Opinion
No. 95-0903-B
May 29, 1997
MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION.
The plaintiff Sarah C. Mederos has brought the present action for specific performance of an alleged written agreement for conveyance of real property made by the defendant Emily M. Merrill. Pursuant to Mass. R. Civ. P. 56 (b), the defendant Merrill moves for summary judgment upon grounds of unenforceability of the writing. Plaintiff Mederos opposes the motion. For the following reasons, I ALLOW the defendant's motion.
BACKGROUND.
From the verified complaint, the answer, affidavits, and verified excerpts of deposition transcripts, the following undisputed facts emerge.
Sarah C. Mederos (Mederos) and Emily M. Merrill (Merrill) have been longtime friends and neighbors in Norwell, Massachusetts. Mederos resides at 141 Pine Street and Merrill at 109 Pine Street. In addition to her residence, Mederos owns a "landlocked" parcel of about 12 acres behind the open southwest portion of Merrill's property. That particular area consists of 4.5 acres fronting on Pine Street. Sometime before April 1, 1994, Mederos asked Merrill whether she could acquire a portion of Merrill's Pine Street frontage so that Mederos' son could have access to and develop the "landlocked" parcel. According to Mederos, Merrill agreed to transfer the necessary portion of her property. On April 1, 1994, Merrill signed a memorandum (Memorandum) at Mederos' home in the presence of Mederos and Mederos' lawyer, Robert Norris (Norris).
The handwritten Memorandum provides as follows:
1 April 1994
For valuable consideration, I Emily M. Merrill agree to convey to Sarah C. Mederos a certain parcel of land rectangular in shape, perpendicular to Pine Street and abutting premises presently owned by the Hurleys. The parcel will contain the minimum frontage, set back and side lines required by the Town of Norwell zoning bylaw and regulations and is to be transferred for the purpose of permitting development of Mederos' land to the rear at some time in the future.
Witness the execution hereof, as a sealed instrument as of this day and year first above written.
Robert H. Norris (signature) __________ (signature)
_______________________ _______________________ Witness Emily M. Merrill
After execution of the Memorandum, attorney Norris, in behalf of Mederos, engaged a surveyor to measure the property for transfer. The surveyor completed a plan on or about March 1, 1995. On March 22, 1995, attorney Norris wrote to attorney Richard A. Henderson as counsel to Merrill, and proposed that the attorneys meet soon thereafter in order to accomplish the transfer. He wrote a similar request on May 4, 1995. On May 8, 1995, attorney Henderson responded by letter that Mrs. Merrill would not be subdividing or conveying any interest in the property and would not be communicating any further about the subject of a transfer.
Additional uncontroverted information indicates that during the period between April 1, 1994 and March 31, 1995, Mrs. Mederos had incurred $4,310.53 in surveying costs and about $2,900 in legal fees.
The parties executed no further written arrangements after April 1, 1994. At that time Mrs. Mederos was 80 years old; and Mrs. Merrill 72. Unfortunately, a debilitating illness has rendered Mrs. Merrill incompetent to provide any information for purposes of the present litigation.
DISCUSSION.
Mrs. Merrill moves for summary judgment upon grounds of several alleged deficiencies in the Memorandum: (1) its failure to identify adequately the land to be transferred; (2) its failure to set a time for conveyance; (3) its failure to establish valid consideration for the transfer; and (4) its failure to accomplish a valid gift of the land. Mrs. Mederos contests these points. In addition she argues that her expenditure of surveying and legal costs in reliance upon the transaction should equitably estop Mrs. Merrill from repudiation of it at this time.
I. Summary Judgment Standards
Several familiar principles govern the analysis of a summary judgment motion. Allowance is appropriate if the law of the issue is settled, Mass. R. Civ. P. 56(c); Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989); and J. W. Smith H. B. Zobel, Rules Practice, § 56.8, first paragraph (1977 and 1997 Supp.); and if the probative materials demonstrate the absence of any genuine issue of material fact. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1984); and Community National Bank v. Dawes, 369 Mass. 550, 553 (1976).
