Weston Nurseries, Inc.

1The parties have filed multiple pleadings on the issue of whether C&W is entitled to
receive a commission from the Debtor. See C&W’s Application for Compensation [#614],
Debtor’s Limited Objection to C&W’s Fee Application [#628], Supplemental Statement of
C&W Relative to Its fee Application [#696], Debtor’s Motion for Summary Judgment
[#698],Debtor’s Objection to Supplemental Statement of C&W Relative to Its Fee Application
[#699], Response of C&W to Debtor’s Motion for Summary Judgment [#794], and Debtor’s
Reply to Response of C&W to Debtor’s Motion for Summary Judgment [#813].
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UNITED STATES BANKRUPTCY COURT
FOR THE
DISTRICT OF MASSACHUSETTS
In re:
WESTON NURSERIES, INC.,
Debtor.
Case No. 05-49884 JBR
Chapter 11
ORDER ON MOTION OF CUSHMAN & WAKEFIELD OF
MASSACHUSETTS, INC. TO ALTER OR AMEND JUDGMENT
This matter came before the Court on the Motion of Cushman & Wakefield of
Massachusetts, Inc. (“C&W”) to Alter or Amend Judgment [# 820] pursuant to Fed. R. Bankr. P.
7052 and 9023. The judgment which C&W seeks to have amended or altered is the Order of
April 14, 2008 [# 818] granting the Debtor’s motion for summary judgment [# 698] and denying
C&W’s fee application [# 614].1
This dispute began almost one year ago with the filing of C&W’s fee application and
arises from a dispute over whether C&W is entitled to a commission for a sale of property that
occurred after C&W’s broker’s contract expired. The Court answered that question in the
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2Mezag subsequently commenced its own Chapter 11 proceedings.
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negative and set forth its reasoning in its Memorandum of Decision [#817] issued
contemporaneously with its April 14, 2008 Order. C&W argues that the Court made factual
errors which, at the very least, precluded granting summary judgment. The Debtor filed an
opposition [#821] to the Motion to Alter or Amend.
The Court, having reviewed all of the pleading relevant to this contested matter and
having determined that no further hearing is necessary, DENIES the Motion to Alter or Amend
for the reasons set forth herein.
FACTS
On October 14, 2005 (the “Petition Date”) the Debtor filed a voluntary petition pursuant
to Chapter 11 of the United States Bankruptcy Code. Prior to the Petition Date, Mezitt
Agricultural Corporation (“Mezag”),2 and Roger N. Mezitt and R. Wayne Mezitt, on their own
behalf and not as officers of the Debtor, retained C&W to market between 600 and 700 acres of
land in Hopkinton, MA (the “Property”) pursuant to a letter agreement dated February 17, 2005.
In June 2006 the Court authorized the Debtor to add its land to the Property to be sold and to join
Mezag and the Mezitts in employing C&W on essentially the same terms and conditions set forth
in the February 17, 2005 letter agreement. The new letter agreement, dated only “February
2006" (the “Brokerage Agreement”), extended the expiration date of the Agreement to June 30,
2006.
Paragraph 7 of the February 17, 2006 agreement, which was incorporated into the
Brokerage Agreement, provides in pertinent part:
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3The reports are attached to the Supplemental Statement of C&W Relative to Its Fee
Application. Although the Affidavit of Marci Loeber, C&W’s authorized representative was
also attached to the Supplemental Statement and although both the Supplemental Statement and
the Motion to Alter or Amend Judgment refer to the Marketing Statements, among other things,
as exhibits to Ms. Loeber’s affidavit, the Marketing Reports were not exhibits to Ms. Loeber’s
affidavit. Her affidavit does not refer to the Marketing reports nor does it reference any
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In the event that: (i) at any time during the term of the Agreement,
a Sale occurs, on any terms acceptable to Owner, with any
Purchaser who was procured by C&W, or by Owner, or by any
other person; or (ii) within 6 months after the expiration or
termination of this Agreement, a [sic] an agreement for a Sale is
executed by Owner on any terms acceptable to Owner with any
Prospect and prior to, and during such six (6) month period
immediately after, [sic] the expiration or termination of this
Agreement, C&W has continued to participate actively in the
negotiations with such Prospect on a best efforts basis, except to
the extent Owner otherwise requests; then, and in either such
event, Owner agrees to pay to C&W a sales commission....
The February 17, 2006 agreement defines ‘Prospect” as:
A Purchaser in a Sale for which the Closing occurs pursuant to an
agreement of sale executed within the six (6) month period
immediately following the expiration or termination of this
Agreement, provided that (i) prior to the expiration or termination
of this Agreement, such Purchaser engaged in substantive
discussions with, and made a written proposal to, C&W regarding
a Sale, (ii) such purchaser visited the Property prior to the
expiration or termination of this Agreement, and (iii) such
Purchaser is identified by C&W in a written list provided to the
Owner within ten (10) days after the expiration or termination of
this Agreement.
