In 1999, plaintiff Betty Acquaviva worked part-time as a real estate saleswoman for plaintiff Seranne Hawes of Hawes Real Estate. Early that year, real estate broker Sharon Costa mentioned that she had “a nice big piece of land in Dighton” and asked if she knew anyone interested in land. Acquaviva said she might be interested in looking at the land for herself. She wanted to build a house that was better suited than her present house for her husband's chronic asthma, and the land was “listed at a very low price.” Costa explained “that the owner of the land was selling the property at such a low price because he did not have the time, and did not want to go through all the aggravation of getting the land 'perked' and approved for a buildable lot.” Acquaviva looked at the land. She noted that it had sufficient frontage for three buildable lots but that there were wetlands and a waterway in the back. [R. App. 88].
On May 3, 1999, Acquaviva and Hawes as buyers entered into a purchase and sale agreement with the owner of the property, Dr. Wallace Gonsalves, Jr. [R. App. 11-13]. The purchase price was to be $49,000, and the plaintiffs provided a deposit of $2,450. [R. App. 11]. Paragraph 8 of that agreement provided for delivery of the deed on or before July 30, 1999 and contained a “time is of the essence” provision. [R. App. 12]. Paragraph 14 stated as follows:
“Percolation and water table: Subject to the buyers providing the percolation, water table and soil test results satisfactory to buyer(s)['] engineer and sufficient to have septic system designed to meet approval of the board of health[.] Also, the land described in the agreement may contain wetlands and/or vegetation that could put limitations on the use of this land. Please consult with a civil engineer, botanist and conservation commission of the town to determine whether this lot is suitable for your building plans before purchasing. Buyer(s) has 75 days from the signing of this agreement for such consultations and if not satisfied with the results may terminate this agreement without legal or equitable recourse of either party, the parties thereby releasing one another from all liability under this agreement and the deposit shall be returned to the buyer(s) provided that the buyer(s) shall have notified the seller(s) and the broker(s) in writing by July 15, 1999. Subject to the buyers getting approval for one buildable lot.”
[R. App. 12-13]. Paragraph 15 provided that “If buyers need additional time to complete above mentioned test and approvals, the seller will agree to extend this agreement to a mutual (sic) agreed time and date.” [R. App. 13].
Thereafter, the plaintiffs hired an engineer to “perk” the three separate lots. Two of those tests were successful. [R. App. 88-89].
On July 14, 1999, the parties signed an extension until August 16, 1999 to permit the plaintiffs to obtain the results of the percolation tests and to seek approval from the Town of Dighton Conservation Commission. [R. App. 101]. On August 16, 1999, the plaintiffs sought a second extension, this one for three months, to permit them to go through the approval process. The parties subsequently signed an extension until November 16, 1999. [R. App. 102-103].
The plaintiffs ultimately “sought approval to develop the land into three (3) lots from the Town of Dighton Conservation Commission.” The Town of Dighton denied permission to build on any of the three lots. [R. App. 82, 104].
The plaintiffs applied to the Massachusetts Department of Environmental Protection (D.E.P.) seeking a Superceding Order of Conditions, which would allow them to build, notwithstanding the adverse decision of the Dighton Conservation Commission. They again requested approval for three buildable lots. In early November, they sought a third extension, this time to February 29, 2000, to close. [R. App. 92-93, 104, 108-109]. The defendant responded that he wished to close on the property by the end of the year. He proposed reducing the price by $10,000, if the plaintiffs consummated the transaction prior to the end of December 1999. Half of the money was to be paid by December 15, 1999, with the balance due by December 27. He indicated that if the plaintiffs declined this proposal, he would donate the land to the Town of Dighton and use the donation as a tax write-off. He granted one final extension to the dates indicated to permit the plaintiffs to consider this proposal. [R. App. 89, 105]. On November 8, 1999, the plaintiffs responded that they would not buy the land “at the lower price before they heard back from the D.E.P.” [R. App. 92].
On November 30, 1999, the plaintiffs initiated suit and placed a lis pendens on the land. [R. App. 8-17, 89].
On March 30, 2001, almost two years after the parties signed the purchase and sale agreement, the Massachusetts Department of Environmental Protection gave the plaintiffs permission to build on two of the three subdivided lots. [R. App. 50-58]. Thereafter, the plaintiffs sought to schedule a closing. [R. App. 60]. The defendant responded that the purchase and sale agreement had long since expired and declined to close. [R. App. 62].
