Opinion
14-P-165
05-14-2015
ALEXANDRA LAMASTER & another v. KIMBERLY C. SUTHERLAND.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant Kimberly C. Sutherland appeals from a judgment awarding the plaintiffs Alexandra Lamaster and Mark Eastley monetary damages and specific performance of a purchase and sale agreement (agreement). Sutherland challenges the denial of her special motion to dismiss and her motion to dismiss for failure to state a claim. She also claims her attorney lacked authority to sign an amendment to the agreement on her behalf, the amendment was unsupported by consideration, and that it was invalid as against the Statute of Frauds. We affirm.
Our consideration of this appeal has not been assisted by Sutherland's failure to include several key documents in her record appendix, including: her initial answer to the complaint, both of the motions to dismiss which she contests on appeal, and her motion for judgment notwithstanding the verdict (n.o.v.). See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997).
The text of the judge's ruling on Sutherland's motion for judgment n.o.v., which appears on the docket, suggests that only one of the claims initially raised in Sutherland's motion for directed verdict was properly renewed at the close of trial, i.e., that the notice requirement of paragraph 41 of the purchase and sale agreement was not complied with. See Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998). See also Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 34 (1991) ("no grounds for the motion for judgment notwithstanding the verdict may be raised which were not asserted in the directed verdict motion").
On appeal, Sutherland has failed to adequately press this claim, which is only mentioned in a single sentence of her brief. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In addition, her claim that the judge erroneously granted relief under G. L. c. 231, § 6F, is deficient for the same reason. Neither of these claims rises to the level of appellate argument, and we decline to consider them. See Lolos v. Berlin, 338 Mass. 10, 14 (1958). In the interests of judicial economy, we consider Sutherland's other claims only to the extent they are not waived.
1. Apparent authority. Sutherland claims that Stephen Cronin, the attorney she retained to represent her in the sale of her home, lacked authority to agree on her behalf to an amendment extending the closing date to February 24, 2010. We disagree. "[A]n attorney for a party to an agreement for the purchase and sale of real estate has apparent authority to agree to a change in the closing date." Rex Lumber Co. v. Acton Block Co., 29 Mass. App. Ct. 510, 516 (1990). See Johnson v. Kelley, 342 Mass. 724, 727 (1961). This is subject only to the principal's duty, "upon learning what the attorney has agreed to, [to] promptly disavow the modification, at least until others have relied on it to their detriment." Rex Lumber Co. v. Acton Block Co., supra at 516-517. Sutherland's assertion that she was unaware of Cronin's actions was a question of fact which was properly committed to -- and ultimately rejected by -- the jury. In the light most favorable to the plaintiffs, the jury could have credited contrary evidence that Sutherland was merely looking for an escape from the purchase and sale agreement to which she had previously agreed. The evidence also supported findings that: (1) Sutherland knew of, and agreed to, the amendment as early as December 21, 2009 (twenty days before Cronin signed the amendment on her behalf); (2) Sutherland failed to promptly communicate to the plaintiffs or their attorney that Cronin had acted outside his authority by signing the amendment; and (3) the plaintiffs reasonably relied on Cronin's action to their detriment by hiring an architect, taking additional steps to secure financing, and attempting to close the sale. See Foley v. Polaroid Corp., 400 Mass. 82, 85 (1987). In these circumstances, Sutherland's failure to disavow Cronin's purportedly unauthorized action was "tantamount to acquiescing in its accuracy." Rex Lumber Co. v. Acton Block Co., supra at 518.
On that date, Cronin informed the attorney for the plaintiffs that he "spoke with [Sutherland] regarding the extension and she is fine." In addition, Cronin testified at trial that "[w]hat Ms. Sutherland said to me was, 'I will agree to this extension provided they agree to extend the closing date out, I still have not found an apartment.'"
2. Motion to dismiss under rule 12(b)(6). Sutherland claims the plaintiffs failed to plead sufficiently detailed allegations which plausibly suggested an entitlement to relief. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). See also Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In Sutherland's view, the plaintiffs' complaint should have been dismissed because it did not include an allegation that Cronin, not Sutherland, had signed the amendment. We disagree. Taken as true, the plaintiffs' allegation that "[o]n or about January 10, 2010, the parties agreed to amend the Agreement and entered into an Amendment to Purchase & Sales Agreement extending the performance requirement . . . to February 24, 2010" was sufficient to allege a valid contract between the parties, regardless of whether it was signed by Sutherland or her authorized agent. See Adams v. Liberty Mut. Ins. Co., 60 Mass. App. Ct. 55, 63 n.14 (2003) (under indulgent rule 12[b][6] standards, "we have little doubt . . . that the allegations of the complaint adequately constitute a claim for relief"). There was no error in denying the motion on these grounds.
3. Special motion to dismiss under G. L. c. 184, § 15(c) . Finally, Sutherland challenges the denial of her special motion to dismiss. See G. L. c. 184, § 15(c). The question before the judge was whether the plaintiffs' claim was "frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds." Ibid., inserted by St. 2002, c. 496, § 2. The judge did not abuse his discretion by denying this motion. Because the amendment was signed by an authorized agent of Sutherland, i.e., the attorney whom she retained to represent her in the sale of her home, the Statute of Frauds was satisfied. See G. L. c. 259, § 1. In all other respects, we have little trouble concluding that the plaintiffs' claim was not frivolous. See Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 81 (2005).
We also reject Sutherland's claim that the amendment to the purchase and sale agreement was not supported by valid consideration. The jury could have found that Sutherland agreed to renew the plaintiffs' mortgage contingency clause (an option which had by then expired) in exchange for a later closing date, a term favorable to her. See note 3, supra. This is the very essence of a bargained-for exchange, in which a return promise is "sought by the promisor in exchange for [her] promise and is given by the promisee in exchange for that promise." Restatement (Second) of Contracts § 71(2) (1981). See Loranger Constr. Corp. v. E. F. Hauserman Co., 376 Mass. 757, 763 (1978).
Judgment affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 14, 2015.