41 Mass. App. Ct. 451 | Mass. App. Ct. | 1996
The relevant facts, drawn from the judge’s findings and the uncontroverted evidence in the record, are as follows. The plaintiff, Richard L. Lundgren, was married to the defendant, Beryl Gray, on April 7, 1956. On June 12, 1981, the parties established the Lundgren Family Trust (trust), conveying by deed to the trustees their interest in
On April 20, 1988, the parties were divorced by a judgment nisi; the trust property was not a subject of the judgment. However, on June 19, 1990, a modification judgment (modification) was entered into; it incorporated an agreement executed by the parties regarding the property. This agreement included the following provisions: (1) that the property would be placed for sale if Lundgren’s business, Lundgren Honda, either moved or was sold; (2) that Lundgren and Gray were to share equally in any annual income from the property, with Gray to receive a minimum of $30,000 annually; (3) that if the normal income from the property did not provide Gray with $30,000, the parties would renegotiate the terms of a lease on the property so that the $30,000 was realized; and (4) that the parties were promptly to renegotiate a five-year lease on the property, with an option allowing the lease to terminate upon the sale or relocation of Lundgren Honda.
The tmst expired on July 12, 1991, at which time the property was conveyed back to Lundgren and Gray by deed dated August 5, 1991. On January 6, 1992, Gray filed a complaint for contempt
More particularly, the lease detailed the different options available to the parties in disposing of the property should
Paragraph 8.1.3 of the lease provided that: “From the time this Lease terminates to the time title to the Premises vests fully in [Lundgren, Gray] or some third party, all costs associated with maintaining the Premises including, but not limited to, mortgages, insurance, real estate taxes, utilities and general maintenance, shall be equally divided and one-half of the expenses shall be paid for by each of the Landlords” (emphasis added). The paragraph also outlined the protocol when one landlord pays for the noncontributing landlord’s share in relevant expenses, allowing the paying landlord to be reimbursed at the time of sale or the lease of the property.
Finally, paragraph 8.2.2 provided an additional option available to the parties if the tenant should vacate the property; “notwithstanding any of the foregoing” (emphasis added), the property would be sold at a public auction within 120 days of the tenant’s departure, or at a later time by agreement of the parties.
The tenant terminated the lease on March 22, 1992. Neither Lundgren nor Gray exercised the option to purchase, and a broker was unable to sell the property. In a final effort to dispose of the property, both parties agreed to sell it at a public auction.
On the day of the auction, October 16, 1992, there were no third-party buyers present. Lundgren, on behalf of another corporation of which he was principal, Lundgren Auto Group, Inc.,
“The premises are to be conveyed to the Purchaser not more than Thirty (30) days after approval of the sale, by a good and sufficient Deed, subject to all outstanding tax title municipal taxes, charges, assessments and liens . . . and subject to existing tenancies, if any, and encumbrances of record. . . .
“[TJhe successful bidder shall take the property subject to all taxes, charges, assessments and liens now existing or hereafter arising and those having priority over the mortgage, excluding charges from New England Telephone . . . Commonwealth Gas and Massachusetts Electric” (emphasis added).
The auction documents further provided that “[n]othing contained in th[e] agreement shall be construed as a waiver by Richard Lundgren to seek recovery against Beryl Gray for such payments [i.e. notes, mortgages and utilities] as may be established.” In addition, the auction documents allowed the buyer to rescind his offer and collect his deposit if the premises could not be delivered in accordance with the lease language.
Contrary to the auction documents, title to the property was not conveyed by good and sufficient deed within thirty days. Still, Lundgren did not rescind the sale as was his right under the auction documents. Instead, he assumed the mortgages and expenses and began contending with the numerous title problems, with which he was well acquainted prior to purchasing the property at the auction.
After the auction, the Worcester County Abstract Company examined the title to the property and issued a nine-page title report (report) which was delivered to Lundgren’s attorney on January 7, 1993. The report listed numerous problems with the title that needed to be rectified in order to convey the “good and sufficient deed” required under the auction documents.
Lundgren directed the necessary title work from the auction date to the time of its completion, while Gray cooperated with him with respect to the title work from her new residence in Georgia.
The property was ultimately transferred to AP Properties, Inc., another corporation of which Lundgren was principal,
Lundgren claims he is entitled to $65,646.43 from Gray, her share of the expenses from March 22, 1992, the lease termination date, to June 21, 1993, the final deed conveyance date. Gray concedes some nonpayment, but argues that she is only responsible for monies spent on maintenance between March 22, 1992, and October 16, 1992, the auction date. Both parties agree that seventeen percent is the appropriate amount of interest to apply to whatever Gray owes Lund-gren.
