Opinion
21-P-760
07-12-2022
RUDY EL NAR & others[1] v. MARY SALIS
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
This appeal arises from plaintiff Rudy El Nar's offer to purchase a condominium unit owned by defendant Mary Salis. Salis accepted El Nar's offer but then had misgivings about the sale, and the parties never executed a purchase and sale agreement. After the deadline for executing a purchase and sale agreement expired, El Nar brought this action alleging that his offer, and Salis's acceptance of it, formed a binding contract for the sale of the condominium unit. Following an order granting Salis's motion to dismiss and denying El Nar's motion for judgment on the pleadings, a judgment entered in favor of Salis. El Nar appeals. We conclude that both motions should have been denied, and we therefore vacate the judgment in favor of Salis and remand for further proceedings.
El Nar's parents provided the money for the deposit that accompanied El Nar's offer, are named as plaintiffs, and also appeal from the judgment. They raise no separate arguments.
Given this resolution, we need not address El Nar's argument that Salis's motion to dismiss was procedurally improper as it was filed after Salis filed an answer to the complaint.
Background.
1. El Nar's complaint.
El Nar's complaint and the attached exhibits set forth the following factual allegations. On July 3, 2020, El Nar submitted an offer on a preprinted form to purchase Salis's condominium unit for $549,900. That same day, Salis accepted the offer. The offer stated that Salis's acceptance of it would "form a binding agreement." The offer required El Nar and Salis to "execute the [s]tandard [p]urchase and [s]ale [a]greement of the [Massachusetts Association of Realtors] or substantial equivalent" by July 14, 2020, and was "[c]ontingent upon a [m]utually [s]atisfactory [p]urchase [and] [s]ale [a]greement." The offer also specified that the closing would occur on September 15, 2020, at the Norfolk County registry of deeds or some other mutually agreeable place. Pursuant to the offer, time was of the essence. On July 10, 2020, El Nar offered an addendum that, among other things, would have (1) moved the closing to July 31, 2020, and (2) permitted Salis to continue residing at the property until December 31, 2020.
The present record does not reflect that Salis responded to the offered addendum.
On July 13, 2020, El Nar received an e-mail from his real estate broker, Colleen Brennan-Russo, stating that (1) she had not received a draft purchase and sale agreement from Salis and (2) she had received a telephone call from Salis's real estate broker, Tom O'Neill, who said that Salis "want[ed] to pull out of [the] sale." El Nar's attorney also contacted O'Neill, who said that he would speak with Salis and follow up the next day. On July 15, 2020, O'Neill sent El Nar's attorney an e-mail stating that "[t]he property [was] off the market" and that he was "no longer representing [Salis]."
2. Salis's answer.
Salis's answer stated the following. She did not read or understand El Nar's offer, which was conveyed to her orally by O'Neill. Moreover, it was Salis's understanding that the offer was subject to further negotiations regarding her occupancy and when she would be required to vacate. Salis thought it was understood that the sale was subject to her finding suitable housing. Salis further stated that there was no meeting of the minds on when she would vacate, as evidenced by El Nar's addendum to his offer.
Discussion.
The dispute between the parties focuses on the Supreme Judicial Court's decision in McCarthy v. Tobin, 429 Mass. 84 (1999). In McCarthy, the seller accepted an offer that (1) was submitted on a preprinted form, (2) contained "a description of the property, the price to be paid, deposit requirements, limited title requirements, and the time and place for closing," and (3) stated that it created binding obligations. Id. at 85. The offer required the parties to execute a standard purchase and sale agreement and was "[s]ubject to a [p]urchase and [s]ale [a]greement satisfactory to [b]uyer and [s]eller." Id. Thereafter, the seller received a higher offer and declined to execute the purchase and sale agreement that the parties had negotiated. See Id. at 85-86.
