In a long and protracted battle that has wound its way through the state court system, the graffiti clad Asian supermarket Ming’s in the South End has won a verdict that carries a $1.5 million price tag at the expense of longtime Southender Leo Motsis.
Ming’s Market on the corner of Washington and East Berkeley streets has long been a thorn in the side of the community, with neighbors often registering complaints about the graffiti, trash and general unsanitary conditions in the market, but now the market will be a major thorn for Motsis (owner of the famous Boston Eagle on Tremont Street) – who leased the market warehouse space in a building he owns on East Berkeley.
That lease, and the complications with it, resulted in a nearly five-year battle in court that ended this month with the written decision by Appeals Court Judge Peter Sacks.
“This case presents the question whether a lessor’s material breach of a commercial lease permits the lessee both to recover lost profits due to lost use of the premises and to obtain an order for specific performance of the lease provision requiring the lessor to make structural repairs,” read the decision. “After a Superior Court jury trial and the judge’s resolution of the parties’ … claims, a judgment awarding both forms of relief entered for the lessee, the defendant and plaintiff in counterclaim, Ming’s Supermarket, Inc. (Ming’s), against the lessor, the plaintiff and defendant in counterclaim, Leo J. Motsis… We conclude that, in the circumstances of this case, such relief was proper. We also reject Motsis’s challenge to the judge’s findings in favor of Ming’s…and we see no merit in Motsis’s various claims of trial error. We thus affirm the judgment.”
That led to a doubling of the original jury verdict of $795,000 in damages, bringing the final verdict just north of $1.5 million – and that doesn’t count the attorney’s fees for Ming’s, which the judge also found that Motsis should have to pay.
The background on the case was that the troubled supermarket was located adjacent to Motsis’s vacant building – which years ago was a parking garage. The supermarket needed warehouse space, and there was a common wall that allowed them access to Motsis’s building. In 1999, they entered into a 10-year and five month lease starting on Jan. 1, 2000. The lease contained two, 10-year extension options, giving Ming’s the space until 2030 potentially.
The trouble was that the lease called for Motsis to make all structural repairs, and it also gave them the right of first refusal if there was an offer to buy the building from Motsis. A final difficulty was that the use of a warehouse was not permitted in the zoning for the area – making it an illegal use. Even without the zoning permission, Ming’s used the space as an illegal use through 2015.
That’s when all went wrong.
During a freezing cold day in one of the worst winters on record, a sprinkler pipe burst in the building. That brought the City’s Inspectional Services Department (ISD) out to the building, where they found numerous structural damages, code violations and the zoning problem. That led Ming’s to have to move out of the warehouse, and while they made some repairs, they contended that the majority should be made by Motsis.
He disagreed, saying they caused the damages.
Ming’s stopped paying rent (which was around $20,000 per month) in May 2015, and that’s where the lease issues started.
A jury in Suffolk Superior Court sided with Ming’s in August 2017, and awarded the damages to Ming’s. Motsis appealed, and now has lost that battle despite numerous claims to have a new trial, including a contesting of the verdict slip in the 2017 trial.
In one telling statement within Judge Sacks’s decision, the court felt that Motsis was simply trying to apply pressure so that Ming’s would walk away from the deal and he could sell the building free and clear.
“Specifically, Motsis acknowledged that it would have taken him two years to recoup, via rental payments, the approximately $500,000 cost of the repairs, and although Motsis denied that this was any part of his motive for not wanting to perform them, the judge could have disbelieved that testimony,” read the decision. “There was evidence that the lease rent was considerably below market value, that the lease was in effect until 2020 at which time Ming’s had an option to renew it for another 10 years, that
Motsis wished to sell the premises, and that he ‘wanted both parties to just walk away from the lease,’ which would allow the premises to be sold unencumbered.
The judge further stated that it could have reasonably been found that Motsis hoped to attempt to induce Ming’s to breach the contract, which would give him a good reason to terminate it. That would give him the ability to get out of a very low-rent lease that was in effect for many years, the judge wrote.
Meanwhile, with the case decided and moving to the background, Ming’s has filed with the Zoning Board to certify the zoning as a warehouse, a move that has garnered significant community opposition in the East Berkeley Neighborhood Association (EBNA). That hearing date is scheduled for Tuesday, Dec. 17, at City Hall.