BPR GROUP LIMITED PARTNERSHIP vs. RICHARD K. BENDETSON & others. [Note 1]

SPINA, J. The plaintiff, BPR Group Limited Partnership (BPR),

Page 854

sent notices of dissolution purporting to dissolve three real estate joint ventures with the defendants, Richard K. Bendetson (Bendetson); CDE Revere, LLC (CDE); and Carson Revere, LLC (Carson), pursuant to G. L. c. 108A, § 31 (1) (b), which allows a joint venturer in certain circumstances to dissolve unilaterally a joint venture without thereby causing a breach of the joint venture agreement. Such agreements have become known as "at-will" joint venture agreements. [Note 2] The defendants refused to acknowledge BPR's notices as effectuating dissolution under G. L. c. 108A, § 31 (1) (b), prompting BPR to file a complaint in the Superior Court seeking a declaratory judgment that its notices had dissolved the joint ventures under G. L. c. 108A, § 31 (1) (b), [Note 3] or, alternatively, decrees dissolving the joint ventures on equitable grounds under G. L. c. 108A, § 32 (1) (f). [Note 4] The defendants counterclaimed that the notices of dissolution effectively dissolved the joint ventures in contravention of the joint venture agreements under G. L. c. 108A, § 31 (2). [Note 5]

A judge in the Superior Court resolved the liability phase on cross motions for partial summary judgment in two stages. He initially addressed whether the joint ventures were at will, and ruled that they were not at will because the joint venture agreements set forth the exclusive circumstances under which they could be dissolved. The judge further concluded that the notices operated to dissolve the joint ventures in contravention of the joint venture agreements. However, he expressly gave BPR leave to show that it was entitled to an order of equitable dissolution. After the parties conducted further discovery, he considered whether dissolution was appropriate on equitable grounds. He

Page 855

allowed the defendants' motion for summary judgment as to the counts of BPR's complaint seeking decrees of dissolution on equitable grounds, which had the effect of reaffirming his earlier ruling that the joint ventures were dissolved in contravention of the joint venture agreements by BPR's notices.

Following a trial to determine the value of BPR's interest in the joint ventures as of the date of the dissolutions and the damages, if any, incurred by the defendants as a result of the dissolutions, an order issued awarding BPR $2,759,098, less the defeasance fees associated with two mortgages on property belonging to the joint ventures; the costs of refinancing those mortgages; and postdissolution distributions made to BPR. BPR's request for prejudgment interest was denied.

BPR appealed, arguing that the joint ventures were at will, and even if they were not at will, the judge should have held an evidentiary hearing to determine whether the joint ventures should have been dissolved on equitable grounds. It further argues that assuming the joint ventures were dissolved in contravention of the joint venture agreements, the judge erred in concluding that the defeasance fees and costs of refinancing resulted from the dissolution, and in denying BPR's request for prejudgment interest. We transferred the case to this court on our own motion.

Considerable confusion has resulted from the fact that the liability phase of this case occurred in two stages of motions for partial summary judgment. As we explain infra, for purposes of this appeal, by abandoning certain positions, the parties implicitly have accepted the judge's determinative structure of the case, namely, that the joint ventures would be deemed dissolved by notice in contravention of the joint venture agreements unless BPR could prove it was entitled to equitable dissolution. More specifically, BPR has abandoned its claim that a notice purporting to dissolve an at-will joint venture is ineffective to dissolve a joint venture that is not at will. Similarly, the defendants have abandoned their claim that BPR is not entitled to equitable dissolution where the judge earlier ruled the agreements were dissolved by notice.

For the reasons that follow, we agree with the judge that the joint ventures were not at will because the joint venture agreements set forth the circumstances under which the joint ventures

Page 856

could be dissolved. However, because we conclude that a genuine issue of material fact exists concerning the counts of BPR's complaint seeking decrees of dissolution of the joint ventures pursuant to G. L. c. 108A, § 32 (1) (f), we reverse the grant of partial summary judgment on those counts. We also address BPR's arguments concerning damages in the event that BPR does not succeed on its claim for equitable dissolution under G. L. c. 108A, § 32 (1) (f), on remand.

