64 Mass. App. Ct. 454 | Mass. App. Ct. | 2005
Lead Opinion
The question before us is whether summary judgment correctly entered for the plaintiff on both her action to recover a total deposit of $37,125, paid in connection with a purchase and sale agreement, and on the defendant’s counterclaim for damages. There was no error.
As it turned out, the seller underestimated how long it would take him to build his new house. By letter dated March 6, 2003, eight days before the scheduled closing, the seller informed the buyer that he would be “unable to deliver possession of the premises on March 14, 2003” and, relying on the so-called “escape clause” in § 10, informed her that he was unilaterally extending the closing date for thirty days. The notice did not explain why he was unable to deliver possession and made no
Nevertheless, on March 13, 2003, the seller informed the buyer by letter that he had located suitable short-term housing after all, that he intended to vacate the premises and move into such housing on April 1, 2003, and that he intended to close on that date. On March 27, 2003, the buyer told the seller that she would not reschedule the closing and that the agreement had terminated when the seller “refused to perform on the closing date of March 14, 2003, for the insufficient reason that it was not convenient for him to move.” She demanded return of her $37,125 deposit. Rather than return the deposit, the seller appeared at the Middlesex County registry of deeds on what he claimed was the new closing date; the buyer did not appear and the seller thereafter took the position that he was entitled to keep the deposit as liquidated damages pursuant to the agreement. The buyer brought suit to recover her deposit and the seller counterclaimed for damages. A Superior Court judge allowed the buyer’s motion for summary judgment.
Analysis. On appeal, the seller continues to seek refuge in the escape clause contained in § 10, claiming that he was unable to deliver possession free of tenants and occupants on March 14, 2003, and therefore was entitled unilaterally to extend the closing for thirty days. He maintains that his actions demonstrate a good faith attempt to deliver the premises as required. Along these lines, he states that, once he realized that he could not complete construction of his new home by March 14, 2003, he gave the buyer timely notice, invoked what he viewed as his right under the agreement automatically to extend the closing for thirty days, and tried to find himself other housing,
The case law, however, avails him little, and even when the facts are viewed in an indulgent light favoring the seller, they reveal a position that is quite indefensible. The seller invoked his rights under § 10 because of a claimed “inability” on March 14, 2003, to deliver possession free of tenants and occupants. To use the word “inability” as the seller does, however, is both to distort it beyond recognition and to employ it in a manner that our cases have not done. The seller was obliged by the agreement to deliver possession at closing free of tenants and occupants. That contractual provision implied that the seller must make, prior to closing, reasonable efforts, see Stabile v. McCarthy, 336 Mass. at 402-403, to empty the premises of tenants and occupants, the latter term, of course, encompassing the seller himself. The seller, however, made no showing as to reasonable efforts he undertook in the months before March 14 to render the premises free of occupants. The seller, on the facts shown, did have the ability to deliver possession conformably with the agreement; all he had to do was move himself and his guests into other quarters — a hotel, if all else failed — and the contents of the premises into storage. He apparently chose not to do so because of the inconvenience or expense.
The seller’s reliance upon Stabile v. McCarthy, supra, is presumably to rebut this suggestion by dint of the fact that he was not required to take actions or make expenditures disproportionate to the circumstances. The seller has placed nothing in the record as to the lodging and storage costs he would have incurred if he had vacated the premises in order to honor the March 14 closing date. The only expenses in the record are the buyer’s estimate of roughly $7,000 in estimated hotel and storage costs for the thirty-day delay initially imposed by the seller. In the context of a $742,500 sale, these costs border far more on the de minimis than on the disproportionate.
As in Lafond and Durkin, the undisputed facts here lead inexorably to the contrary conclusion, i.e., they show a lack of good faith and an absence of intent on the seller’s part to carry out the agreement in accordance with its terms. The seller felt free not to close as required on March 14, 2003, but on a later date more convenient to him. He relied on the escape clause in an effort to avoid liability, and then laid claim to the buyer’s deposit for damage he claims to have suffered when the buyer would not belatedly purchase the premises. Nothing in these facts or in our case law permits a seller to avail himself of the protections of § 10 and then scoop the buyer’s deposit where, as here, the seller has created his own “inability” to deliver timely possession. Entry of summary judgment for the buyer was entirely warranted.