No sale occurred prior to the expiration of the Brokerage Agreement but in December
2006 a purchase and sale agreement between the sellers, including the Debtor, and the Boulder
Company was executed. The sale subsequently was consummated in 2007.
Prior to the sale, C&W delivered a “Marketing Status Report-Hopkinton Farms,
Hopkinton, MA” at various times although it is unclear when and to whom the Marketing
Reports were delivered. 3 The Marketing Reports dated February 15, 2005 and March 4, 2005 do
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attachments or exhibits to the affidavit. Nevertheless there does not appear to be a dispute that
these lists were generated by C&W and, with respect to the Marketing Reports of June 20, 2006
and July 11, 2006, delivered to the Debtor. Therefore the Court will make reference to them.
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not list the Boulder Company or its principal, Roy MacDowell. The June 20, 2006 Report lists
“The MacDowell Company” as passing on the Property and in the column styled “comments”
was the notation “no interest.” There was no mention of the Boulder Company, Mr. MacDowell
or The MacDowell Company on the July 11, 2006 list.
DISCUSSION
C&W seeks the amendment or alteration of the April 14, 2008 Order pursuant to Rules
7052 and 9023 of the Federal Rules of Bankruptcy Procedure. The Debtor asserts that Fed. R.
Bankr. P. 9024 is the appropriate rule to govern these proceedings as this contested matter was
not decided after a trial but rather on motion. A motion to reconsider is governed by Fed. R.
Civ. P. 59(e) made applicable to bankruptcy cases by Fed. R. Bankr. P. 9023 or Fed. R. Civ. P.
60 made applicable to bankruptcy cases by Fed. R. Bankr. P. 9024. In many respects the
standards to be applied under the rules are the same; for example the standards for granting relief
for newly discovered evidence are the same under both rules. In re Reading Broadcasting, Inc.,
2008 WL 1828821, *3 (Bankr. E.D.Pa. 2008). Procedurally they differ in that Fed. R. Civ. P. 59
requires motions for reconsideration to be filed within ten days of the order. “A timely motion
under Rule 59 destroys the finality of the judgment....” Coquillette, et al., 12 Moore's Federal
Practice, § 59.12[1] at 59-38 (3d ed.2007).
Because of this issue of finality, a motion filed within ten days of
the entry of an order or judgment that seeks trial court
reconsideration or a new trial is treated as a motion under Rule 59
rather than Rule 60(b) regardless of its title. See Law Offices of
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William W. McVay v. Szeg, 2006 WL 2850627, at *4
(W.D.Pa.2006) (“[A]ny post-judgment motion served within ten
days after the entry of judgment, other than a motion to correct
clerical errors, ‘is within the unrestricted scope of Rule 59(e) and
must, however designated by the movant, be considered as a Rule
59(e) motion ....‘ “ (quoting Harcon Barge Co., Inc. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 668 (5th Cir.1986)); In re Earle
Industries, Inc., 86 B.R. 386, 387 (E.D.Pa.1988); Creative Data
Forms, Inc. v. Pennsylvania Minority Business Development
Authority, 72 B.R. at 621-22.
In re Reading Broadcasting, Inc., 2008 WL 1828821, *4.
However denominated “the purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered evidence. A party may not submit
evidence that is not newly discovered in support of a motion for reconsideration.” Harsco Corp.
v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert denied, 476 U.S. 1171 (1986) (citations
omitted). A motion for reconsideration is appropriate when there has been a significant change
in the law or facts since the submission of the issue to the court; it is not a vehicle for an
unsuccessful party to rehash the same facts and same arguments previously presented. Keyes v.
National Railroad Passenger, 766 F. Supp. 277, 280 (E.D.Pa. 1991).
C&W challenges what it characterizes as the three reasons for the Court’s April 14, 2008
Order. First, it argues that the Court erroneously found that the Boulder Company did not enter
into a purchase and sale agreement within the time frame called for under C&W’s employment
contract. C&W is correct that the Debtor and Boulder entered into the purchase and sales
agreement in December 2006, within six months of the expiration date. This fact, however, is
not a basis for reversal of the April 14, 2008 Order. Rather it establishes that C&W cannot
recover under Paragraph 7(i)of the Brokerage Agreement. C&W is only entitled to a
commission if it can demonstrate that the requirements of Paragraph 7(ii) were satisfied. As set
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forth in the April 14, 2008 Memorandum of Decision, to satisfy Paragraph 7(ii), C&W must
establish that Boulder was a “Prospect.”
C&W’s second and third grounds for challenging the April 14, 2008 Order squarely
relate to the question of whether the Boulder Company was a Prospect. C&W argues that it was
because there was a written offer prior to the expiration of the Brokerage Agreement and
because the Boulder Company was on the list of “Prospects” that was timely provided to the
Debtor.
There are three requirements to establish that the ultimate purchaser was a Prospect.
