Opinion
14-P-708
02-25-2015
JACK SAADE v. SAMMYLEE, LLC, & another.
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 defendants, Sammylee, LLC, and its principal, Chung S. Lee (collectively, Sammylee), appeal from a judgment of the Superior Court, following a jury-waived trial, ordering Sammylee to convey title to certain real property to the plaintiff, Jack Saade. We affirm, for substantially the reasons set forth by the trial judge in his memorandum of decision.
As found by the trial judge, Sammylee accepted Saade's formal written offer to purchase property from Sammylee. The offer, titled "Contract to Purchase," specified that (1) upon acceptance, the parties would execute a purchase and sale agreement (P&S) on or before September 21, 2012, and closing would take place on or before October 22, 2012; (2) the "P&S is ex[e]cuted upon getting plot plan. Subject to clean soil"; and (3) "Seller can marketing [sic] property for sell [sic] or lease until P&S date."
Right to market clause. Sammylee first contends that the judge erred in his interpretation of the right to market clause of the accepted offer. We accept the trial judge's findings of fact unless they are clearly erroneous and review his legal conclusions de novo. T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569 (2010). "The interpretation of a contract presents a question of law for the court, except to the extent disputed facts bear upon such interpretation." USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass. App. Ct. 108, 116 (1989) (USM Corp.). "Once a contractual ambiguity emerges, the meaning of the uncertain provision becomes a question of fact for the trier." Browning-Ferris Indus. v. Casella Waste Mgmt. of Mass., Inc., 79 Mass. App. Ct. 300, 307 (2011), citing Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002).
We agree with the trial judge that the disputed provision is ambiguous, and the judge did not err in interpreting the provision to mean that, while Sammylee could continue to solicit other offers to purchase or lease the property until the parties entered into a more detailed purchase and sale agreement, it did not have the right unilaterally to terminate the agreement without cause. We also agree with the judge's conclusion that the letter of intent, which was not binding and concerned only a possible future lease -- which in fact never materialized -- did not allow Sammylee to escape its obligations under the contract with Saade.
We discern no merit in Sammylee's related arguments that the judge failed to weigh all of the relevant evidence and that his findings lack detail and exactness. The judge referenced specific evidence and testimony that he credited, and although the testimony was inconsistent throughout the trial, the record provided adequate support for his findings and resulting conclusions. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Gallagher v. Taylor, 26 Mass. App. Ct. 876, 881 (1989), quoting from Anderson v. Bessemer, 470 U.S. 564, 573-574 (1985).
Furthermore, the judge's finding that Lee drafted the clause finds support in the evidence and, therefore, is not clearly erroneous. As a result, the judge appropriately construed the remaining ambiguity "strongly against" Sammylee. Leblanc v. Friedman, 438 Mass. 592, 598 n.6, (2003), quoting from Bowser v. Chalifour, 334 Mass. 348, 352 (1956). The judge's interpretation is also consistent with the well-founded proposition that "[t]he object of the court is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose." USM Corp., supra.
Lee testified at trial that this sentence was her work and that she wrote it because of the potential lease with the butcher shop.
Conditions precedent. The defendants next argue that the judge ignored two conditions precedent to the formation of a valid contract, neither of which was satisfied. First, the absence of a more formal or detailed purchase and sale agreement did not absolve Sammylee of its obligation to convey title to the property to Saade for substantially the reasons stated in the trial judge's memorandum of decision at page 4. See Kurker v. Shoestring Properties Ltd. Partnership, 68 Mass. App. Ct. 644, 653-656 (2007).
(1) The execution of a formal P&S; and (2) Saade obtaining a plot plan prior to execution of the P&S. Sammylee advances no argument regarding the "subject to clean soil" condition.
In addition, Saade was free to waive the plot plan condition. See McCarthy v. Tobin, 429 Mass. 84, 88 (1999). "The issue of waiver is ordinarily one for the fact finder. If the facts are undisputed, however, waiver is a question of law." Id. at 88 n.5. Although the judge did not specifically make a finding that Saade waived this condition, we are satisfied that Saade has done so as a matter of law.
We note that the judge was correct in concluding that the "subject to clean soil" condition was not waived and is still enforceable by Saade.
Judgment affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 25, 2015.