Opinion
23-P-902
07-17-2024
ROBERT LEAF v. JAMES M. DRISCOLL, SECOND.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, James M. Driscoll, II, owns a three-acre parcel in Nantucket to which we refer by its address, 10 Driscoll Way. On October 20, 2020, Driscoll accepted plaintiff Robert Leaf's offer to purchase 10 Driscoll Way for $1.5 million. Under the terms of their written offer to purchase agreement (OTP contract), the parties were to enter into a purchase and sale agreement by November 24, 2020, with the closing to take place by January 25, 2021. However, the deal foundered after Driscoll indicated his refusal -- and claimed inability -- to abide by one of the agreed-to terms of the OTP contract. Leaf brought the current action seeking specific performance. Following a four-day trial, a Superior Court jury found in Leaf's favor on special questions, and the judge entered judgment requiring Driscoll to sell 10 Driscoll Way for the agreed-to price. The judge then denied posttrial motions by Driscoll. On Driscoll's appeal, we affirm.
Background.
The relevant facts are largely undisputed.
The OTP contract was on a standard form that included a warning in its title: "THIS IS A LEGALLY BINDING CONTRACT. IF NOT UNDERSTOOD, SEEK COMPETENT ADVICE." It described the property being purchased with particularity, set forth the payments that Leaf as buyer was required to make, stated that the parties "shall, on or before 11/24/2020 execute a Purchase and Sale Agreement, which when executed, shall be the Agreement between the parties thereto," and recited that "[t]ime is of the essence." The OTP contract also included an addendum that set forth ten special terms put forward by Leaf. The first five special terms made the contract subject to Leaf's confirming that the property was developable in certain respects (with Leaf entitled to additional time if his efforts to obtain test results were delayed). For example, the first term stated that the offer was "subject to a satisfactory percolation test to be done by 11/23/2020, to confirm lot suitability for a 9-bedroom septic system, satisfactory to [Leaf]." The last four special terms required Driscoll to allow Leaf, at Leaf's sole expense, to take certain actions with respect to maintenance of the access road. That leaves the sixth item, referred to by the parties as "condition #6." Because the deal nominally fell apart over disagreements as to what condition #6 meant, it merits discussion in detail.
Driscoll argues that the special terms obligated Leaf to take certain affirmative actions, such as fixing the road, before the sale was to occur. Although the OTP contract is hardly a model of clarity, we disagree with Driscoll's interpretation.
Condition #6 addressed Leaf's aesthetic concerns about at least one broken-down boat, an abandoned horse trailer, and various other debris left in or adjacent to "the circle," the cul-de-sac at the end of the road that provided access to 10 Driscoll Way. The circle bordered both 10 Driscoll Way and the adjacent lot where Driscoll himself lived, at 6 Driscoll Way. According to uncontested testimony from Driscoll, a third-party had left the debris in this area. Condition #6 provided that the OTP contract "is subject to [Driscoll] or his successors not storing any boats, tractors, or similar vehicles and heavy equipment in the circle or within 100 feet of the circle." On its face, that language appears to encompass not only the removal of the existing debris, but also an agreement by Driscoll not to store boats and heavy equipment in the denominated area going forward. Moreover, the reference to "or his successors" could be interpreted as signifying that, as part of the sale of 10 Driscoll Way, Driscoll had agreed to provide Leaf a deed restriction on 6 Driscoll Way (so as to enforce the prohibition on storage there). In fact, the attorney that Driscoll hired to draft the purchase and sale agreement contemplated by the OTP contract, David J. Buckley, interpreted condition #6 that way.
After Buckley discussed the ramifications of condition #6 with his client, Driscoll balked at that condition. On November 18, 2020, that is, six days before the purchase and sale agreement was supposed to be executed, Buckley sent Leaf's counsel, Steven Cohen, a draft purchase and sale agreement. That draft, which Buckley's email message stated his client had not yet approved, included paragraph twenty-six, which incorporated the substance of condition #6, while reducing the area in which the prohibited items could be stored from one hundred feet from the circle to fifty feet from it. In explaining the proposed change, Buckley stated that "[a]pparently, when he signed the offer he didn't fully appreciate that he would be limiting his use of his property at 6 Driscoll Way."