The last point we consider is whether the seller’s conduct, particularly in retaining the deposit, thereby in effect making the buyer incur the expense of a lawsuit to recover it, and then pursuing this appeal when the buyer prevailed below, warrants any sanction. Although the buyer has not requested us to do so, we are authorized by statute to award damages of our own motion if it appears to us that an appeal is frivolous. See G. L. c. 211A, § 15; Mass.R.A.P. 25, as amended, 378 Mass. 925
While the seller characterizes this case as being one of first impression, that is so only in the sense that a situation quite like this one has not previously been the subject of published appellate decisions in this jurisdiction. That the matter is arguably one of first impression is attributable, in our view, not to any particular lack of clarity in applicable law but to the fact that no other individual who has seen fit to play hard ball in this fashion had the temerity to pursue the matter on appeal. Even if the case law construing escape clauses appeared at all unclear to the seller, the flimsy and self-created reason for not delivering timely possession of the premises, coupled with the clarity of the law concerning “time is of the essence” provisions, should at least have given the seller pause, after if not before he lost on summary judgment. The buyer was clear in insisting upon her rights under the latter clause, promptly told the seller that the deal was off, and demanded return of her deposit. See Owen v. Kessler, 56 Mass. App. Ct. 466, 466-467 (2002). The seller’s continued retention of the deposit in the circumstances was unjustified on any reasonable view of the facts and law.
Given the case law and plain common sense, we are persuaded that the seller could not have had a reasonable expectation that the summary judgment decision favoring the buyer would be reversed on appeal. We conclude that a measured rebuke is warranted. Accordingly, the buyer is to have
Judgment affirmed, with double costs of the appeal.
Pratt, the appellant, has not reproduced in his brief or the record appendix the judge’s “Memorandum of Decision and Order on the Parties’ Cross-
During contract negotiations, the seller wanted the closing date to be contingent upon his ability to obtain suitable housing. The buyer refused to agree to such a clause because she was selling her own home, which she had to vacate by March 14, 2003.
Neither the girlfriend nor the friend had a tenancy agreement or lease. Both knew of the impending March 14, 2003, closing date; in the three months between execution of the purchase and sale agreement and the scheduled closing, neither was served by the seller with a notice to quit. The record is silent as to any other efforts made by the seller to remove them from the premises prior to March 14, 2003.
The buyer may submit a petition for her appellate attorney’s fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty calendar days of the issuance of this rescript. The seller may respond within twenty calendar days from the date of said filing.
Concurrence Opinion
(concurring). I concur in the reasoning and result reached by the majority. I enthusiastically endorse the majority’s award of attorney’s fees and double costs for the reason, if no other, that this appeal was foredoomed and counsel could not reasonably have believed otherwise. See Britt v. Rosenberg, 40 Mass. App. Ct. 552, 555 (1996), and cases cited therein. See also Farm Constr. Serv., Inc. v. Robinson, 21 Mass. App. Ct. 955, 956 (1986).
Chief Justice Boudin’s words are particularly apt here: “This case is about money, but only money, and should have been settled.” Liberty Mut. Ins. Co. v. Nippon Sanso K.K., 331 F.3d 153, 163 (1st Cir. 2003). The defendant’s counsel would have been well advised to adhere to the following admonition: wise counseling should be the first option; defending hopeless litigation (especially as here) should not be an option at all. See VMS Realty Inv., Ltd. v. Keezer, 34 Mass. App. Ct. 119 (1993). See also Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392, 402 (1994) (Brown, J., concurring). I am obliged to reiterate the observation made by this court in Piccicuto v. Dwyer, 32 Mass. App. Ct. 137, 140 (1992): “courts are too frequently called upon to expend their limited resources to assist the needy by the machinations of the greedy.”