I. The Trial Court Properly Entered Summary Judgment For The Defendant Where The Grounds Articulated By The Trial Judge Establish That The Defendant Was Entitled To Judgment As A Matter Of Law, Where The Record Discloses Other Grounds That Would Have Required Entry Of Summary Judgment, And Where Nothing In The Record Supports The Plaintiffs' Claim That Entry Of Judgment In The Defendant's Favor Improperly Gave Him A Windfall
As noted above, the judge denied the plaintiffs' motion for partial summary judgment and allowed summary judgment in the defendant's favor. She did not issue a memorandum of decision, but stated the grounds for her ruling in a couple of brief sentences:
I do not see how plaintiffs can succeed on their only claim when plaintiffs never sought approval for only one buildable lot. Plaintiffs' actions in so requesting approval for 3 lots, when the agreement only references 1 lot, cannot be construed as reasonable.
[R. App. 94]. The plaintiffs claim that the judge abused her discretion by entering summary judgment for the defendant in the absence of a motion by the defendant. They further contend that the judge erred as a matter of law in doing so, claiming that the record establishes that they acted reasonably under the circumstances and that the defendant breached the contract. Finally, they claim that allowing the judgment to stand would give the defendant a windfall where the plaintiffs expended substantial time and effort in obtaining approval for two buildable lots. The defendant contends that the judge properly granted summary judgment even in the absence of a motion and that the grounds stated by the judge in granting summary judgment amply supported her ultimate conclusion. Additionally, the record discloses other grounds that not only supported but required the entry of summary judgment in the defendant's favor. Finally, nothing in the record establishes that the judgment provides the defendant with a windfall. The judgment should be affirmed.
A. Summary Judgment Standards
“Summary judgment is granted where there are no issues of genuine material fact” and where one of the parties “is entitled to judgment as a matter of law.” Ng Brothers Const., Inc. v. Cranney, 436 Mass. 638, 633-634 (2002). See Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 283 (1997); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56(c). Once a showing has been made that the evidence fails to support a party's legal theory, that party must come forward with facts that show a genuine issue for trial. See Id. at 634; Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir. 1997). “[N]either conclusory allegations [nor] improbable inferences” are sufficient to defeat summary judgment. J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996) (internal quotation marks omitted). See Madsen v. Erwin, 395 Mass. 715, 721 (1985); Davidson v. General Motors Corp., 57 Mass. App. Ct. 637, 638 (2003). Rather, a party facing summary judgment must present enough competent evidence to enable a fact finder to decide in its favor on the disputed claims. Haverty v. Commissioner of Correction, 437 Mass. 737, 754 (2002); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. at 648 (“An adverse party may not manufacture disputes by conclusory factual assertions; such attempts to establish issues of fact are not sufficient to defeat summary judgment”); Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 696 (1993) (affidavit must set forth specific facts showing genuine issue for trial; bare assertions and conclusions not enough to survive summary judgment). See Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Although summary judgment is ordinarily entered upon motion by the opposing party, a judge is entitled to enter summary judgment even in the absence of a motion. See Mass. R. Civ. P. 56(c) (“Summary judgment, when appropriate, may be rendered against the moving party”). See also Good v. Commissioner of Correction, 417 Mass. 329, 337, n.7 (1994) (same); Charlesbank Apartments, Inc. v. Boston Rent Control Administration, 379 Mass. 635, 636, n.2 (1980) (judgment may enter for opponent to summary judgment motion, even in absence of cross motion for such relief). Of course, before summary judgment can enter in the absence of a motion, the court must provide the party against whom summary judgment is contemplated with notice and an opportunity to respond. See Gamache v. Mayor of North Adams, 17 Mass. App. Ct. 291, 295-296 (1983) (judge has full summary judgment against the moving party, provided that the parties had sufficient notice of his intention to do so, opportunity to submit affidavits, and a right to be heard on the matter); Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949, 950 (1983), review den. 391 Mass. 1104 (judge acted within his discretion in refusing to vacate summary judgment, where party against whom it was entered had opportunity to file deposition to show conflicting material facts, but did not).
Finally, summary judgment is particularly appropriate where a case involves a dispositive issue of law involving the interpretation of a contract. See Hubert v Melrose-Wakefield Hosp. Ass'n., 40 Mass. App. Ct. 172, 173, n.4 (1996). See also Fishman v. LaSalle Nat'l Bank, 247 F.3d 300 (1st Cir. 2001) (the judge, not a jury, should construe contracts where extrinsic facts are not in dispute, even if outcome is reasonably debatable).
B. The Judge Was Entitled To Enter Summary Judgment Even In The Absence Of A Motion
Nothing in the record establishes that the judge erred as a matter of law or abused her discretion in entering summary judgment on her own motion. She gave the plaintiffs ample opportunity to address whether summary judgment should enter against them. [R. App. 5, 94]. The plaintiffs did in fact file a written opposition to the entry of summary judgment. [R. App. 82-93]. See Gamache v. Mayor of North Adams, 17 Mass. App. Ct. at 295-296; Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. at 950. Where the judge followed the necessary procedural steps, the way in which summary judgment entered was entirely proper.