1. Background. We summarize the following additional facts, [Note 6] reserving details concerning damages for later discussion.

Atlantic Corporation, Bendetson, Robert L. Buonato (Buonato), Herbert Carver, and C. Gerard Drucker entered into three joint venture agreements in 1980 and 1981. [Note 7] The joint ventures were formed for purposes of acquiring, operating, and developing several parcels of real estate. Section 4 of all three agreements states:

"Term. This Agreement shall commence as of the date hereof and shall continue and not be dissolved or terminated except as hereinafter provided."

Section 11 of each agreement provides:

"This Joint Venture shall terminate upon the first to occur of the following events:

"1. Upon notice of any non-defaulting Member, if any other Member shall fail to perform his or its obligations hereunder and such default shall continue uncured for a period of at least sixty (60) days after written notice thereof from the party claiming such default; the party desiring to terminate under this provision shall, after the expiration of the sixty (60) day period, give one (1) month's written notice of his or its intention to terminate.

Page 857

"2. Upon the conveyance of all the real estate comprising the Property.

"3. At the option of any Member not in default within a reasonable time after notice that any other Member shall have had filed by or against him pursuant to a statute of the United States or of any statute, a petition in bankruptcy or insolvency or for the appointment of a receiver or trustee of all or a portion of such other party's assets and such other party fails within sixty (60) days to secure a discharge thereof, or if such other party shall make an assignment for the benefit of creditors or petition for or voluntarily enter into an arrangement for the benefit of creditors.

"4. By mutual agreement of all of the Members."

The agreements further provide that Bendetson's company, Diversified Funding, Incorporated (Diversified), would manage the properties of the joint ventures.

Buonato's interests subsequently were assigned to BPR, the vehicle through which Buonato, his wife, Barbara Buonato, and their son, Robert, participate in the joint ventures. Drucker's interests, including his one-half share of Atlantic Corporation's interest, were transferred to CDE. Carver's interests, including Atlantic Corporation's other half-share, were transferred to Carson.

In the late 1990's, relations between Buonato and Bendetson began to sour. In or around 1997, Buonato found it increasingly difficult to obtain information about the properties from Bendetson directly and resented being referred to Bendetson's chief financial officer, Garry Cuneo, for such information. Buonato also became concerned that Diversified was letting at least one of the properties "slide into a slum," observing that the hallways, elevator, and grounds were in unsatisfactory condition. [Note 8]

In or around October, 1999, Buonato and his wife expressed their dissatisfaction with Bendetson to Drucker. In addition to their concerns about Bendetson's management of the joint venture property, they were upset that Bendetson had ignored their

Page 858

requests to pay off a loan made by Bendetson's father to a Buonato-Bendetson real property endeavor unaffiliated with the joint ventures. The interest on the loan was eighteen per cent and yielded a $750 monthly interest payment to Bendetson's father.

In or around March, 2000, Buonato learned that $300,000 had been transferred from the joint ventures' account to Bendetson's personal account. [Note 9] Bendetson subsequently replaced the $300,000, and later explained that Cuneo had transferred the money without Bendetson's knowledge. Carver and Drucker were satisfied with Bendetson's explanation and replacement of the funds, but Buonato was not. Buonato suspected that Bendetson had misappropriated the money from the joint ventures, and had worked out some sort of deal with Carver and Drucker.

