchasing Katz's Special Interest. Sisler

noted that Katz thought Belveron and AHP worked together and stated

that they were "very different" companies that both operate in the

secondary market. In early December 2014, Orne forwarded said

email to Katz, and inquired about purchasing her Special Interest.

On December 17, 2014, Katz agreed to sell her Special Interest to

AHP for $1.5 million and signed an Agreement with AHP to that end.

Under the terms of the Agreement, the transfer of Katz's Special

Interest to AHP required the General Partner's consent, therein

identified as Oldenburg. Furthermore, the Agreement did not

prohibit AHP from subsequently selling the Special Interest to

another party. Katz was represented by legal counsel during the

process of selling her Special Interest to AHP. Although she had

been provided information regarding the Partnership's finances for

2013, Katz did not have the Property nor her Special Interest

appraised prior to the sale of her Special Interest.

Unbeknownst to Katz, although Belveron and AHP were

unaffiliated companies, they had a "gentlemen's agreement" where

if both companies were involved in a partnership, and one of them

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bought an additional interest, they would offer the other company

an opportunity to purchase half the interest acquired. Pursuant

to this agreement, once AHP purchased Katz's Special Interest, it

opted to split it with Belveron, although not obligated to do so.

Accordingly, AHP transferred 50% of Katz's Special Interest to the

Belveron affiliated Fund on February 27, 2015. AHP and Belveron

made the transfer public on March 13, 2015.

After purchasing Katz's Special Interest, AHP and the

Fund worked to acquire the interests of other WRC investors.

Despite this, Belveron and AHP were not interested in selling the

Property given its substantial guaranteed cashflow. This changed

in late 2015 when Andrew Daitch ("Daitch"), a real estate

professional working in the Affordable Housing Advisors group at

Marcus & Millichap, informed them that the real estate market had

experienced significant growth that year and foreign buyers were

investing large sums of money in similar housing projects.

Accordingly, Daitch told Orne he believed he could sell the

Property for $11 million. Sisler and Orne were highly skeptical

of said sales price, assuming that the Property was worth closer

to $6.5 million. In 2016, to the investors' surprise, the Property

sold for $11.7 million.

II.

On September 29, 2017, Katz filed suit against eight

defendants: (a) Belveron and its employee Sisler; (b) AHP and its

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agent Orne; and (c) WRC, its agent Dodge, its General Partner, and

its investor service agent (the "WRC Defendants"). Promptly

thereafter, Katz amended the complaint, dismissing her claims

against the WRC Defendants. In the amended complaint, she alleged

that Belveron fraudulently misled her as to the value of her

Special Interest and its intention to hold the Property in lieu of

selling it. During discovery, Katz learned that, despite

allegedly being told the contrary, Belveron lacked control to

prevent the sale because it did not have voting rights in WRC.

Katz also came to believe that AHP and Belveron misrepresented

their relationship to induce her to sell her Special Interest to

AHP. Lastly, it became evident that the Fund, not the named

Belveron defendant, had acquired her Special Interest.

On November 6, 2018, Katz filed a motion for leave to

amend the complaint, accompanied by the proposed second amended

complaint. Therein, Katz articulated a modified theory of the

case, pursuant to the results of discovery. Namely, she argued

that Appellees engaged in fraud by misrepresenting and omitting

information regarding: (1) Belveron's ability to block a sale or

refinance of the Property; and (2) the relationship between AHP

and Belveron. Further, Katz sought to add Oldenburg as a defendant

and substitute the existing Belveron defendant for its affiliated

Fund. Upon filing the motion, Katz learned that adding the Fund

would destroy the court's diversity jurisdiction. To avoid a

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remand, Katz withdrew her motion to amend the complaint and instead

supplemented her discovery responses to incorporate her revised

theory of the case.

On April 1 and 19, 2019, Belveron and AHP filed

individual motions for summary judgment. Katz opposed said

motions on May 17, 2019. After conducting a hearing, the district

court granted the motions, holding that Katz could not amend her

complaint through a subsequent brief opposing summary judgment,

especially because the operative complaint did not allege the basic

framework of the fraudulent scheme. Moreover, the Court also

found that Katz did not properly support her unpled theories and

remaining causes of action. On July 21, 2020, Katz filed this

timely appeal.

