The COOK FAMILY CHARITABLE FUND, INC. v. FROZEN 4 LLC & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1479

THE COOK FAMILY CHARITABLE FUND, INC.

vs.

FROZEN 4 LLC & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, The Cook Family Charitable Fund, Inc.

(charity), brought this action against the defendants, Frozen 4

LLC and Frozen Four Corporation (together, Frozen 4), seeking to

enforce a charitable subscription and to recover damages for

alleged fraudulent misrepresentation, breach of contract, and

violations of G. L. c. 93A, § 11. Frozen 4 filed a motion to

dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974),

for failure to state a claim. The motion was allowed by a judge

of the Superior Court, and this appeal from the judgment ensued.

We reverse.

1 Frozen Four Corporation.
Background. We summarize the factual allegations in the

charity's complaint, supplemented by information drawn from the

exhibits attached to and referenced within the complaint. For

the purposes of reviewing a motion to dismiss, we accept all

allegations as true and draw all reasonable inferences in the

charity's favor. See Lanier v. President & Fellows of Harvard

College, 490 Mass. 37, 40 (2022).

The charity is a nonprofit organization created to improve

the lives of individuals with addiction, cancer, or intellectual

disabilities. Frozen 4 currently operates a retail marijuana

store. As part of Frozen 4's application for a retail license

to sell marijuana, it was required to submit a "Plan for

Positive Impact" (plan) to the Cannabis Control Commission

(commission), detailing how it would positively contribute to

areas that had been negatively affected by the criminalization

of marijuana. To that end, in May 2019, the president of Frozen

4, Benjamin Virga, reached out to Peter Cook, a director of the

charity, "to talk about a donation to the [charity] in exchange

for the [charity's] agreement to be listed as a community

support organization in Frozen 4's [a]pplication." In July

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2019, at Virga's request, Cook signed a letter in support of

Frozen 4's application for a retail license.2

In February 2020, Virga met with Cook and other members of

the charity. At that time, Virga told the charity that Frozen 4

had executed a host community agreement with the town of

Marshfield (town) and that the charity had been appointed as

Frozen 4's designated charity pursuant to the commission's

regulations. Virga also represented that the charity "would be

receiving between $50,000 and $100,000 at some point between

June and September 2020 to enable [the charity] to continue, and

start, programs in [disproportionately impacted] communities in

Southeastern Massachusetts."

By August 2020, however, the charity still had not received

any donations. Cook spoke with Virga, who again represented

that Frozen 4 would make a donation to the charity. Then, after

consulting with Virga in February of 2021, the charity drafted a

press release, which it posted on its website on March 18, 2021,

stating that it had received a pledge of $100,000 from Frozen 4

2 The letter stated in pertinent part: "The [charity] is
aware of the planned donations to be made by Frozen 4, LLC as
part of their Plan for Positive Impact being submitted to the
Cannabis Control Commission and we will gladly accept their
donation. The [charity] has both planned and current programs
in place already that are focused on serving the Communities of
Taunton, Abington, and Braintree in Massachusetts."

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and "will use funds for online training to businesses and

municipal departments on identifying addiction."

About nine months later, in December 2021, Frozen 4 opened

its retail cannabis store in Marshfield. Shortly thereafter,

Frozen 4 began to back away from its commitment to the charity.

In response to inquiries from the charity, Frozen 4 sent an e-

mail to Cook stating that it owed $125,000 to the town in

connection with the host community agreement, but assured Cook

that the designated donations would be made after that payment

was completed. Later, in response to further inquiries from

Cook, who informed Virga that the charity had "been counting on

[Frozen 4's] commitment for some time now" and that a "deposit

at this time is needed," Virga falsely informed the charity that

the commission had rejected Frozen 4's plan. Virga blamed the

commission for changing its guidelines and asserted that "simply

donating money was no longer sufficient" to meet the

commission's requirements. Virga also "inexplicably" stated

that the $100,000 pledge represented a total amount of donations

to various entities and not an amount promised to the charity.

After unsuccessfully attempting to resolve the matter, the

charity brought this action.

We understand the charity's complaint to allege the

following: fraudulent misrepresentation (count I); charitable

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subscription (count II); breach of contract (count III); and

violation of G. L. c. 93A (count IV). The crux of the charity's

claims is that it detrimentally relied on Frozen 4's pledge by

committing resources "to provide educational and training

programs to businesses, school systems, and fire and police

departments in several communities." At the time the lawsuit

was filed, the charity had expended approximately $48,000 to

"get the aforementioned programs up and running." The charity

also owed approximately $14,000 in unpaid invoices and had made

various commitments resulting in an additional expense of

$20,000. The charity claimed that the total sum it spent in

reliance on Frozen 4's promise was approximately $82,000.

As previously noted, Frozen 4 moved to dismiss the

complaint. Following a hearing, the judge entered a memorandum

of decision and order allowing the motion. The judge dismissed

the charity's fraudulent misrepresentation claim on the basis

that the charity failed to plead inducement or damages. Next,

the judge dismissed the charity's claim for enforcement of a

charitable subscription on the basis that the charity's

allegations "f[e]ll short on both specificity and consideration"

and did not suggest a "meeting of minds." He then determined

that the breach of contract claim failed for the same reasons as

the misrepresentation and charitable subscriptions claims. And

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lastly, regarding the charity's claim for violation of G. L.

c. 93A, the judge concluded that it too must be dismissed

because the claim is derivative of the other claims.

Discussion. "We review the grant of a motion to dismiss de

novo, accepting as true all well-pleaded facts alleged in the

complaint, drawing all reasonable inferences therefrom in the

plaintiff's favor, and determining whether the allegations

plausibly suggest that the plaintiff is entitled to relief."