A meeting between the joint venturers was scheduled for August 16, 2000. Bendetson suggested that the Buonatos (on behalf of BPR), Carver, and Drucker submit questions for him before the meeting so he could prepare for the meeting. Buonato sent Bendetson a number of questions primarily concerned with the finances of the joint ventures. A couple of weeks before the meeting, Drucker drafted and circulated an agenda to all the joint venturers, which incorporated many of Buonato's questions and concerns. The meeting was not successful. Bendetson began the meeting by reading from a prepared statement, which angered Buonato who apparently expected Bendetson to answer the questions he had sent to him beforehand. When Bendetson declined to answer Buonato's questions, Buonato got out of his chair and began to yell at Bendetson. Drucker attributed Buonato's conduct to "a history and a litany of things that have built up to that day," and later admitted that it was fair to say that Buonato and Bendetson could not stand one another and that the relationship had been damaged beyond repair. [Note 10]

By December, 2003, at least four other real estate endeavors involving the Buonato family and Bendetson had also deteriorated and were the subject of litigation. Buonato was particularly

Page 859

upset about a lawsuit Bendetson brought against his son, Robert, to recover excess distributions Robert had received from one of the real estate endeavors. The acrimony wrought by these litigations hardened Buonato's lack of trust in Bendetson, which spilled over into the joint ventures. Bendetson characterized the nature of communications between the Buonato family and himself from 2000 to 2003 as "[s]trained."

On December 22, 2003, Buonato, as president of BPR, sent notices of dissolution of all three joint ventures to the defendants. As the ground for dissolution, these notices cited G. L. c. 108A, § 31 (1) (b), which provides that a partnership may be dissolved at any partner's election if the agreement lacks a "definite term" or "particular undertaking."

On January 13, 2004, BPR filed a complaint in the Superior Court, seeking, inter alia, a declaratory judgment that the notices dissolved the joint ventures under G. L. c. 108A, § 31 (1) (b), or alternatively, decrees of dissolution pursuant to G. L. c. 108A, § 32 (1) (f). The defendants answered, denying that dissolution was governed by G. L. c. 108A, § 31 (1) (b), and counterclaimed that BPR's dissolution was in contravention of the agreements. On cross motions for partial summary judgment as to whether the joint ventures were at will, BPR and the defendants agreed that termination had not occurred under § 11 of the joint venture agreements, but disagreed as to whether the notices dissolved the joint ventures under G. L. c. 108A, § 31 (1) (b), or G. L. c. 108A, § 31 (2). [Note 11] The judge concluded that §§ 4 and 11 were "sufficiently definite terms as to how the agreements are to be dissolved to make the agreements not at will." He concluded that BPR's notices dissolved the joint ventures in contravention of the joint venture agreements under G. L. c. 108A, § 31 (2). [Note 12] However, he also indicated that he would consider giving BPR an opportunity to show that it was entitled to equitable dissolution under G. L. c. 108A, § 32 (1) (f).

Page 860

After the parties conducted further discovery, the judge considered the defendants' motion for partial summary judgment with respect to the counts of BPR's complaint seeking equitable dissolution of the joint ventures pursuant to G. L. c. 108A, § 32 (1) (f). See note 4, supra. BPR, citing the discord between BPR's members and Bendetson, opposed the motion. In April, 2006, the judge allowed the defendants' motion, reasoning that Buonato's loss of confidence in Bendetson did not fall within any of the circumstances enumerated under G. L. c. 108A, § 32 (1) (c)-(e), and thus did not fall under G. L. c. 108A, § 32 (1) (f). The judge noted that the joint ventures had been highly profitable, that Buonato had seldom been involved in their day-to-day operation, and that neither CDE nor Carson had any expressed concern about Bendetson's management of the joint ventures' properties.

After a trial to determine the value of BPR's interests in the joint ventures and the damages suffered by the defendants as a result of the dissolutions, the judge, using the going concern method, see Anastos v. Sable, 443 Mass. 146, 149 (2004), found that BPR's interest was worth $2,759,098. He also found that, if the defendants refinanced two mortgages on two properties to raise money to buy BPR's interests, the defendants would incur damages in the form of defeasance fees and other costs associated with refinancing, and would be entitled to deduct those costs from BPR's judgment. [Note 13] The judge additionally ordered the deduction of any distributions made to BPR after December 23, 2003.