III.

Summary judgment is proper under Fed. R. Civ. P. 56(a)

"when the record, construed in the light most congenial to the

nonmovant, presents no genuine issue as to any material fact and

reflects the movant's entitlement to judgment as a matter of law."

McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017). If at this

stage, the nonmoving party fails "to make a sufficient showing on

an essential element of [their] case with respect to which [they

have] the burden of proof[,]" summary judgment should be granted

accordingly. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

We review an order granting summary judgment de novo.

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Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 21 (1st Cir.

2018). When conducting such a review, we are not bound by the

district court's "rationale; rather, the court of appeals may

affirm on any independent ground made evident by the record."

González-Droz v. González-Colón, 660 F.3d 1, 9 (1st Cir. 2011)

(citation omitted). Likewise, the decision to grant a motion for

summary judgment may be reversed "if there are any factual issues

that need to be resolved before the legal issues can be addressed."

Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir.

1990).

In the case at bar, "federal law supplies the applicable

procedural rules and [Massachusetts] state law supplies the

substantive rules of decision." Lawless, 894 F.3d at 21.

A. Adequately pleading fraud

In the operative complaint, Katz claims that Sisler and

Belveron "misrepresented the value of Ms. Katz's interest in the

Company, the likelihood of the sale of the Property, and the

partners' interest in selling the Property." Prior to the

discovery deadline, Katz sought to amend the operative complaint

to include both refined and additional theories of fraud.

Specifically, she averred that Appellees fraudulently

misrepresented: (1) Belveron's ability to block the Property's

sale or refinance; and (2) AHP and Belveron's relationship. Katz

also attempted to incorporate Oldenburg and the Fund as additional

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defendants. She ultimately withdrew her motion to amend to avoid

destroying diversity jurisdiction. Thus, the operative complaint

remained untouched. In their motion for summary judgment,

Belveron and Sisler objected to Katz's attempt to include new

claims and categorized her efforts to do so as "legally irrelevant"

in the absence of a formal amendment to the complaint. After this

objection, Belveron and Sisler addressed Katz's refined claims on

the merits. On their part, AHP and Orne contend that they relied

on the fact that Katz withdrew her motion to amend the complaint

and thus, there are no causes of action for fraud against them on

record. The district court granted Defendants' motions for

summary judgment highlighting that Katz never amended the

complaint to revise her theory of fraud.

On appeal, Katz contends that the district court erred

in declining to consider her unpled theories of fraud as properly

before it. She maintains that by supplementing her interrogatory

responses to incorporate new facts learned through discovery, she

constructively amended her complaint and provided defendants with

adequate notice. We review the district court's refusal to

consider Katz's unpled theories of fraud for abuse of discretion.

See Antilles Cement Corp. v. Fortuno, 670 F.3d 310, 319 (1st Cir.

2012); United States ex rel. Donegan v. Anesthesia Assocs. of

Kansas City, PC, 833 F.3d 874, 880 (8th Cir. 2016); see also

Jenkins v. Hous. Ct. Dep't, 16 F.4th 8, 19 (1st Cir. 2021) ("We

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review a district court's denial of a motion seeking leave to amend

for an abuse of discretion, 'defer[ring] to the district court's

hands-on judgment so long as the record evinces an adequate reason

for the denial.'" (quoting Torres-Alamo v. Puerto Rico, 502 F.3d

20, 25 (1st Cir. 2007)); Rosario-Urdaz v. Rivera-Hernandez, 350

F.3d 219, 221 (1st Cir. 2003) ("An error of law is, of course, an

abuse of discretion.").

