Opinion
11-P-1508
04-26-2012
STEPHEN J. RONAYNE v. LUCIE RANCOURT.
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
Lucie Rancourt appeals from an order of the single justice enjoining the sale of the parties' former marital home and remanding for a determination of a reasonable time within which Stephen J. Ronayne can exercise his right of first refusal. She argues that Ronayne was required to exercise that right within the time frame set by the third-party offer and that he failed to tender performance by the outside buyer's closing date. Because we conclude that the single justice did not abuse his discretion or commit any other error of law, we affirm.
At the outset, there is a question whether the appeal is properly before us. When a single justice rules on a petition pursuant to G. L. c. 231, § 118, first par., that order is not ordinarily appealable to a panel of this court as of right. See Cataldo v. National Grid USA, 452 Mass. 1018, 1019 (2008). However, when a single justice grants injunctive relief that was denied by the trial court, his order is appealable. See Ashford v. Massachusetts Bay Transp. Authy., 421 Mass. 563, 566 (1995); Nabhan v. Selectmen of Salisbury, 12 Mass. App. Ct. 264, 268-269 (1981). Because the single justice enjoined the sale of the property, Rancourt's appeal was proper.
Pursuant to the terms of a separation agreement that was incorporated in, but not merged into, the parties' divorce decree, Rancourt resided in the former marital home and had the right to sell it. The agreement gave Ronayne 'a right of first refusal,' which was not further qualified or specified. If Rancourt opted to sell the house to a bona fide third-party purchaser and Ronayne declined to purchase it, each would receive half of the proceeds. A judge of the Probate and Family Court (who had also presided over the parties' divorce and ancillary proceedings) appointed a special master for the purpose of signing a listing agreement and selling the home.
The master signed a listing agreement that made no mention of Ronayne's right of first refusal. Ronayne's counsel brought this fact to the attention of the master and the probate judge, but no change was made in the listing agreement. On June 7, 2011, at 9:25 A. M., the master notified Ronayne's counsel that he had an offer from a third-party buyer that would expire at noon that same day. Ronayne's counsel responded minutes later, asking for a copy of the offer signed by the master and stating that he would ask his client if he intended to match the offer. Two days later, Ronayne's counsel informed the master that Ronayne did intend to exercise his right of first refusal. However, the master took the position that Ronayne had to have exercised that right before noon on June 7. As Ronayne had not, the master signed a purchase and sale agreement with the third-party buyer over Ronayne's objections. Ronayne filed a motion in probate court to remove the master and compel sale of the home to him rather than the third-party buyer, and the judge denied the motion, ruling that Ronayne's exercise of the right was untimely.
The offer also made no reference to Ronayne's right of first refusal; the buyer apparently was not aware of it.
Ronayne appealed this order to the single justice pursuant to G. L. c. 231, § 118, first par. The single justice relied on Roy v. George W. Greene, Inc., 404 Mass. 67 (1989), S. C., 408 Mass. 721 (1990), for the proposition that a right of first refusal only becomes effective when the right holder 'has a realistic opportunity to meet the offer the owner has elected to accept.' Id. at 71. Therefore, a right holder may only be held to have exercised or waived his right of first refusal after 'the owner has decided to accept a third person's outstanding and enforceable offer and the holder of the right has been informed of the details of that offer and has had a reasonable time to meet it.' Ibid. The single justice thus enjoined the sale of the home and remanded to the probate judge for a determination of what a 'reasonable time' for Ronayne to exercise his right of first refusal would be. He stated, however, that a reasonable time in this case would not be less than fifteen business days.
We review the order of the single justice as if it had been made by the probate judge, for abuse of discretion or error of law. See Jet-Line Servs., Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645, 646 (1988). Rancourt's contention that Ronayne was bound by the timing of the third-party buyer's offer is contrary to the requirement of Roy, supra, that he be given a 'reasonable time' and a 'realistic opportunity' to purchase the property on the same terms as the third-party buyer. While what is a 'reasonable time' depends on the circumstances of the case, see Charles River Park, Inc. v. Boston Redev. Authy., 28 Mass. App. Ct. 795, 814 (1990), two and one-half hours is an unreasonable time to allow for the exercise of a right of first refusal 'on logistical grounds alone,' as explained by the single justice. The single justice correctly recognized that the probate judge had not applied the rule of Roy, supra.
Rancourt also argues that Ronayne did not effectively exercise his right of first refusal because his counsel only stated that he 'intended' to exercise that right, and that Ronayne was not willing and able to close on the date specified in the third-party offer. The messages from Ronayne's counsel were sufficient notice of his exercise under the circumstances. It would have been futile for Ronayne to further assert his right to purchase the property given that the master, Rancourt, and the probate judge all insisted he had lost that right. Nor was Rancourt excused from honoring the right of first refusal based on Ronayne's alleged failure to obtain a mortgage or make other arrangements to purchase the home. Cf. Frostar Corp. v. Malloy, 63 Mass. App. Ct. 96, 106-108 (2005), S. C., 77 Mass. App. Ct. 705 (2010). The master declined to sign a purchase and sale agreement with Ronayne, despite the offer of Ronayne's counsel for Ronayne to sign the agreement drafted by the third-party buyer with only the names changed. Ronayne thus had no obligations to perform. We discern no error in the single justice's ruling. ,
Rancourt's argument that the single justice's order creates an impermissible restraint on alienation is without merit. See Bortolotti v. Hayden, 449 Mass. 193, 204-205 (2007).
Ronayne's request for double costs and attorney's fees, which we interpret as being made under Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), is denied, as Rancourt's appeal is not frivolous.
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Order of the single justice affirmed.
By the Court (Berry, Kafker & Meade, JJ.),