The defendants subsequently submitted an affidavit stating that the defeasance fees and refinancing costs totaled $352,103.72. That amount was later reduced to $311,843.40 to account for the savings inuring to the defendants as a result of refinancing. After deducting the refinancing costs, including the defeasance fees, and $548,313.47 in postdissolution profits distributed to BPR, judgment in the amount of $1,898,941.13 entered for BPR.

2. Discussion. (a) Dissolution under G. L. c. 108A, § 31 (1).

Page 861

Although this case involves joint ventures, the Uniform Partnership Act (UPA), codified at G. L. c. 108A, §§ 1 et seq., "is generally applicable to joint ventures by analogy, though it does not govern directly." Doiron v. Castonguay, 401 Mass. 705, 707 n.2 (1988). The UPA "is intended to be a type of 'form contract.' " Meehan v. Shaughnessy, 404 Mass. 419, 430 n.7 (1989). Consequently, parties may vary the provisions of the UPA, which generally supplies default terms. See, e.g., id. This case requires us to determine the extent to which §§ 4 and 11 of the joint venture agreements varied the dissolution provisions set forth in G. L. c. 108A, § 31 (1).

Section 31 (1)-(5) enumerates the ways in which a partnership may be dissolved by actions of the partners themselves. See Infusaid Corp. v. Intermedics Infusaid, Inc., 739 F.2d 661, 665-666 (1st Cir. 1984). Under this section, a partner causes dissolution "by his 'express will . . . at any time.' " Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 591 (1975), quoting G. L. c. 108A, § 31. The consequences flowing from dissolution by express will depend on whether the dissolution occurred without violation, or in contravention, of the agreement. See G. L. c. 108A, §§ 31 (1)-(2), 38.

General Laws c. 108A, § 31 (1), provides, in pertinent part, that dissolution is caused:

"(1) Without violation of the agreement between the partners,

"(a) By the termination of the definite term or particular undertaking specified in the agreement,

"(b) By the express will of any partner when no definite term or particular undertaking is specified . . ." [Note 14] (emphasis added).

Section 31 (2) states that dissolution occurs:

"In contravention of the agreement between the partners,

Page 862

where the circumstances do not permit a dissolution under any other provision of this section, by the express will of any partner at any time . . ." (emphasis added).

In addition to several other causes of dissolution not here relevant, see G. L. c. 108A, § 31 (3)-(5), dissolution also may be caused "[b]y decree of court under section thirty-two." G. L. c. 108A, § 31 (6). In contrast to G. L. c. 108A, § 31, dissolution under G. L. c. 108A, § 32, occurs on application by or for a partner to a court. See Infusaid Corp. v. Intermedics Infusaid, Inc., supra at 665. Under G. L. c. 108A, § 32, a court may decree dissolution if:

"(a) A partner has been declared a lunatic in any judicial proceeding or is shown to be of unsound mind,

"(b) A partner becomes in any other way incapable of performing his part of the partnership contract,

"(c) A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business,

"(d) A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him,

"(e) The business of the partnership can only be carried on at a loss,

"(f) Other circumstances render a dissolution equitable."

If a partnership is "at will," i.e., it lacks a "definite term" or "particular undertaking," G. L. c. 108A, § 31 (1) (b), dissolution by express will occurs "[w]ithout violation of the agreement between the partners," § 31 (1), and, unless the partnership agreement provides otherwise, the dissolving partner is entitled to compel liquidation of the partnership's assets to pay the partnership's debts and obtain a cash amount commensurate with the dissolving partner's interest. See G. L. c. 108A, § 38 (1). If,

Page 863

however, a partnership is dissolved "in contravention of the agreement between the partners," § 31 (2), then the dissolving partner is liable for any damages caused by dissolution, see G. L. c. 108A, § 38 (2) (a) (II), and the remaining partners may elect to continue the partnership for the duration of the agreed-upon term or particular undertaking. See G. L. c. 108A, § 38 (2) (b). In the case of a wrongful dissolution, the value of the dissolving partner's interest is determined according to the going concern method, see Anastos v. Sable, supra at 152, which may entitle the dissolving partner to less than the partner would have received had dissolution not occurred in contravention of the partnership agreement. See, e.g., id. (applying forty per cent minority shareholder discount to value of partnership's net assets).