While Fed. R. Civ. P. 15 governs when and how pleadings

can be amended, it does not establish consequences for failing to

amend the pleadings. Case law interpreting the federal rules of

civil procedure demonstrates a "belief that when a party has a

valid claim, [they] should recover on it regardless of [their]

counsel's failure to perceive the true basis of the claim at the

pleading stage, provided always that a late shift in the thrust of

the case will not prejudice the other party[.]" 5 Wright and

Miller, Fed. Prac. & Proc. Civ., § 1219 (4th ed. 2021); see also

Conn. Gen. Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612, 622

(1st Cir. 1988) (finding that plaintiff's failure to "plead [a]

particular legal theory, when it did plead two related theories"

would not bar relief, especially because defendant raised specific

defenses regarding the unpled theory); but see Miranda-Rivera v.

Toledo-Dávila, 813 F.3d 64, 76 (1st Cir. 2016) ("Allowing a

plaintiff to proceed on new, unpled theories after the close of

discovery would prejudice defendants, who would have focused their

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discovery efforts on the theories actually pled.").

However, Fed. R. Civ. P. 9(b) requires that allegations

of fraud "must state with particularity the circumstances

constituting fraud." Therefore, a claimant must specify "what the

underlying misrepresentation was, who made it, and when and where

it was made." Khelfaoui v. Lowell Sch. Comm., 496 F. Supp. 3d

683, 689 (D. Mass. 2020) (quotation omitted); see also Alternative

Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir.

2004). The purpose of this rule is "to place the defendants on

notice and enable them to prepare meaningful responses, to preclude

the use of a groundless fraud claim as pretext for discovering a

wrong, and to safeguard defendants from frivolous charges [that]

might damage their reputation." Dumont v. Reily Foods Co., 934

F.3d 35, 39 (1st Cir. 2019) (internal quotations omitted,

modification in original). Notably, "Rule 9(b)'s heightened

pleading requirements apply not only to claims of fraud simpliciter

but also to related claims as long as the central allegations of

those claims 'effectively charge fraud.'" Foisie v. Worcester

Polytechnic Inst., 967 F.3d 27, 49 (1st Cir. 2020) (quoting Mulder

v. Kohl's Dep't Stores, Inc., 865 F.3d 17, 21-22 (1st Cir. 2017)).

Appellant was clearly aware of the need to amend her

fraud allegations and easily could have done so against the named

defendants, even at a belated stage of the proceedings. See,

e.g., Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126

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(1st Cir. 2006) (reaffirming that a plaintiff can tender an amended

complaint after a motion for summary judgment has been filed if

they show "that the proposed amendments were supported by

substantial and convincing evidence" (quotation omitted));

Asociación de Suscripción Conjunta del Seguro de Responsabilidad

Obligatorio v. Juarbe-Jiménez, 659 F.3d 42, 53 (1st Cir. 2011)

("At the summary judgment stage, the proper procedure for

plaintiffs to assert a new claim is to amend the complaint in

accordance with [Rule 15(a)]." (quoting Gilmour v. Gates, McDonald

& Co., 382 F.3d 1312, 1315 (11th Cir. 2004)). Instead, she opted

to amend her complaint through her opposition to defendants' motion

for summary judgment, a practice this Court has routinely rejected.

See, e.g., Montany v. Univ. of New England, 858 F.3d 34, 42 (1st

Cir. 2017); Asociación de Suscripción Conjunta del Seguro de

Responsabilidad Obligatorio, 659 F.3d at 53; see also Brooks v.

AIG SunAmerica Life Assur. Co., 480 F.3d 579, 590 (1st Cir. 2007).

While the Federal Rules of Civil Procedure allow for the

constructive amendment of a complaint in limited circumstances,

the requisite conditions are not present here. Fed. R. Civ. P.

15(b)(2) provides "[w]hen an issue not raised by the pleadings is

tried by the parties' express or implied consent, it must be

treated in all respects as if raised in the pleadings." We have

previously held that:

For purposes of Rule 15(b), implied consent to

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 the litigation of an unpleaded claim may arise
from one of two generic sets of circumstances.
First, the claim may actually be introduced
outside the complaint—say, by means of a
sufficiently pointed interrogatory answer or
in a pretrial memorandum—and then treated by
the opposing party as having been pleaded,
either through his effective engagement of the
claim or through his silent acquiescence. . .
Second, and more conventionally, "[c]onsent to
the trial of an issue may be implied if, during
the trial, a party acquiesces in the
introduction of evidence which is relevant
only to that issue."

Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)

(emphases added) (quoting DCPB, Inc. v. City of Lebanon, 957 F.2d

913, 917 (1st Cir. 1992)); see also Scholz v. Goudreau, 901 F.3d

37, 45 (1st Cir. 2018); Antilles Cement Corp., 670 F.3d at 319

(quoting and applying Rodriguez); Lynch v. Dukakis, 719 F.2d 504,

508 (1st Cir. 1983) ("The test of consent by implication to the

trial of claims not set forth in the complaint is whether a party

did not object to the introduction of evidence or introduced

evidence himself that was relevant only to that issue." (citation

omitted)).

While this Court has not expressly done so, the Seventh

Circuit has held that, in the "spirit of Rule 15(b)," constructive

amendments to the complaint can be effected at the summary judgment

stage, rather than at trial, when the parties have provided express

or implied consent. Walton v. Jennings Comm. Hosp., Inc., 875

F.2d 1317, 1320 n.3 (7th Cir. 1989). The test for implied consent

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at summary judgment becomes "whether the opposing party had a fair

opportunity to defend and whether he could have presented

additional evidence had he known sooner the substance of the

amendment." Hutchins v. Clarke, 661 F.3d 947, 957 (7th Cir. 2011)

(quotation omitted). Even if we were to follow the Seventh

Circuit's lead and recognize a district court's discretionary

authority to allow "constructive amendments" to pleadings at the

summary judgment stage, as extrapolated from Rule 15(b), see, e.g.,

Torry v. Northrop Grumman Corp., 399 F.3d 876, 877-78 (7th Cir.

2005), here, the district court acted within its discretion in

determining that unpled claims were not properly before it.

Even though defendants acknowledged Katz's unpled claims

in their motions for summary judgment, they only did so after

explicitly objecting to their inclusion. Cf. Action Mfg., Inc.

v. Fairhaven Textile Corp., 790 F.2d 164, 167 (1st Cir. 1986) ("As

a general principle the presentation of claims beyond the complaint

without objection is considered an informal amendment of the

complaint." (emphasis added)). By arguing that Katz's decision

to withdraw her proposed amended complaint rendered her new

theories legally irrelevant and ineffective, defendants precluded

a finding that they "engaged or embraced," and thus implicitly

consented to, said claims becoming part of the proceedings.

Rodriguez, 57 F.3d at 1173; see also Kenda Corp., Inc. v. Pot

O'Gold Money Leagues, Inc., 329 F.3d 216, 232 (1st Cir. 2003) ("It

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is not enough that an issue may be 'inferentially suggested by

incidental evidence in the record;' the record must indicate that

the parties understood that the evidence was aimed at an unpleaded

issue.'" (quoting Galindo v. Stoody Co., 793 F.2d 1502, 1513 (9th

Cir. 1986)).

As noted earlier, although she withdrew her motion to

amend, Katz contends that defendants were on notice of her new

theories by way of her supplemental responses to their

interrogatories, which she served a few weeks before the close of

discovery and in advance of her second day of deposition testimony.

Specifically, this five-page document attached Katz's proposed

amended complaint -- withdrawn with her motion to amend, two months

prior -- and broadly purported to "incorporate [its] allegations

. . . insofar as they pertain to the conduct, misrepresentation

and omissions of the individuals with whom she communicated during

the relevant time period." She then vaguely "refer[red]" the

defendants to the withdrawn amended complaint as a supplemental

response to one interrogatory, without any further explanation or

citation. Whatever the potential legal significance of this

attempted end-around Rule 15, the supplemental response is not

sufficiently informative to satisfy Rule 9(b)'s particularity

requirement. See Rodriguez, 57 F.3d at 1171-72. Moreover, the

defendants' failure to immediately move to strike the response can

hardly be viewed as acquiescence sufficient to amount to implied

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consent that the new issues would be litigated. Given the absence

of defendants' consent, implied or otherwise, coupled with Katz's

failure to plead fraud pursuant to the heightened standard imposed

by Rule 9(b), the district court did not abuse its discretion in

determining that Katz's unpled theories were not properly before

it.