A moving defendant may achieve summary judgment by a demonstration (1) that the opposing party cannot prove an essential element of its claim, Manning v. Nobile, 411 Mass.; Kouruvacilis v. General Motors Corporation, 410 Mass. 706, 711 (1991). The resisting claimant must respond with specific information creating a genuine issue of material fact. Pederson v. Time, Inc., 404 Mass. at 17. The motion judge will examine the factual materials and their reasonable inferences in the light most favorable to the opposing party. Correllas v. Viveiros, 410 Mass. 314, 316-317 (1991); Kelley v. Rossi, 395 Mass. 659, 661 (1985) and authority cited; and Hub Associates v. Goode, 357 Mass. 449, 451 n. 19 (1970), citing United States v. Diebald, Inc., 369 U.S. 654, 655 (1961). Those standards apply to the present motion.
II. The Specific Claims and Defenses. 1. The Description of the Land.
In order to satisfy the Statute of Frauds, G.L.c. 259, § 1, a written agreement for the sale of land must "recite the essential elements of the contract with reasonable certainty." Michaelson v. Sherman, 310 Mass. 774, 775 (1942). The writing should describe the land sufficiently for identification. The parties may interpret and apply the written description by reference to the circumstances of ownership, to circumstances outside the writing, and to parol evidence. Tzitzon Realty Co., Inc. v. Mustonem, 352 Mass. 648, 652-653 (1967); Desmarais v. Taft, 210 Mass. 560, 561-562 (1912); and Harrigan v. Dodge, 200 Mass. 357, 359 (1909). Here the Memorandum adequately identifies the parcel by location ("perpendicular to Pine Street and abutting premises presently owned by the Hurleys"), shape ("rectangular"), and ascertainable size ("the minimum frontage, set back, and side lines required by the Town").
2. The Time for Performance.
The Memorandum sets no time for the conveyance. In such a void, the law will imply a reasonable duration for performance. Cousbelis v. Alexander, 315 Mass. 729, 731 (1944); Michaelson v. Sherman, 310 Mass. 774, 776 (1942). Here Mrs. Mederos called upon Mrs. Merrill to carry out the alleged agreement approximately 51 weeks after its execution. She had devoted the interim to some necessary legal preparation and surveying work. Counsel for Mrs. Merrill does not recount any information of harm or prejudice by reason of the passage of the 51 weeks. In these circumstances, Mrs. Mederos sought performance within a reasonable interval.
3. The Omission of a Purchase Price; the Adequacy of Consideration.
The price of a parcel of land is undoubtedly an essential element of a contract for its sale. Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 710 (1992); Shayeb v. Holland, 321 Mass. 429, 432 (1947). Merrill asserts that the Memorandum fails to satisfy the Statute of Frauds because it does not contain a purchase price. According to Norris' affidavit, Merrill did not wish to receive payment for the transfer of her property because Mederos was her friend and because she hoped to help Mederos.
In the memorandum of law in opposition to summary judgment, Mrs. Mederos reasons that "the consideration for the bargain was the years of friendship between the parties." Id. at 7-8. However, as a matter of long settled law, Massachusetts follows the general rule that "[a]ffection for a person and the desire to make a provision for [her] are not valid consideration for a[n] . . . executory contract". Drury v. Hartigan, 312 Mass. 175, 177 (1942) (authorities collected).
Although friendship and affection may provide enough consideration to support an accomplished or executed transfer of property in certain jurisdictions, it is not enough to support a contested and unperformed promise for the transfer of property. See Williston on Contracts § 7:16 (3d ed. Supp. 1996). The record does not raise an issue of fact as to any other form of consideration provided. Therefore, the Memorandum is not an enforceable promise for the sale or transfer of land because it is not supported by valid consideration.