The first question raised is whether the joint ventures were at will. If the agreements were at will, and if BPR's notices dissolved the joint ventures, then BPR was entitled to compel liquidation of the partnership's assets and a judgment. If, however, the agreements were not at will and the notices dissolved the joint ventures in violation of the joint venture agreements, then the remaining partners could elect to continue the joint ventures, BPR's interest properly was valued according to the going concern method, and BPR was liable for damages resulting from the dissolutions.

We conclude that the joint venture agreements were not at will. In its brief, BPR focuses on whether the joint venture agreements specify "definite terms" or "particular undertakings." G. L. c. 108A, § 31 (1). However, analysis under G. L. c. 108A, § 31 (1) (b), is inapposite. The UPA applies only "when there is either no partnership agreement governing the partnership's affairs, the agreement is silent on a particular point, or the agreement contains provisions contrary to law." Creel v. Lilly, 354 Md. 77, 99 (1999). See Meehan v. Shaughnessy, supra at 430 n.7. Where an agreement addresses a particular issue, the terms of the agreement control, and the rights and obligations of the parties are determined by reference to principles of contract law. See Knapp v. Neptune Towers Assocs., 72 Mass. App. Ct. 502, 508 n.9 (2008) ("Courts interpret partnership agreements in accordance with general contract principles"); 2 A.R. Bromberg & L.E. Ribstein, Partnership § 6.01 (c), at 6:6- 6:7 n.4 (Supp. 2008).

Page 864

See also Chokel v. Genzyme Corp., 449 Mass. 272, 278 (2007) (rights of shareholders arising under contract governed by principles of contract law and not by fiduciary principles that would otherwise apply). Thus, an agreement specifying the circumstances under which a partnership may be dissolved is not at will. [Note 15] See In re Popkin & Stern, 340 F.3d 709, 714 (8th Cir. 2003) (partnership agreement's dissolution terms supplanted Missouri UPA); Dental Health Assocs. v. Zangeneh, 34 A.D.3d 622, 624 (N.Y. 2006) (partnership not dissolved under statute by noticing other partner of dissolution where noticing other partner was insufficient to dissolve partnership under partnership agreement); Hunter v. Straube, 273 Or. 720, 726-730 (1975) (filing lawsuit dissolved partnership in contravention of partnership agreement specifying circumstances under which partnership could be dissolved). See also Cominos v. Kalkanes, 37 Wash. 2d 843, 848 (1951) ("It is always open to parties to provide in any agreement they may make, how and under what circumstances, their business relationship may be terminated").

Here, § 11 of the joint venture agreements addresses dissolution; it specifies that dissolution may transpire in four circumstances, none of which had occurred here. When read in conjunction with § 4, which provides that dissolution may not occur except as provided by the joint venture agreement, § 11 demonstrates that the joint ventures are not at will. Therefore, G. L. c. 108A, § 31 (1) (b), does not apply. See In re Popkin & Stern, supra; Dental Health Assocs. v. Zangeneh, supra; Hunter v. Straube, supra. See also Meehan v. Shaughnessy, supra at 433 n.12. [Note 16] Accordingly, dissolution, if not warranted by G. L.

Page 865

c. 108A, § 32 (1) (f), occurred "[i]n contravention of the agreement between the partners . . . ." G. L. c. 108A, § 31 (2).