C. The Grounds Articulated By The Judge Amply Support Her Decision
The plaintiffs complain that without a transcript of the suppression hearing, this court lacks the ability to discern the reasoning for the judge's decision. However, as noted above, the judge articulated her reasons for the decision-that the plaintiffs acted unreasonably by seeking approval for three buildable lots where the contract contemplated approval for only one such lot.
As will be discussed more fully below, the purchase and sale agreement was poorly drafted and portions of it were ambiguous at best. However, the provision addressing the number of buildable lots was clear and unambiguous. Contrary to the plaintiffs' suggestion, it authorized them to seek approval for only one buildable lot. The plaintiffs admitted that they sought approval for three buildable lots. [R. App. 82, 108-109]. Where the key facts are undisputed and where the key provision in the contract “is unambiguous, its interpretation is a question of law that is appropriate for a judge to decide on summary judgment.” Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002). The judge committed no error in considering the matter on summary judgment.
Further, the record supported the judge's finding that the plaintiffs acted unreasonably in the circumstances. See Pappas Indus. Parks, Inc. v. Psarros, 24 Mass. App. Ct. 596, 599 (1987) (judge properly considered on summary judgment whether plaintiff's conduct was reasonable in light of the language of the contract). Applying and receiving approval multiple lots instead of one would certainly have prolonged the process and may very well have affected whether the local or state authorities granted their approval. If the plaintiffs had sought approval for only one lot, the Conservation Commission may very well have been more inclined to approve their request. Perhaps also it would not have taken four separate attempts to have the plans approved by the D.E.P.
Where the plaintiffs attempted to do more than the contract authorized, contrast Radley v. Johnson, 25 Mass. App. Ct. 969, 970-971 (1988), and where such conduct likely prolonged the approval process, the judge properly found that they acted unreasonably and outside the terms of the contract.
D. Other Grounds Evident In The Record Support The Entry Of Summary Judgment
Assuming the reasons articulated by the judge had been insufficient to justify the entry of summary judgment, other grounds evident in the record amply support the judge's decision. See Aetna Cas. & Sur. Co. v. Continental Cas. Co., 413 Mass. 730, 734-735 (1992) (“A prevailing party is . . . entitled to argue on appeal that the judge was right for the wrong reason, even relying on a principle of law not argued below.”); Richards v. Mason, 54 Mass. App. Ct. 568, 573 n.9 (2002) (“We may. . . affirm a correct decision on any sound basis.”); Doeblin v. Tinkham Dev. Corp., 7 Mass. App. Ct. 720, 722 (1979) (a correct decision may be sustained on appeal on any valid ground, even if not fully raised below or articulated by the trial judge).
The plaintiffs contend that the purchase and sale agreement contained clear and unambiguous language giving them the right to unlimited extensions and restricting the defendant's right to sell the property as long as they were actively seeking approval in some forum. However, the agreement as a whole was poorly drafted, and the language upon which the plaintiffs rely in support of this particular argument is neither clear nor unambiguous. Paragraph 15 provides that “[i]f buyers need additional time to complete above mentioned test and approvals, the seller will agree to extend this agreement to a mutual (sic) agreed time and date.” [R. App. 13]. That paragraph fails to define the term “approvals.” Paragraph 14 is of little help to the plaintiffs. It discusses approval by the local Board of Health and Conservation Commission. [R. App. 12]. It does not mention seeking approval in other forums, appealing from an adverse decision from the Board or Commission, or litigating the matter in the courts. More specifically, it does not reference the extraordinary steps that the plaintiffs ultimately took in the two years following the execution of the purchase and sale agreement-i.e., appearing before the D.E.P. “with engineering plans, and septic designs . . . four different times.” [R. App. 89].
Where the plaintiffs drafted the language of Paragraphs 14 and 15 [R. App. 83], any ambiguity in that language must be resolved in the defendant's favor. Seaco Ins. Co. v. Barbosa, 435 Mass. at 779 (ambiguity should be construed against the party who drafted language). This rule of construction is particularly appropriate where, as here, both of the plaintiffs are real estate professionals who would have been fully aware of the process for seeking approval to build on the property and of the need for clarity in drafting a purchase and sale agreement. See Pappas Indus. Parks, Inc. v. Psarros, 24 Mass. App. Ct. at 599. In the absence of more precise language, the ruling by the Conservation Commission was the definitive event. Once the Commission denied the plaintiff's application, they could have closed on the property without the desired approval and pursued any further remedies at their own risk, or they could have walked away from the deal. Contrary to their claims, they had no right to insist on any further extensions beyond the three that the defendant granted them.