In pertinent part, the proposed paragraph 26 (e) stated as follows:
"At closing, the SELLER shall deliver, a Grant of Right of Enforcement of Restriction, in recordable form, which shall prohibit the outdoor long term storage, which is visible from the premises, of any boats, tractors, heavy equipment, or similar vehicles within the circle at the southern terminus of Driscoll Way or within 50 feet of said circle on [6 Driscoll Way], provided, however, nothing contained therein shall prohibit temporary storage of any of the
By email message sent at 1:04 Z-M- on Friday, November 24, 2020, Cohen responded that Leaf was "firm on the 100' from the lot line of the circle." Two hours later, Buckley sent Cohen an email message requesting that Cohen call him, to which Cohen responded by email saying "[n]ot negotiable." At 4:23 P.M. that same day, Buckley responded, "If that's the case, it sounds like we're at an impasse." He also highlighted the complication that Driscoll's son Michael was a co-owner of 6 Driscoll Way and that "Michael did not agree to the restriction and will not sign anything that restricts his future use of the property." In a foregoing on [6 Driscoll Way] or storage of any of the foregoing within a permitted structure on [6 Driscoll Way] . " further response that day, Cohen stated that "[w]e are not at an impasse," and after threatening litigation, he implored Buckley to propose a solution.
We refer to Michael Driscoll by his first name so as to avoid confusion. We note that Driscoll argued at trial that Cohen knew or should have known that Michael was a co-owner of 6 Driscoll Way when the OTP contract was executed, because Cohen had attended a town meeting the previous year at which ownership of that lot was at issue. In his own testimony, Cohen acknowledged that he had attended the meeting, but denied learning of Michael's interest there. Putting aside that Driscoll has not demonstrated the import of whether Cohen previously was aware of Michael's interest in 6 Driscoll Way, the procedural posture of this case requires us to view the evidence in a light favorable to Leaf, the party in whose favor the jury found.
After no apparent communication over the weekend, Cohen wrote again to Buckley at 4:06 P.M. on Monday, November 23, 2020, asking whether Buckley had "[a]ny solutions to propose," and stating that Leaf "would consider [agreeing to a restriction] 50' from the road and mutual property line." Later that day, Cohen wrote yet again referencing that he had heard "that we have been missing each other on the phone" and inviting Buckley to call again if he wanted to discuss the issue.
Buckley responded by email at 2:06 P.M. the following day (the day the purchase and sale agreement was due to be executed). He stated that "Unless your client is willing to drop the restriction entirely, it sounds like we are still at an impasse." Buckley reiterated that his client did not understand that he would be restricting 6 Driscoll Way when he signed the OTP contract and that, in any event, Michael, the co-owner, did not, and would not, agree to any restriction there. The email message closed with Buckley's requesting instructions for the return of the $5,000 deposit that Leaf had made on signing the OTP contract.
By email message sent at 3:19 P.M. that day, Cohen stated that "[t]his does not seem like an impasse to me. I'm sure that there is a solution." He specifically proposed a particular modification of the terms of a restriction, and invited a response while proposing a one-day extension of the deadline to draft the purchase and sale agreement, "[t]o take the pressure off." When no response came, Cohen wrote again at 5:01 P.M. saying "I would appreciate a response here. What is going on with this deal?"
Buckley responded at 9:03 the following day (November 25, 2020). He stated that "[Driscoll] will not proceed with this transaction." He further stated that Driscoll had not agreed to the requested extension and that "our position is that the offer has now lapsed on it[s] terms, as the deadline to execute a Purchase and Sale Agreement has passed." Later that morning, Cohen responded by stating his disagreement with Buckley's position and that his client was willing to drop the need for any restriction on 6 Driscoll Way. This did not alter Driscoll's position, and a November 30, 2020 meeting between the parties at Driscoll's home ended badly. By email message sent on November 30, 2020, after that meeting, Buckley confirmed that "my client will not proceed with this transaction and as far as he is concerned, it's over." Leaf filed suit the following day.
Unlike most of the other facts, the parties hotly contested how the November 30, 2020 meeting came about and what transpired there. Putting aside that the procedural posture of this case requires us to view the facts in a light favorable to Leaf, the details of what transpired at the meeting are not material.