B. Fraud on the merits

Under Massachusetts law, the elements for common law

fraud and fraudulent inducement are the same. See United States

v. President & Fellows of Harvard Coll., 323 F. Supp. 2d 151, 199

(D. Mass. 2004). To prove either cause of action, the petitioner

must establish that: "(1) the statement was knowingly false, (2)

defendants made the statement with the intent to deceive, (3) the

statement was material, (4) plaintiff reasonably relied on the

statement, and (5) plaintiff was injured as a result of its

reliance." Id. (citing Turner v. Johnson & Johnson, 809 F.2d 90,

95 (1st Cir. 1986) (applying Massachusetts law)).

As discussed above, Katz alleges Belveron and Sisler

misrepresented the likelihood of a sale, as well as the value of

the Property and her Special Interest. She affirms that absent

these misrepresentations; she would not have sold her Special

Interest. Even when viewing the record in the light most favorable

to Katz, her claims of fraud fail on the merits.

The record reflects that statements made by Sisler and

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Belveron regarding the likelihood of a sale and the value of the

Property were not knowingly false. Katz has reiterated throughout

litigation that she believed her Special Interest and Property

were worth more than Appellees stated when trying to purchase her

interest. Yet, Sisler supported his initial $1.1 million offer

with two refinancing estimates. See Zimmerman v. Kent, 575 N.E.2d

70, 75 (Mass. App. Ct. 1991) ("A statement on which liability for

misrepresentation may be based must be one of fact, not of

expectation, estimate, opinion, or judgment."). Even after the

sale, internal communications show that Sisler believed that in

2016, the Property was worth approximately $6.5 million.

On her part, Katz only offers her personal

unsubstantiated assessment as proof that the Property was worth

more than what Appellees represented. This is insufficient to

controvert the evidence on the record or otherwise establish that

Belveron and Sisler intentionally misrepresented the value of the

Property and her Special Interest. Notably, she did not have the

Property nor her Special Interest appraised prior to accepting

AHP's $1.5 million offer. On one hand, Katz asserts that her

real-estate experience alone qualifies her to determine that

Belveron misrepresented the value of the Property. On the other

hand, Katz wants to maintain that she lacked the ability to

adequately assess Belveron and AHP's offers. She cannot have it

both ways.

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 Similarly, Appellees have shown they were intent on

retaining the Property due to its substantial and guaranteed

cashflow. They allowed Daitch to pursue a potential sale solely

given a recent shift in the real estate market. However, Appellees

expressed surprise and shock when the Property fetched $11.7

million. Once again, Katz has not been able to controvert that,

when they were made, the pertinent representations regarding

keeping the Property were not knowingly false or reckless.

C. Katz's remaining claims

Beyond fraud, Katz asserts several causes of action, all

of which are equally unsuccessful in the absence of wrongdoing or

foreseeable damages.

i. Civil conspiracy

There are two types of civil conspiracy under

Massachusetts law:

One, based on section 876 of the Restatement
[(Second) of Torts], is a form of vicarious
liability for the tortious conduct of others
. . . The other, drawn from the common law,
amounts to a very limited cause of action in
Massachusetts for civil conspiracy based on
the defendants' allegedly unique ability to
exert a "peculiar power of coercion" when
acting in unison.

Snyder v. Collura, 812 F.3d 46, 52 (1st Cir. 2016) (emphasis added)

(quotations and citations omitted). The record reflects that Katz

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is asserting the former, which "requires an underlying tort."1

Taylor v. Am. Chemistry Council, 576 F.3d 16, 35 (1st Cir. 2009).

Having already rejected Appellant's theory of fraud, her civil

conspiracy claim necessarily faces the same fate.

ii. Breach of fiduciary duty

It is uncontested that neither Belveron nor Sisler had

a fiduciary duty towards Katz under the law or the Partnership

Agreement. Instead, Appellant alleges that through their conduct,

i.e. by acting as the de facto general partner and assuming an

authoritative role over the future of the Property, they imposed

a fiduciary duty upon themselves.