The seller argued that the language contemplating the execution of a purchase and sale agreement gave rise to an inference that there was no binding contract. See McCarthy, 429 Mass. at 87. The court disagreed and explained that "if . . . the parties have agreed upon all material terms, it may be inferred that the purpose of a final document which the parties agree to execute is to serve as a polished memorandum of an already binding contract" (quotation omitted). Id. The court further explained that "norms exist" for the customary resolution of disagreements regarding purchase and sale agreements. Id. (quotation omitted) . The court concluded that the offer in McCarthy "reflect[ed] the parties' intention to be bound." Id. at 88.
However, as the Supreme Judicial Court recently made clear, the holding in McCarthy is "limited to cases in which all material terms are agreed to and contained in the offer to purchase." Battle v. Howard, 489 Mass. 480, 492 n.12 (2022). In other words, it is not always true that an "accepted offer . . . and not the purchase and sale agreement constitutes the contract for sale that is enforceable in equity by specific performance." Id. Moreover, a party's conduct after an offer has been accepted may show that there was no agreement on a material term. See, e.g., Germagian v. Berrini, 60 Mass.App.Ct. 456, 460 (2004) (buyer's conduct in waiting for purchase and sale agreement to commence obtaining financing, variances, and permits demonstrated that he did not view offer as binding).
In addressing how McCarthy applies to the circumstances of this case, we bear in mind that the case was resolved on Salis's motion to dismiss and El Nar's motion for judgment on the pleadings. We review both types of motions de novo, accepting the nonmoving party's factual allegations as true. See Mullins v. Corcoran, 488 Mass. 275, 281 (2021). Salis was not entitled to a judgment of dismissal if the factual allegations in El Nar's complaint and the attached exhibits, and the reasonable inferences that could be drawn therefrom, plausibly suggested an entitlement to relief. See Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 17 (2018). Similarly, El Nar was not entitled to a judgment on the pleadings if Salis's denials "put in question a material allegation of the complaint." Tanner v. Board of Appeals of Belmont, 2 7 Mass.App.Ct. 1181, 1182 (1989).
We note that the judge stated at the motion hearing that she would treat the parties' motions as ones for summary judgment. However, her order on the parties' motions did not do so. We further note that the parties argue that no further discovery is necessary and that we may resolve their dispute by treating their motions as ones for summary judgment. Given the limited record at this stage in the proceedings, we disagree.
A review of El Nar's factual allegations, and Salis's denials of those allegations, shows why both party's motions should have been denied. El Nar alleged that Salis accepted an offer that, similar to the offer in McCarthy, was submitted on a preprinted form and stated that Salis's acceptance of it would form a binding agreement. Also similar to the offer in McCarthy, the offer contained key terms such as a description of the property, the price to be paid, and the time and place for closing. Thereafter, Salis expressed an intention to pull out of the sale and declined to negotiate a purchase and sale agreement. These factual allegations could support an inference that Salis intended to be bound by the offer and that she then repudiated it. However, Salis denied that she intended to be bound by El Nar's offer, or that she even understood it. In particular, Salis denied that there was an agreement on when she would vacate the property, and she pointed to the offered addendum as providing some support for that denial. Given El Nar's allegations, and Salis's denials of those allegations, this case could not have been resolved on the pleadings.
Salis argues that, where the offer stated that time was of the essence, the offer expired when the parties failed to enter into a purchase and sale agreement by the deadline for doing so. This argument overlooks that El Nar contends that Salis repudiated the offer prior to that deadline. See, e.g., Coviello v. Richardson, 76 Mass.App.Ct. 603, 608-611 (2010).
El Nar argues that the original offer, which stated a closing date of September 15, 2020, controls. El Nar implies that, pursuant to existing norms, Salis agreed to vacate the condominium unit by that date. El Nar's argument on this point does not accept Salis's denials as true.
El Nar's request for attorney's fees and Salis's request for sanctions are denied.
The judgment is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
The panelists are listed in order of seniority.