First, prior to the expiration of the Brokerage Agreement, Boulder must have engaged in
substantive discussions with, and made a written proposal to, C&W regarding a Sale. C&W
argues that it satisfied the first requirement when it produced a March 15, 2005 letter proposal
and then a September 2005 Offer Memorandum. Specifically C&W argues
In support of its position [that prior to the expiration of the
Brokerage Agreement, Boulder had substantive discussions with
and provided a written offer to C&W], C&W submitted the
Affidavit of Marci Loeber which indicated, inter alia, that such a
written proposal did exist. There was no counteraffidavit filed by
the Debtor to attempt to refute the statement in her affidavit.
Annexed hereto and marked exhibit 2 is a copy of the written
proposal dated March 15, 2005 from Boulder capital, LLC, signed
by Roy S. MacDowell, Jr., to Marci Griffith Loeber of C&W.
Ms. Loeber’s affidavit addresses the March 15, 2005 offer as follows:
Mr. McDowell’s [sic] bid at the time (March 15, 2005) was $25m
for approximately 615 acres of land. He was willing to deposit
$2.5m at the signing of the P&S and close within 30 days from the
signing. The land configuration was not suitable to the current
ownership and several rounds of negotiation and on-site meetings
in C&W’s office, on-site with the brothers, and at Roy’s Weston
offices took place.
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There is nothing in the affidavit which establishes that the offer was written. As of
March 15, 2005 the Debtor was not a party to any agreement with C&W. Whether its land was
even included in the offer is unknown. Although the Mezitt brothers were the principals of the
Debtor, they were parties to the February 17, 2005 letter in their own right, not in their capacity
as officers of the Debtor. Moreover C&W’s attempts to introduce a copy of the March 15, 2005
proposal at this stage in the proceedings is too late. It is not newly discovered evidence under
either Rule 59 or 60. Although C&W was aware of the existence of the March 15, 2005 letter, it
did not offer it previously. Thus based upon the evidence which the Court may consider, the
March 15, 2005 letter is not a written offer to the Debtor.
The same is true of the September 14, 2005 Memorandum. The Debtor was not a party
to the February 17, 2005 letter agreement and this document was not previously provided
consistent with Fed. R. Bankr. P. 56(c). Moreover the September 14, 2005 Memorandum is not
a written offer to C&W; rather it is C&W’s memorialization of the buyer’s and seller’s areas of
agreements and disagreements. In addition Ms. Loeber’s affidavit expressly attests that the
parties’s attempts to strike a deal were unsuccessful.
Between April and July of 2005, C&W held varied and numerous
discussions with The Boulder Company as it related to a successful
purchase and sale of the property. In its conception, the offer was
for the site at large on an “As Is” basis....
C&W has memorialized [presumably in the September 14, 2005
Memorandum] the deal points that the Owner and The Boulder
Company had agreed upon and those that were still open....
Ultimately, talks broke down between the two parties with regard
to the parcel reconfiguration. Soon thereafter Weston Nurseries
(the business) filed for bankruptcy protection. C&W was later
appointed by the United States Bankruptcy Court to facilitate the
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auction process, manage the negotiations and supply the necessary
due diligence materials.
Therefore C&W did not establish that it provided the Debtor with a written offer as
required under Paragraph 7(ii).
The second requirement, that Boulder visited the Property prior to the expiration of the
Brokerage Agreement is undisputed. C&W glosses over the third requirement, that C&W
identify the Boulder Company in a written list provided to the Debtor and its co-sellers within
ten (10) days after the expiration of the Brokerage Agreement. C&W argues that it identified the
Boulder Company, by referring to it as the MacDowell Company in an apparent reference to all
of Mr. MacDowell’s entities, ten days before the expiration of the Brokerage Agreement and
cites to the June 20, 2006 Marketing Report attached to it Supplemental Statement Relative to its
Fee Application. Lists provided before the expiration of the Brokerage Agreement do not
comport with the language of the contract. The Brokerage Agreement language is very clear: the
list of “prospects” must be provided within ten days after the expiration of the Agreement.
Nevertheless assuming that the Marketing Reports which C&W generated on at least 4
occasions, namely February 15, 2005; March 4, 2005; June 20, 2006; and July 11, 2006, can be
considered a list of “Prospects,” and assuming that lists delivered before rather than after the
expiration of the Brokerage Agreement are acceptable, those very Marketing Reports undercut
C&W’s argument. The June 20, 2008 Marketing Report, the first one given in any way to the
Court that even mentions an entity that arguably might be understood to be the Boulder
Company, states that “The MacDowell Company” is “passing” on the Property and has “no
interest” in it. There was no mention of the Boulder Company, Mr. MacDowell or the
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MacDowell Company on the July 11, 2006 Marketing Report, the operative list for determining
the existence of a Prospect.
The Court is aware that C&W spent time, energy, and funds in an effort to market and
sell the Property. C&W negotiated the terms under which its entitlement to a broker’s
commission was to be determined, however, and it has not satisfied those conditions.
For the forgoing reasons, the Motion to Alter or Amend the April 14, 2008 Order
is DENIED.
Dated: May 7, 2008
Joel B. Rosenthal
United States Bankruptcy Judge
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