Massachusetts courts have recognized that "though

business transactions conducted at arm's length generally do not

give rise to fiduciary relationships, such a relationship can

develop where one party reposes its confidence in another."

Indus. Gen. Corp. v. Sequoia Pac. Sys. Corp., 44 F.3d 40, 44 (1st

Cir. 1995) (citation omitted). To determine if this

transformation has occurred, "courts look to the defendant's

knowledge of the plaintiff's reliance and consider the relation of

the parties, the plaintiff's business capacity contrasted with

that of the defendant, and the readiness of the plaintiff to follow

The district court's order granting summary judgment notes
1

that "Plaintiff correctly disclaimed a 'coercion' conspiracy claim
at the hearing[.]" Katz's Brief on appeal is consistent with
this.

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the defendant's guidance in complicated transactions wherein the

defendant has specialized knowledge." Smith v. Jenkins, 732 F.3d

51, 63 (1st Cir. 2013) (quoting Indus. Gen. Corp., 44 F.3d at 44)

(internal quotation marks omitted).

Katz's testimony reflects a lack of trust in Sisler and,

by extension, Belveron. Therefore, it is contradictory to claim

that she relied on their statements. Even more so considering she

opted not to enter a business transaction or agreement with them.

See Indus. Gen. Corp., 44 F.3d at 45 (finding no fiduciary duty

between product developer and parts' supplier, despite developer's

"overall 'management' role" in supplier's transaction with

contract manufacturer, where developer did not direct the terms of

the transaction, but merely "directed [supplier] to deal directly

with [manufacturer]"). Lastly, all parties involved were

sophisticated and experienced with analogous real estate ventures.

There is no evidence that Katz had such a disparate capacity or

knowledge that a fiduciary duty could be imposed on Sisler or

Belveron.

iii. Unjust enrichment

Katz's request for equitable relief also lacks merit.

An unjust enrichment claim "cannot stand where there is an

existing, express contract, unless the contract is not valid."

Philibotte v. Nisource Corp. Servs. Co., 793 F.3d 159, 167 (1st

Cir. 2015) (emphasis added); see also Shaulis v. Nordstrom, Inc.,

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865 F.3d 1, 16 (1st Cir. 2017) ("Massachusetts law does not permit

litigants to override an express contract by arguing unjust

enrichment.") (internal quotation omitted); Skyview Fin. Co., LLC

v. Kearsarge Trading, LLC, Civil Action No. 20-11666-PBS, 2021 WL

1930609, at *4 (D. Mass. Feb. 24, 2021) ("Because the relationship

between the parties is governed by contract, unjust enrichment is

not an available remedy.").

Katz sold her Special Interest to AHP for $1.5 million

via a written Agreement. We have already rejected Appellant's

contention that she was fraudulently induced into this sale.

Furthermore, Katz has not proffered any other grounds that could

render the existing Agreement invalid. See Monus v. Colo.

Baseball 1993, Inc., 103 F.3d 145, at *15 (10th Cir. 1996)

(unpublished) ("Having received the benefit of the bargain he

agreed to, plaintiff has made no showing that there are inequitable

circumstances justifying his claim of unjust enrichment.").

Therefore, the Agreement precludes her unjust enrichment claim as

to AHP.

We recognize that neither Sisler, Orne, nor Belveron

were parties to this Agreement. However, "[t]o recover

for unjust enrichment, the plaintiff must establish not only that

the defendant received a benefit, but also that such a benefit was

unjust." Baker v. Equity Residential Mgmt., L.L.C., 390 F. Supp.

