Opinion
No. 15–P–1426.
11-04-2016
Susan RUFO, trustee,& another v. WASHINGTON OAK SQUARE, LLP.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment of the Land Court declaring that a certain agreement between the parties, and the easements granted to the plaintiffs therein, are not valid or enforceable. We discern in the plaintiffs' various claims on appeal no cause to disturb the judgment, and affirm, addressing the plaintiffs' arguments in turn.
1. Parol evidence. There is no merit to the plaintiffs' claim of error in the denial of their motion in limine, which sought to exclude extrinsic evidence concerning the parties' negotiation, execution, and delivery of the agreement, if for no reason other than the observation by the trial judge that parol evidence is relevant and admissible on the defendant's affirmative defenses of mistake and fraud. See Mickelson v. Barnet, 390 Mass. 786, 792 (1984) ; Commerce Bank & Trust Co. v. Hayeck, 46 Mass.App.Ct. 687, 691 (1999). Moreover, the crux of the defendant's defense is that the agreement was never formed, and that the plaintiffs breached or disregarded a condition of the escrow under which partially executed counterparts of the written agreement were delivered to the plaintiffs; evidence of the existence and terms of that escrow were, of course, admissible on the question whether the agreement was fully executed and delivered, with shared intent by the parties that they would be bound by it.
2. Validity of the agreement. We likewise discern no error in the conclusion by the trial judge that the agreement (and the easements conveyed therein) was invalid and unenforceable. The plaintiffs frame the question as one of a failure of consideration, and contend that the consideration set forth in the agreement was both adequate and complete, pursuant to the express terms of the parties' agreement. Our reading of the trial judge's thorough memorandum of decision suggests that her conclusion that the agreement is unenforceable did not rest principally on a failure of consideration, but on a conclusion, supported by her findings of fact which, in turn, are supported by the evidence, that the parties did not reach a point where they held a shared intent to be bound. The evidence at trial reveals that the defendant delivered partially executed counterparts of the agreement to the plaintiffs, on the condition and with the understanding that it would not be recorded until: (i) the plaintiffs procured the signatures of additional parties to the agreement, (ii) a plan in recordable form, depicting the location of the easements and parking spaces, was prepared and attached to the agreement, and (iii) most significantly, the period for appeal from the variance authorizing the defendant's project had passed, without an appeal taken by the plaintiffs.
Judgment affirmed.
Of 17 Shanley Street Condominium Trust and of 11 Shanley Street Condominium Trust.