Following a four day trial, the jury unanimously ruled in Leaf's favor while making the following findings: (1) that the OTP contract was "a valid, binding and enforceable agreement;" (2) that Leaf had not proven that the OTP contract was voidable or invalid based on mutual mistake; (3) that Driscoll repudiated the OTP contract before the November 24, 2020, deadline for signing the purchase and sale agreement had run; and (4) that Leaf was "ready, willing and able to pay the [agreed-to] purchase price" on the date of the scheduled closing. Based on the jury's verdict, the judge entered judgment requiring specific performance, and Driscoll appealed.
Representing himself, Driscoll filed various posttrial motions within ten days of the judgment, including one styled as a motion for a new trial pursuant to Mass. R. Civ. P. 59, 365 Mass. 827 (1974). Following a hearing, the trial judge denied that motion. In his endorsement order, the judge addressed various issues that Driscoll raised and ultimately stated his conclusion that "I do not find that it appears on a survey of the whole case that otherwise a miscarriage of justice would result." Driscoll also filed a separate motion styled as a "Combined Rule 52 and 59 Motion to Alter/Amend the Judgment and Find Additional Facts." See Mass. R. Civ. P. 52, as amended, 423 Mass. 1408 (1996). The judge denied that motion after hearing. The judge explained that "[t]he case was tried to a jury that was asked to answer Special Questions that were agreed to by the parties. The court cannot amend the jury's answers to the Special Questions." This appeal followed.
Discussion.
We begin by addressing open motions. After briefing was completed, Driscoll filed a motion seeking to submit a supplemental brief to argue that the Superior Court lacked subject matter jurisdiction. The motion did not explain his theory in asserting a lack of jurisdiction, and he was unable to explain his theory at oral argument. When asked by the panel whether he was seeking to argue that the Land Court had exclusive jurisdiction over this litigation, he nevertheless answered in the affirmative. We deny Driscoll's open motion to submit a supplemental brief on subject matter jurisdiction. At its heart, this litigation is an ordinary action to enforce a contract to purchase a parcel of land. The fact that such land happened to be registered does not preclude the Superior Court's jurisdiction to hear such disputes. See O'Donnell v. O'Donnell, 74 Mass.App.Ct. 409, 411 (2009) (Land Court does not have exclusive jurisdiction "where the judgment sought would not of its own force purport to modify the registered title of land covered by a certificate of title").
Also after the briefing by the parties was completed, the defendant's son, who is apparently a law student, filed a motion to submit a brief as an amicus curiae (even though his interest in the outcome of this litigation is tangential at best). In part to reduce Driscoll's potential exposure to an award of attorney's fees, we issued an order barring any further briefing of the issues that the purported amicus brief sought to raise, while indicating that Leaf would have the opportunity to respond if the panel "were to allow the motion and deem any argument made in the proposed amicus brief worthy of response." Having reviewed the substance of the proposed amicus brief, we determine that no action is necessary on the motion to submit it, as nothing in the brief would affect the outcome of this case.
On May 2, 2024, Driscoll brought to our attention that by order issued the previous day, the trial judge corrected the record in certain minor respects but declined to modify the record in certain others. To the extent that the judge made corrections, Driscoll's motion to modify the appellate record to take account of those corrections is allowed. To the extent that Driscoll seeks relief from the judge's declining to make further modifications, no action is necessary on Driscoll's motion, because the changes he seeks would not make any difference in the outcome.
We now turn to the merits. Representing himself, Driscoll filed a discursive brief seeking to challenge the judgment on numerous grounds. Driscoll's primary arguments are that Leaf's claims fail as a matter of law notwithstanding the jury's verdict. Although there was ample evidence based on which the jury could conclude that Driscoll had made it clear on November 24, 2020, that he would not abide by condition #6, it does not necessarily follow that such a refusal amounted to a repudiation of the contract. See Coviello v. Richardson, 76 Mass.App.Ct. 603, 609 (2010), quoting Bucciero v. Drinkwater, 13 Mass.App.Ct. 551, 555 (1982) ("A repudiation of a contract is a material breach, and '[i]n order to operate as a discharge of the other party, the repudiation must be either with respect to the entire performance that was promised or with respect to so material a part of it as to go to the essence. It must involve a total and not merely a partial breach'"). If Driscoll did not repudiate the contract, then Leaf would not be excused from presenting Driscoll with a purchase and sale agreement signed by him and a check for the rest of the ten percent of the purchase price due under the OTP contract on November 24, 2020. And while Driscoll the following day made it clear that he was unwilling to abide by the OTP contract even if Leaf waived condition #6, there is at least some force to Driscoll's argument that the OTP contract already had expired by that point in light of the "time is of the essence" clause. See Owen v. Kessler, 56 Mass.App.Ct. 466, 466-467 (2002) ("The lesson to be learned from this real estate deal gone bad is a simple one: a 'time is of the essence' clause means that contractual deadlines will be strictly enforced").
