Opinion
11-P-356
12-22-2011
MICHAEL P. DAMERI v. HARLEY PROPERTIES, INC.
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
Defendant Harley Properties, Inc. (Harley) retained Absolute Auctioneers to conduct an auction sale of a car wash. Plaintiff Dameri and an associate, Fitzgerald, talked about forming a partnership in which Fitzgerald would provide expertise, Dameri would provide money, and Dameri would buy the car wash.
As agreed, Fitzgerald, rather than Dameri, attended the auction. Also participating was a telephone bidder. Eventually, the telephone bidder won out, with Fitzgerald placing a secondary or 'fall through' bid. When the telephone bidder backed out, the auctioneer contacted Dameri and activated his and Fitzgerald's fall through bid. Dameri signed several documents, including one -- the 'Terms and Conditions' form -- approving the sale price, confirming the bid, and specifying that the parties would execute a formal purchase and sale agreement (P&S), that the closing would occur within forty-five days from the date of the auction, and that failure to close within that time would constitute a breach entitling Harley to retain Dameri's $50,000 deposit. Another document -- the 'Backup Bid' form -- specified that Dameri had 'made the required deposit to bind the sale and in the event the Purchase and Sale Agreement and/or Bid Acknowledgment shall not be executed, all deposits hereunder shall be retained by [the auctioneers] as fair and negotiated damages.' Although Dameri desired a closing date of February 5, 2007, and although the auctioneer filled in Dameri's requested date on the backup bid form, the auctioneer also informed Dameri that while she would recommend the February date, Harley wanted a December, 2006, date (the forty-five days specified on the terms and conditions form). Harley rejected Dameri's requested date, insisting instead on a December, 2006, closing date.
The Terms and Conditions form specified that '[c]losing shall occur and balance of the purchase price paid within 45 calendar days from the day of the auction at a time and place agreed by all parties involved. . . . Failure by the Successful Bidder(s) to close on the property at an agreed time and place for any reason (except due to unmarketable title) will . . . constitute a default under these terms and conditions and will result in forfeiture of all deposits as liquidated damages and not a penalty.'
By early December, 2006, both parties had separately executed nearly identical P&S agreements, the only difference being the date by which the closing was to occur. (Harley's P&S providing for December 22, 2006, Dameri's specifying late February, 2007). Shortly before the December closing date, Dameri demanded return of his deposit. The auctioneer refused.
Dameri filed this action for return of his deposit and G. L. c. 93A damages. Harley counterclaimed for breach of contract and G. L. c. 93A damages. A Superior Court judge ruled on the parties' cross motions for summary judgment, dismissing both parties' c. 93A claims and Dameri's other affirmative claims. The judge also found that Dameri breached the auction/deposit agreement when he refused to proceed with the P&S and closing, awarding to Harley the $50,000 deposit and interest. We agree with the reasoning in the judge's very thoughtful memorandum of decision. We will not recapitulate that explanation here.
Dameri argues that the judge misconstrued the essential documents that make up the contract, pointing out that the 'Real Estate Auction Terms and Conditions' sheet specifies a closing date within forty-five days, whereas the 'Back Up Bid Acknowledgment' form contains a longer, February, 2007 closing date. This 'conflict,' Dameri contends, demonstrates that there was no 'meeting of the minds' on an essential contract term, i.e., the closing date, and that therefore no contract was ever formed. We are not persuaded. The judge properly looked at the entirety of the transaction, deemed these different terms to constitute an ambiguity, and resolved the ambiguity by looking at the undisputed extrinsic evidence. That evidence tended to show that the later date was filled in on the 'Back Up Bid Acknowledgment' form more as a suggestion than anything else, and that Dameri understood it as such. Dameri also knew that although the auctioneer would recommend the later date, Harley was at that time insisting on the date specified in the 'Real Estate Auction Terms and Conditions' sheet. Moreover, as the judge observed, the P&S was, in these circumstances, really little more than a ceremonial formality, all the essential terms having been agreed to through the auction. Thus, any subsequent failure to execute the P&S did not cause a failure of contract.
Dameri also complains about the interest award, generally contending that because Harley had control over the deposit, awarding interest amounts to a windfall, not just recompense for withheld funds. It has not been shown that Harley did, in fact, control the deposit.
Judgment affirmed.
By the Court (Rapoza, C.J., Mills & Graham, JJ.),