Lanier, 490 Mass. at 43. The question presented is whether the

charity stated a claim against Frozen 4 for fraudulent

misrepresentation, charitable subscription, breach of contract,

and violation of G. L. c. 93A.

1. The misrepresentation claim. To recover on a claim

asserting fraudulent misrepresentation, a plaintiff must show "a

false statement of a material fact made to induce the plaintiff

to act, together with reliance on the false statement by the

plaintiff to the plaintiff's detriment." Zimmerman v. Kent, 31

Mass. App. Ct. 72, 77 (1991). We conclude that the allegations

in the complaint, if true, establish that Virga, on behalf of

Frozen 4, falsely stated that the charity would receive between

$50,000 and $100,000 in donations. Furthermore, a jury could

find that Virga effectively confirmed that Frozen 4 would make a

donation in that amount by acquiescing to the charity's request

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that it publicize a pledge of $100,000. The complaint also sets

forth facts which, if believed, establish that the charity was

induced to spend time, effort, and money to develop programs in

anticipation of the promised donations, thereby relying on the

false statement to its detriment. See generally Marram v.

Kobrick Offshore Fund, Ltd., 442 Mass. 43, 59 (2004)

("[r]eliance normally is a question for a jury"). In addition,

contrary to Frozen 4's argument, the charity did not need to

allege facts to show that Frozen 4 intended for it to develop

specific programs using the promised money to survive a motion

to dismiss for failure to state a claim.

2. The charitable subscription claim. "To enforce a

charitable subscription or a charitable pledge in Massachusetts,

a party must establish that there was a promise to give some

property to a charitable institution and that the promise was

supported by consideration or reliance." King v. Trustees of

Boston Univ., 420 Mass. 52, 56 (1995). As previously discussed,

the complaint sets forth sufficient facts to establish that

Frozen 4 made a promise to donate money in exchange for the

charity's support of Frozen 4's application to the commission.

Thus, Frozen 4's promise was supported by consideration.

Moreover, the charity's support (i.e., the legal consideration)

did not consist solely of signing a letter of support as Frozen

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4 claims. The charity did far more. It agreed to, and did,

spend its time, money, and effort to implement the programs in

support of Frozen 4's plan. Put another way, the charity's

"consideration" was not limited to sending a letter of support,

but also included fulfilling its promise to use the donations

from Frozen 4 in the manner specified. In any event, even if we

were to assume that (1) the only consideration for the donation

was to send a letter in support of Frozen 4's application, and

(2) at that time the amount of the donation was not clear, the

claim for charitable subscription should not have been dismissed

because the charity alleged sufficient facts to establish that

it relied on Frozen 4's promise. Our case law requires a

showing of "consideration or reliance." King, supra.

3. The breach of contract claim. To demonstrate a

plausible breach of contract claim, the charity was "required to

establish four elements: an agreement between the parties,

supported by valid consideration; that the [charity was] ready,

willing, and able to perform; that [Frozen 4] committed a breach

of the contract; and that the [charity] sustained damages." 477

Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 523

(2019). For the same reasons the complaint is sufficient to

state a claim for relief "above the speculative level" (citation

omitted), Iannacchino v. Ford Motor Co., 451 Mass. 623, 636

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(2008), for misrepresentation and charitable subscription, the

complaint sufficiently states a claim for breach of contract.

We do not agree with the judge's observation, adopted by Frozen

4 on appeal, that the charity's allegations "f[e]ll short on

both specificity and consideration" and did not suggest a

"meeting of minds." To the contrary, as noted, the charity's

consideration consisted of its program development, and further,

the alleged facts show a meeting of the minds whereby, Frozen

agreed to make a donation in exchange for the charity's

development of such programs. We therefore reject Frozen 4's

argument that ambiguities regarding the amount of the promised

donation rendered unreasonable any reliance the charity placed

on the promised donation.

4. The G. L. c. 93A claim. General Laws c. 93A, § 2 (a),

prohibits "[u]nfair or deceptive acts or practices." When

considering a c. 93A claim, "[a]lthough whether a particular set

of acts, in their factual setting, is unfair or deceptive is a

question of fact . . . the boundaries of what may qualify for

consideration as a c. 93A violation is a question of law"

(citation omitted). Milliken & Co. v. Duro Textiles, LLC, 451

Mass. 547, 563 (2008). To determine if a practice is unfair, we

consider "(1) whether the practice . . . is within at least the

penumbra of some common-law, statutory, or other established

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concept of unfairness; (2) whether it is immoral, unethical,

oppressive, or unscrupulous; [and] (3) whether it causes

substantial injury to consumers (or competitors or other

businessmen)" (citation omitted). PMP Assocs., Inc. v. Globe

Newspaper Co., 366 Mass. 593, 596 (1975).

Here, the motion judge concluded that because the G. L.

c. 93A claim was derivative of the other claims, it was not

viable. That conduct is not independently unlawful is not a

defense to a G. L. c. 93A claim, as the statute "created new

substantive rights by making conduct unlawful which was not

unlawful under the common law or any prior statute" (citation

omitted). Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693

(1975). Similarly, because the claim was derivative of other

claims is not a valid reason to conclude that the 93A claim was

not viable. In any event, because we have concluded that the

other claims are viable at this stage of the proceedings, we

also reverse the order allowing the motion to dismiss as to the

G. L. c. 93A claim.

For the forgoing reasons, the judgment dismissing the

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charity's complaint is reversed, and the matter is remanded to

the Superior Court for further proceedings.3

So ordered.

By the Court (Vuono,
Brennan & D'Angelo, JJ.4),

Clerk

Entered: March 28, 2025.

3 Frozen 4's request for costs is denied.

4 The panelists are listed in order of seniority.

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