4. The Conveyance as a Gift.
Mrs. Mederos contends that, if the Memorandum does not evidence a contract for sale of the land, alternatively it evidences a gift of the land by Mrs. Merrill. Again, the controlling legal doctrine precludes that claim in these circumstances.
As a general rule, the proponent of a gift must produce (1) evidence of donative intent on the donor's part, and (2) evidence of delivery of the property, actual or symbolic, indicating the surrender or transfer of control. Silverman v. A L Heel Corp., 353 Mass. 108, 110 (1967); Kobrosky v. Crystal, 332 Mass. 452, 460 (1955); and Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 204 (1986). The present case contains no evidence of an act of delivery.
Although the signed Memorandum and the affidavits of Norris and Merrill's neighbor, Ronald J. Hurley, are sufficient to raise an issue of fact as to Merrill's donative intent, no evidence supports a delivery adequate to pass title to Mederos. See Silverman v. A L Heel Corp., 353 Mass. at 106. No information indicates that Merrill signed probate records or changed the use of the property; or advised others of any change of control over the property. Instead, the record does contain verified information that on one occasion, after execution of the Memorandum, Mrs. Merrill demanded that the surveyors employed by Mrs. Mederos leave her property. In short, the element of delivery is absent. We do not have a genuine issue of material fact about its presence. As a matter of law, the proposed conveyance does not qualify as a gift.
5. Estoppel.
As a final theory for conveyance, Mrs. Mederos contends that her reliance upon the Memorandum, as evidenced by the legal and surveying expenditures incurred over the ensuing months, should equitably estop Mrs. Merrill from repudiation of the transfer even if the writing does not satisfy the State of Frauds and does not substantiate a gift.
The courts will specifically enforce an apparent arrangement for the transfer of an interest in land despite noncompliance with the Statute of Frauds if the party seeking enforcement has reasonably relied upon a promise, representation, or assent of the other party; and has substantially changed its position in that reliance so that enforcement is necessary to avert a substantial injustice or inequity. Hickey v. Green, 14 Mass. App. Ct. 671, 673 (1982), citing Restatement (Second) of Contracts, § 129 (1981); and Cellucci v. Sun Oil Company, 2 Mass. App. Ct. 722, 727-732 (1974).
In this instance, as a matter of law or equity principles, the ingredients of estoppel are not present. The claimant's reliance was not extraordinary or substantial: about $7,000 in legal and surveying expenses over a period of one year. The reliance did not extend to the loss of any alternative business or financial opportunities.
Contrast Cellucci, 2 Mass. App. Ct. at 729 (the defendant oil company by protracted negotiation led the plaintiff to believe that it would purchase his land and thereby caused him to break off negotiations with an alternate potential buyer). The factual materials here do not show Mrs. Merrill to have been aware of, or to have been assenting to, the legal and surveying expenditures by Mrs. Mederos. They indicate, instead, that Mrs. Merrill's awareness of the surveying on one occasion caused her to ask the surveyors to leave the property, an inferable renunciation of the Memorandum arrangement. Mrs. Mederos' deposition testimony indicates that her son, and not she, paid for the survey work.
In short, the evidence does not permit a genuine factual issue of misleading conduct on the part of Mrs. Merrill or of major detrimental reliance by Mrs. Mederos. More accurately, the evidence reflects an expectation or hope by Mrs. Mederos that Mrs. Merrill would later make a transfer of the property as a gift. That hope or expectation, even if reasonably founded, would not amount to actionable legal reliance. See Congregation Kadimah Toras-Moshe v. DeLeo, 405 Mass. 365, 366-367 (1989). Equitable estoppel is not inappropriate.
ORDER
For the foregoing reasons, the court ORDERS full summary judgment of no liability to enter in favor of the defendant Emily M. Merrill.
__________________________________ Mitchell J. Sikora, Jr. Justice of the Superior Court