Other parts of the agreement strongly suggest that the parties did not contemplate a lengthy approval process at the time they signed the document. The agreement set forth a specific date by which the closing was to take place. It also included a “time is of the essence” provision. See Owen v. Kessler, 56 Mass. App. Ct. 466, 469-470 (2002). Contracts must “be construed in such a way that no word or phrase is made meaningless by interpreting another word or phrase[.]” Lexington Ins. Co. v. All Regions Chem. Labs, Inc., 419 Mass. 712, 713 (1995). See J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986) (“contract is to be construed to give reasonable effect to each of its provisions”); G.M. Abodeely Ins. Agency, Inc. v. Commerce Ins. Co., 41 Mass. App. Ct. 274, 277 (1996) (same). In this case, the contention that Paragraphs 14 and 15 created an open-ended contract with no time limits would have rendered the “time is of the essence” provision and time limits meaningless and could not have been intended by the parties. See Owen v. Kessler, 56 Mass. App. Ct. at 469-470.
Finally, in determining whether the parties contracted for an open-ended approval process, it is important to note that the parties made no provision for the payment of property taxes or other expenses that might be incurred during a lengthy approval process. Contrast Radley v. Johnson, 25 Mass. App. Ct. at 969 and 971 (parties signed addendum providing for reimbursement of property taxes during lengthy zoning process; deposit was sufficient to cover such costs for two years).
In her affidavit filed in opposition to summary judgment, Plaintiff Acquaviva acknowledges that she “really believed that the property would only cost [her] a little money and time to get this land 'perked' and approved for at least one buildable lot.” [R. App. 88]. As a matter of law, it is not reasonable in the circumstances to suggest that the defendant should have anticipated tying up a $49,000 piece of property for two or more years based on a refundable deposit of $2,450, especially in view of his expressed desire for a quick sale. Again, once the Commission made its initial decision, the defendant had no further obligation to extend the time for closing.
E. The Record Fails To Establish That The Judgment Gives The Defendant A Windfall
The plaintiffs claim that because of their efforts, the defendant is left with a parcel of land that now contains two buildable lots and is therefore more far more valuable than before he signed the contract. Citing Ficara v. Belleau, 331 Mass. 80, 82 (1954), they claim that the trial court thus provided him with an improper windfall that can only be remedied by setting aside the judgment.
The plaintiff failed to raise this argument in opposing the entry of summary judgment. [R. App. 82-85]. An issue raised for the first time on appeal is deemed waived and is not properly before the court. See Shafir v. Steele, 431 Mass. 365, 371 (2000); Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 16 n.7 (1997).
Further, while courts have indeed disapproved of windfalls in breach of contract cases, the record fails to establish that the defendant received one in this case. The plaintiffs concede that “there exist no facts in the record establishing the value of the subject land with two buildable lots[.]” [Plaintiffs' Brief at 19-20]. Also missing is evidence of the costs incurred and time spent by the defendant in having to litigate the plaintiffs' claims, as well as the costs of having to carry the property (i.e., property taxes and other expenses) during the years of litigation. The plaintiffs fail to address the fact that their lis pendens essentially kept the property off the market during a booming real estate market. The suggestion that the defendant received a windfall is speculative at best, and the plaintiffs certainly have not presented a sufficient record to prevail on appeal. See Greenslade v. Mohawk Park, Inc., 59 Mass. App. Ct. 850, 854-855 (2003).
Additionally, under the terms of the contract, plaintiffs agreed to shoulder the costs and assume the risks of seeking the required approvals. See Pappas Indus. Parks, Inc. v. Psarros, 24 Mass. App. Ct. at 600. Especially where the trial court found that the plaintiffs failed to follow the terms of the contract, the plaintiffs have failed to show that the risks and costs that they agreed to assume under the contract should be reallocated. See Id.
Finally, by offering to reduce the price of the land by the $10,000 that the plaintiffs had incurred if they closed by December of 1999, the defendant effectively agreed to assume all of these costs. Having turned down that offer, the plaintiffs cannot complain that the defendant somehow forced them to bear those costs.
F. Summary
While the contract contemplated extensions to permit the plaintiffs to seek approval of one buildable lot, the plaintiffs sought approval of three lots. Not only did they materially breach the terms of the contract, but their conduct bespeaks bad faith. The defendant extended the time to perform three times, giving the plaintiffs more than six months to fulfill their obligations. Once the Conservation Commission ruled, he had no obligation to extend the time for performance any further. The plaintiffs' right to purchase the property expired when they failed to close by December of 1999. Judge Fahey properly granted summary judgment in the defendant's favor, and even if this court finds her reasoning to be flawed, other grounds in the record support her decision.
II. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that this court affirm the judgment of the trial court granting summary judgment for the defendant and dismissing the plaintiffs' complaint.
Respectfully submitted,
Wallace E. Gonsalves, Jr.,
By his attorneys,
David A. Sullivan
B.B.O. # 555566
Torphy and Sullivan, LLP
10 North Main Street
P.O. Box 608
Fall River, MA 02720
(508) 675-1576
Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800
Assisting on the brief:
Brad Bennion, Legal Intern