After the presentation of evidence, the judge found that equitable principles dictated that Gray’s responsibility ended on October 16, 1992, the date of the auction. The judge relied on the following compelling factors: (1) when both parties entered into the stipulation and the lease, with its paragraph 8.1.3 “fully vests” language, they anticipated a third party arm’s length transaction for full and adequate consideration; (2) Lundgren did not intend to buy the property at the auction, but did so after no third party bid on the property; (3)
The judge also found inequity because any expenditures accrued between the auction date and the deed recording date for mortgage payments, utilities, title work, or anything else in connection with the property, inured entirely to Lundgren’s benefit. Thus, requiring Gray to reimburse Lundgren would unjustly enrich him. Moreover, the judge thought it unfair to permit personal reimbursement where it was unclear from the evidence whether any of Lundgren’s corporations made the payments for which Lundgren seeks contribution; indeed, if made by a corporation, it would be inappropriate to permit such reimbursement for Lundgren individually.
Lundgren now appeals from the Probate Court judgment that found Gray in contempt for wilfully failing to obey court orders
Findings of fact. On appeal, Lundgren claims to challenge the probate judge’s findings of fact. We do not set aside a
Here, where Lundgren simply brings to our attention conflicting facts, he is essentially asking us to weigh anew the evidence supporting his position.
Conclusions of law. Lundgren also argues that the judge erred in his conclusions of law. He contends that the plain language of paragraph 8.1.3 of the lease requires Gray to share in expenses for the period between March 22, 1993, when the tenant vacated the property, to June 21, 1993, when the final deed was recorded and the property “vestjed] fully” with AP Properties, Inc. Lundgren, in short, argues that the probate judge should have granted specific performance on Lundgren’s interpretation of the lease. The probate judge,
It is well established that the Probate Court has plenary equity jurisdiction in controversies over property between divorced persons. G. L. c. 215, § 6. Wood v. Wood, 369 Mass. 665, 668-671 (1976). As such, we conclude that the probate judge acted properly in denying Lundgren’s request for specific performance. After hearing ample evidence that Lund-gren had taken advantage of Gray through his knack for controlling events, and his inaction and delay regarding the title problems, the judge correctly reasoned that specific performance may be refused to one, like Lundgren, who himself has been guilty of unfair conduct or has taken inequitable advantage of another. Indeed, a plaintiff seeking specific performance must himself be free from blame. See Shikes v. Ga-belnick, 273 Mass. 201, 206 (1930).
Conclusion. We hold that the evidence amply supported the findings of fact of the probate judge and provided a rational basis for his application of equitable principles.
The judgment is affirmed, and the case is remanded to the Probate Court for further findings as to the specific bills and amounts paid.
So ordered.
In Lundgren’s complaint for contempt, which is the subject of this action, he sought specific enforcement of the lease which was incorporated into and made a part of the 1992 judgment of contempt.
Under paragraph 8.2, the tenant had the right to terminate the lease at any time, provided that it vacate the property upon its exercise of the right.
The typed lease states the public sale was to take place 120 days after the tenant vacated the premises; however, the judge found that the parties intended the number to be 150 days. In any event, the auction took place on a mutually agreed upon date, October 16, 1992.
Lundgren Auto Group, Inc., subsequently changed its name to AP Properties, Inc.
AP Properties, Inc., was the successor of Lundgren Auto Group, Inc. See note 4, supra.
The property was originally in the trust. Located on the property was an automobile dealership, Lundgren Honda, of which Lundgren was a principal. The lease executed in February, 1992, was entered into by Lundgren Honda but named Richard A. Lungren, Inc., as the tenant, with Lundgren and Gray as the landlords. Still later, after Lundgren Honda vacated the premises, the auction sale documents were executed by Lundgren, individually, and for the Lundgren Auto Group, Inc., as the buyer. The conveyance was ultimately made to a fourth Lundgren corporation, AP Properties, Inc.
“Orders” refers to the modification judgment entered on June 19, 1990, incorporating the modification agreement of the same date, and the judgment of February 10, 1992, incorporating the written stipulation.
For instance, Lundgren argues with the probate judge’s finding that Lundgren was in “total” control of the title work: the Worcester County Abstract Company did not release its report until January 7, 1993, causing Lundgren some delay in beginning to contend with the problems. However, this information was before the probate judge when he made his final determination, and clearly did not carry much weight against the other evidence showing that: (1) Lundgren still took six months after the report was issued to complete the title work; (2) many of the problems were known to Lundgren before his corporation bought the property and could have been rectified years before the purchase; and (3) Lundgren could have rescinded his offer under the auction documents, and avoided the title work altogether.