As previously noted, in his ruling that the joint ventures were not at will and that they had all been dissolved by BPR's notices of dissolution dated December 22, 2003, the judge allowed BPR the opportunity to show it was entitled to equitable dissolution. The parties moved for clarification and reconsideration. The defendants sought clarification as to how there could be equitable dissolution when the judge found dissolution occurred by notice. The judge recognized the understandable confusion in his ruling, and he issued a written decision that emphasized his conclusion that "the three joint ventures were dissolved by BPR pursuant to G. L. c. 108A, [§] 31 (2), on December 22, 2003, in a manner that was in contravention of the joint venture agreements," but he stated he was giving BPR the opportunity to show, as alleged in its complaint, that it was entitled to equitable dissolution, basically nunc pro tunc to December 21, 2003. He acknowledged he was proceeding in this manner because the different theories of dissolution that were raised in the case were not being presented to him at the same time, but rather in serial manner.

Thereafter BPR abandoned its argument that the December 22, 2003, notices of dissolution were expressly invoking the authority of § 31 (1) (b), and that they could not effectuate dissolution under § 31 (2), as the judge found. See Fischer v. Fischer, 197 S.W.3d 98, 106 (Ky. 2006) (letter claiming to dissolve allegedly at-will partnership under statutory equivalent of § 31 [1] [b] ineffective to dissolve partnership that was not at will). In addition, the defendants do not argue, as they did below, that BPR's notices of dissolution dissolved the joint ventures when the defendants received the notices, obviating the possibility of equitable dissolution under § 32 (1) (f).

(b) Judicial dissolution under G. L. c. 108A, § 32 (1) (f).

Page 866

BPR argues that even if the joint ventures were not at will, there exists a genuine issue of material fact requiring an evidentiary hearing to determine whether the deterioration in Buonato and Bendetson's relationship warranted dissolution under G. L. c. 108A, § 32 (1) (f), [Note 17] and the judge erred by granting summary judgment on this issue to the defendants.

At the outset, we note that the defendants do not claim that § 4 of the joint venture agreements precludes recourse to dissolution under § 32 (1) (f). See Cooper v. Isaacs, 448 F.2d 1202, 1206 (D.C. Cir. 1971) (partnership agreement specifying how partnership could be terminated did not foreclose possibility of dissolution under D.C.'s equivalent to § 32); Imperial Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 76 (Ct. App. 1986) (same under Arizona law).

We have not had occasion to consider when "[o]ther circumstances render a dissolution equitable." § 32 (1) (f). However, in Ferrick v. Barry, 320 Mass. 217, 222 (1946), we affirmed a decree of dissolution under § 32 (1) (d): "The conduct of [the defendant] had brought about a situation in which the business could no longer be carried on jointly in the manner contemplated by the articles of co-partnership. The other partners were not required to submit to [the defendant's] domination or to continue in an atmosphere of non-cooperation, suspicion, and distrust, even though [the plaintiff] was not actually dishonest, and even though substantial profits were being made." Many of the considerations rendering judicial dissolution of that partnership appropriate would apply to any case where dissension among partners seriously impairs the ability of the partners to conduct the partnership, see Gerard v. Gateau, 84 Ill. 121, 124-125 (1876); Fooks v. Williams, 120 Md. 436, 441 (1913); Singer v. Heller, 40 Wis. 544, 547 (1876); and are applied by other courts in the context of statutory provisions similar to § 32 (1) (f). [Note 18] See Karber

Page 867

v. Karber, 145 Ariz. 293, 295 (Ct. App. 1984); Mayhew v. McGlothlin, 269 Ky. 184, 186 (1937); Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 238-239 (1989); H.J. Alperin, Summary of Basic Law § 14.32, at 73 (2008). See also 48A C.J.S. Joint Ventures § 20, at 340-341 (2004). Neither a partner's curmudgeonly disposition, see Gerard v. Gateau, supra at 124, nor a simple difference of opinion in business judgment, see Potter v. Brown, 328 Pa. 554, 561-562 (1938), normally will suffice to dissolve a partnership under § 32 (1) (f). Rather, § 32 (1) (f) requires that dissension among the partners be so serious, irreconcilable, and permanent that it would be inequitable to require them to continue as partners. H.J. Alperin, supra at § 14.32, at 74. A nonexhaustive list of considerations relevant to an application for dissolution under § 32 (1) (f) includes: (1) the extent of the dissension [Note 19]; (2) the relative fault of the partners in creating and contributing to dissension [Note 20]; (3) the profitability of the partnership

