Opinion
11-P-1758
12-07-2012
JOHN A. GIFFORD & another v. ANDREW J. BURKE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This consolidated appeal concerns a disagreement between Debra F. and John A. Gifford (the Giffords) and Andrew J. Burke (Burke) over the court-ordered sale of a waterfront home. Because we discern no error in the judge's decisions, we affirm.
Discussion. We discuss the facts as necessary for our legal analysis. In our de novo review of the allowance of a motion to dismiss, '[w]e accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff.' Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). 'Factual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true . . . .' Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Despite the Giffords' conclusory assertions, the allegations in the complaint were not sufficient to maintain any cause of action based in contract. 'It is axiomatic that to create an enforceable contract, there must be agreement between the parties on the material terms of that contract, and the parties must have a present intention to be bound by that agreement.' Situation Mgmt. Sys. Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000).
On the claims related to the alleged agreement to convert the locus into a condominium, the record plainly reveals that the parties did not progress past the negotiation stage. Also, as the Giffords state in their brief, the common area dimensions of a future condominium had not yet been agreed upon. The areas of property to be shared by the residents is clearly a term material to any proposed agreement to convert a property into a condominium.
Turning to the claimed contract to convey Burke's property interest to the Giffords, we see no error in the judge's conclusion that 'the record contains no evidence of an offer or acceptance'. Because the facts as pleaded are insufficient to support the formation of a contract, there was no error in the judge's allowance of Burke's motion to dismiss.
Because there was no contract, the related claims for a breach of the implied covenant of good faith and fair dealing were also insufficient. See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 385 (2005), quoting from Uno Restaurants Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004) ('This implied covenant may not be 'invoked to create rights and duties not otherwise provided for in the existing contractual relationship'').
The Giffords' final argument is that the judge erred in ruling that they did not meet the court-ordered requirements of the bidding process in the partition action. This argument is without merit as the record reveals that the Giffords' bid patently violated paragraph three of the judge's order, which required the Giffords to submit proof of their ability to retire the mortgage with their initial bid. The 'proof' that the Giffords submitted consisted of conditional statements and mere speculation about Burke's previous and future offers to buy their interest. The judge was entirely correct in ruling that the Giffords' bid was defective, and he acted within his discretion in accepting Burke's bid. Burke's request for double costs and attorney's fees is denied.
Judgment dated February 18, 2011, affirmed.
Order dated September 14, 2011, affirmed.
By the Court (Grainger, Brown & Sullivan, JJ.),