We note that the agreed-to special verdict slip presented an alternative theory of liability. If the jury concluded that Driscoll had not repudiated the contract prior to the date that the purchase and sale agreement was to be signed, they were then supposed to consider whether the parties, through their conduct or statements, had waived that deadline. Given that the jury found Driscoll had repudiated the contract prior to the running of the deadline, it never reached the alternative theory.
At the same time, however, "[b]ecause the jury are a pillar of our justice system, nullifying a jury verdict is a matter for the utmost judicial circumspection." Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 350, cert, denied sub nom. Benistar Ltd. v. Cahaly, 555 U.S. 1047 (2008) . Moreover, one seeking to prevail as a matter of law notwithstanding the jury's verdict must properly preserve such arguments, a "rule [that] has been applied with considerable strictness." Hatton v. Meade, 23 Mass.App.Ct. 356, 362 (1987). At no point during the trial did Driscoll move for a directed verdict arguing that he should prevail as a matter of law even in the face of the evidence presented. His failure to do so means that "he is barred from challenging the sufficiency of the evidence here." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 846-847 (1983). Because the jury's findings support the judgment entered, Driscoll's inability to challenge the jury's findings is insurmountable.
We note that had Driscoll filed motions for a directed verdict, followed by a motion for a judgment notwithstanding the verdict, he would have faced a daunting standard of review. The jury's "verdict will be upheld if it may be determined that 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [prevailing party]" (citation omitted). Sullivan v. Five Acres Realty Trust, 487 Mass. 64, 68 (2021). Moreover, notwithstanding Driscoll's assertions that Leaf committed perjury in giving his testimony, matters of credibility fall within the jury's purview, not ours. See Dakin v. OSI Restaurant Partners, LLC, 100 Mass.App.Ct. 92, 95 (2021), quoting DeSantis v. Commonwealth Energy Sys., 68 Mass.App.Ct. 759, 762 (2007) (in reviewing denial of motion for judgment notwithstanding verdict, "[w]e view the evidence in the light most favorable to the nonmoving party, 'without weighing the credibility of the witnesses or otherwise considering the weight of the evidence'").
We are unpersuaded by Driscoll's remaining arguments. For example, although he appears to take issue with the judge's instructions to the jury and with the form of the special verdict slip the jury were given to complete, he ultimately agreed to both at trial and therefore is precluded from challenging them now. See Greene v. Philip Morris USA Inc., 491 Mass. 866, 877-878 (2023). To the extent Driscoll seeks to challenge the judge's evidentiary rulings, such claims generally were not preserved through timely objections, and in any event, we discern no abuse of the judge's considerable discretion. See Anthony's Pier Four, Inc, v. HBC Assocs., 411 Mass. 451, 477 (1991) (rulings on admissibility of evidence are committed to "sound discretion of the trial judge" [citation omitted]). Our comprehensive review of the trial record reveals that --contrary to Driscoll's claims -- the judge acted in a fair and balanced manner throughout the trial. To the extent that we do not address Driscoll's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Department of Revenue v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) .
Although Driscoll also purports to appeal from the denial of his posttrial motions, he has presented no separate argument as to that portion of his appeal. In any event, it suffices to say that Driscoll has not demonstrated that the trial judge abused his discretion in denying those motions. See Evans v. Multicon Constr. Corp., 6 Mass.App.Ct. 291, 295 (1978) ("judge should not take it upon himself to nullify a jury's verdict by granting a new trial unless it appears on a survey of the whole case that otherwise a miscarriage of justice would result").
Leaf has requested an award of attorney's fees on the ground that Driscoll's appeal was frivolous. Exercising our discretion, we deny Leaf's request. In our view of the record and arguments raised by the parties, deviating from the so-called "American rule," under which litigants generally bear their own litigation costs, would be inequitable. That said, it would be a mistake by either side to interpret our ruling as an open invitation to prolonging this dispute further.
Judgment affirmed.
Orders denying posttrial motions affirmed.
The panelists are listed in order of seniority.