Page 868

notwithstanding partner dissension [Note 21]; (4) the involvement of the partners in the day-to-day operations of the partnership [Note 22]; and (5) whether dissolution would work a substantial financial detriment to the value of the partnership business. [Note 23]

Viewing the facts in the light most favorable to BPR, see Beal v. Selectmen of Hingham, 419 Mass. 535, 539 (1995), we conclude that the judge should have denied the defendants' motion for partial summary judgment with respect to the counts of BPR's complaint seeking equitable dissolution. In addition to the disputes concerning Bendetson and Buonato's other business dealings, there is evidence that the relationship between Bendetson and Buonato had deteriorated to the point where they no longer could stand to be in a room with one another. By 2000, any confidence between them had been destroyed, and both desired to end their dealings with one another. Moreover, there was some evidence that Buonato monitored the condition of the joint venture properties and that Bendetson ignored Buonato's concerns about the maintenance and condition of the properties. Factors weighing against dissolution, including the financial success of the joint ventures and the fact that Carver and Drucker also would suffer any consequences resulting from dissolution even though they do not appear to have contributed significantly, if at all, to the acrimony between Buonato and Bendetson, also should be

Page 869

considered. The weight given to each factor and the balancing of the relative weight of each factor, however, should ordinarily be determined by a trier of fact. Given the breakdown in communication between Buonato and Bendetson, and Buonato's involvement in the affairs of the joint venture, we think a genuine issue of material fact exists as to whether dissension between BPR's members and Bendetson justified dissolution of the joint ventures under § 32 (1) (f).

(c) Damages. We address BPR's contentions concerning damages and prejudgment interest in the event that BPR does not prevail under § 32 (1) (f) on remand. The judge found that if the defendants elected to satisfy the plaintiff's judgment by refinancing two mortgaged properties belonging to the joint ventures, defeasance fees might be assessed against the joint ventures under the terms of the preexisting mortgages and the defendants would incur other costs related to refinancing. He made no specific findings concerning those expenses because they had not yet been incurred. The defendants' counsel subsequently submitted an affidavit from the mortgagee's attorney stating that the defeasance fees and refinancing costs totaled $352,103.72. [Note 24]

On appeal BPR asserts that the judge erroneously ordered the deduction of the defeasance fees and costs of refinancing because the defendants voluntarily incurred those costs to satisfy the judgment. We disagree. A review of the mortgage documents [Note 25]

Page 870

indicates that BPR's commencement of dissolution proceedings constituted a default on the mortgages, and thereby rendered the joint ventures liable for the payment of the balance of both mortgages and certain defeasance fees. See note 25, supra. To the extent BPR argues that the defaults could have gone unnoticed by the mortgagee had the defendants not refinanced the mortgages to satisfy the judgment, the simple fact is that dissolution of the joint ventures rendered the joint ventures liable for the balance of the mortgages as well as any defeasance fees.

(d) Prejudgment interest. BPR's contention that the judge erred in not awarding it prejudgment interest lacks merit. In Anastos v. Sable, 443 Mass. 146, 154 (2004), we held that nothing in G. L. c. 108A, § 38 or § 42, "provides interest on the buyout amount for the partner who caused a wrongful dissolution and who thereby departs the partnership." The fact that the judge here ordered the deduction of postdissolution distributions received by BPR from BPR's judgment does not alter our conclusion that nothing in G. L. c. 108A, § 38, entitles a partner who wrongfully dissolves a partnership to prejudgment interest.