3d 246, 258 (D. Mass. 2019) (internal quotation omitted). Katz

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has not evinced that Sisler or Orne personally benefited from the

sale of her Special Interest. Rather, she merely posits that such

personal gain can be inferred. Yet, it was not Belveron but the

affiliated Fund, who is not a party in this lawsuit, that obtained

a portion of Katz's Special Interest from AHP. Thus, there are

no grounds on which to find that Belveron received a benefit.

iv. Tortious interference

To prevail on a claim for tortious interference with a

contract or business relations, a plaintiff must prove that: "1)

he or she has a contractual or advantageous relationship with

another, 2) the defendant knowingly induced a breach of

that contract or relationship, 3) the defendant's interference, in

addition to being intentional, was improper in 'motive' or 'means'

and 4) the plaintiff was harmed by the defendant's actions." Carp

v. XL Ins., 754 F. Supp. 2d 230, 233–34 (D. Mass. 2010) (citing

Cancellieri v. Northeast Hosp. Corp., No. CIVA 07-01659C, 2009

WL 765060, at *5 (Mass. Super. March 20, 2009).2 Even supposing

Katz had a contractual or advantageous business relationship with

the Falls View Partnership, we agree with the district court's

reasoning that no improper motive was at work. Here, Appellant

2 In the operative complaint, Katz labels her claim for
tortious interference as one with contract. However, she
discusses both types in her opposition to AHP's motion for summary
judgment. Ultimately, the District Court dismissed her claims for
tortious interference both with contract and with an advantageous
business relationship.

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avers that misrepresentations are a quintessential form of

improper means. However, given that fraud has not been

established, Katz has not shown that the Appellees employed

improper means or otherwise "acted out of any purpose beyond

the 'legitimate advancement of [their] own economic interest[.]'"

FAMM Steel, Inc. v. Sovereign Bank, 571 F.3d 93, 107 (1st Cir.

2009) (emphasis added) (quoting Pembroke Country Club, Inc. v.

Regency Sav. Bank, F.S.B., 815 N.E.2d 241, 245-46 (Mass. App. Ct.

2004)). Katz entered into a valid agreement to sell her Special

Interest, for which she was well compensated. The fact that she

could have eventually profited more had she foregone the sale and

retained her interest "does not render the defendant[s'] effort[s]

tortious." Pembroke Country Club, Inc., 815 N.E.2d at 246.

v. Chapter 93A

Chapter 93A, known as the Massachusetts Consumer

Protection Act, creates a cause of action for any person who, when

engaging in trade or commerce, suffers a loss of money or property

"as a result of the use or employment by another person who engages

in any trade or commerce of an unfair method of competition or an

unfair or deceptive act." Mass. Gen. Laws Ann. ch. 93A, § 11. In

this context, an act is deemed unfair or deceptive if it is "(1)

within the penumbra of a common law, statutory, or other

established concept of unfairness; (2) immoral, unethical,

oppressive, or unscrupulous; or (3) causes substantial injury to

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competitors or other business people." Morrison v. Toys "R" Us,

Inc., 806 N.E.2d 388, 392 (Mass. 2004). Evident from this

definition is that what constitutes "an actionable 'unfair or

deceptive act or practice' [under Chapter 93A] goes far beyond the

scope of the common law action for fraud[.]" Cardiaq Valve Techs.,

Inc. v. Neovasc Inc., No. 14-cv-12405-ADB, 2016 WL 1642573, at *5

(D. Mass. Apr. 25, 2016) (internal quotation omitted).

Conceding arguendo that unfair or deceptive practices

were at play, Katz still cannot establish the requisite loss. To

recover damages under Chapter 93A, a party must show "a causal

connection between the deception and the loss and that the loss

was foreseeable as a result of the deception." Int'l Fid. Ins.

Co. v. Wilson, 443 N.E.2d 1308, 1314 (Mass. 1983) (citing Kohl v.

Silver Lake Motors, Inc., 343 N.E.2d 375, 379 (Mass. 1976)). The

only loss Katz has alleged is that she was not able to participate

in the unexpected 2016 sale of the Property. However, none of the

alleged misrepresentations have a causal link with the subsequent

sale or increase in value of the Property. The record reflects

that the changes in the real estate market, the sale of the

Property, and the ultimate sales price of the same were all

unforeseeable. Thus, Katz cannot recover damages under Chapter

93A.

IV.

After reviewing the record in the light most favorable

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to Katz, we affirm the district court's order granting summary

judgment. Each side to bear its own costs.

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