BPR asserts that G. L. c. 108A, § 5, [Note 26] authorizes an award of prejudgment interest. BPR has cited no authority for this proposition or otherwise argued that equitable circumstances warrant such an award. See, e.g., Shulkin v. Shulkin, 301 Mass. 184, 186-187 (1938) (award of interest equitable where two partners withdrew twice as much from business's account as third partner). It has therefore waived the issue. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). In any event, we seriously doubt that an award of prejudgment interest is appropriate where a partner or joint venturer has wrongfully dissolved a partnership. Cf. Marchand v. Murray, 27 Mass. App. Ct. 611, 616 (1989)

Page 871

(equities not sufficiently compelling to warrant award of prejudgment interest to partner who breached partnership agreement).

3. Conclusion. For the foregoing reasons, we affirm so much of the judgment that ruled that BPR could not dissolve the joint ventures pursuant to G. L. c. 108A, § 31 (1) (b). We reverse so much of the judgment that dismissed the counts of BPR's complaint seeking decrees of dissolution under G. L. c. 108A, § 32 (1) (f), and remand that issue for further proceedings consistent with this opinion.

So ordered.

GANTS, J. (concurring in part). I concur in each of the court's conclusions but respectfully disagree with the court's reasons for reversing the judge's allowance of summary judgment against BPR Group Limited Partnership (BPR) as to the counts of BPR's complaint seeking equitable dissolution of the joint ventures under G. L. c. 108A, § 32 (1) (f). The court concludes that the judge's grant of summary judgment dismissing these counts was error because "a genuine issue of material fact exists as to whether dissension between BPR's members and [Richard] Bendetson justified dissolution of the joint ventures under § 32 (1) (f)." Ante at 869. If these counts were not equitable in nature, I would agree that the existence of a genuine issue of material fact would require the denial of summary judgment. Where, as here, the defendants have moved for summary judgment as to the plaintiff's equitable claims, however, the analysis must differ.

When a judge evaluates a claim for equitable relief, the judge does more than find the facts; he also must determine, based on those facts, whether equitable relief would be in the interests of justice. In considering a motion for summary judgment when material facts are in dispute, a judge appropriately may determine that, even viewing the facts in the light most favorable to the plaintiff, he still would not conclude that equitable relief was warranted in light of the balance of equities. In such a case, summary judgment would be appropriate despite the existence of disputed material facts, because even were the case to be tried and the plaintiff to establish in his favor all the contested factual

Page 872

issues, equitable relief still would be denied. Indeed, if the judge has already reached that conclusion on summary judgment, a trial would be a needless waste of time and effort.

In the circumstances just described, a reviewing court would simply need to determine, based on the view of the evidence most favorable to the plaintiff, whether it was an abuse of discretion for the judge to have denied the equitable relief sought by the plaintiff. See Demoulas v. Demoulas, 428 Mass. 555, 589 (1998), and cases cited. There is nothing in the court's decision to suggest that, even viewing the evidence in the light most favorable to BPR, it would have constituted an abuse of discretion for the judge to have denied BPR the equitable relief it sought on summary judgment. Granting BPR the benefit of all disputed facts, there continue to be key undisputed facts that would militate against BPR's claim for equitable relief: the joint ventures had been profitable, only one of the four equal participants had lost confidence in Bendetson's management of the joint ventures, and, perhaps most importantly, the commencement of dissolution proceedings constituted a default on the joint ventures' mortgages, triggering substantial defeasance fees and refinancing costs.

I join in the court's decision to reverse the grant of summary judgment as to BPR's equitable claims only because it is not plain from the judge's decision that he considered the question of equitable relief in the factual light most favorable to BPR, and a remand to clarify this matter is not practicable in light of the judge's retirement from the bench. Without an explicit declaration by the judge that he viewed the evidence in the light most favorable to the plaintiff and still concluded that equitable relief would not be just or warranted, it would be inappropriate for this court to conclude that the judge had applied that analytical approach in allowing summary judgment.