Opinion
10-P-1496
01-31-2012
LENARD B. ZIDE, trustee, & others v. KAREN L. McNIFF & others.
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
Before us is the plaintiffs' appeal from (1) an order of a Superior Court judge dismissing the plaintiffs' appeal for failure to docket in a timely fashion; and (2) the underlying order granting summary judgment to the defendants on all counts of the complaint. We reverse the order dismissing the appeal for failure to docket in a timely fashion, and affirm the grant of summary judgment.
Background. A. The sale. The disputes before us arise from the 2004 sale of the property and improvements known as 90 Apple Street in Essex (the property). In 2004, desiring to sell the property, Henry and Ellen Nichols (the sellers) engaged Nancy J. Winslow (Nannie), an agent of Coldwell Banker Residential Brokerage (Coldwell Banker), as the exclusive listing agent. At the time pertinent to this appeal, the listing price was $500,000. The sellers signed a brokerage agreement that identified Nannie as the sellers' agent but also authorized her to act as a dual agent upon notice to the sellers. The agreement explains that a dual agent cannot represent the interests of either a seller or a buyer to the detriment of the other and may not disclose a seller's or a buyer's personal motivation for buying or selling, the amount of any prior offers or counteroffers, that a seller is willing to accept less than asking price, or that a buyer is willing to pay more than the amount offered. The agreement provides that '[i]f a [dual agent] situation arises, both the Seller and the Buyer will be notified for purposes of obtaining further consent to proceed with the transaction.'
To avoid confusion, and intending no disrespect, we refer to Nannie J. Winslow and her daughter-in-law, Olivia Winslow, by their first names.
On November 4, 2004, Karen L. McNiff, who previously had bought and sold many properties in the Essex area, approached Nannie about making an offer on the property. Nannie informed the sellers that she was representing McNiff and, acting in a dual capacity, assisted McNiff in making a written offer of $475,000 without contingencies and with an acceptance deadline of November 4 at 9:00 P. M. There were no other offers at that time. The sellers rejected the $475,000 offer and McNiff, again assisted by Nannie, followed with a full price offer of $500,000 with no contingencies.
After Nannie had presented the second McNiff offer to the sellers, Josephine Baker, another Coldwell Banker agent, contacted Nannie and told her she had clients who were prepared to make a full price offer for the property. At this point, Nannie referred Baker to Olivia Winslow, also a Coldwell Banker agent, who had assisted Nannie in showing the property. Baker was not sure why Nannie referred her to Olivia and contends Nannie did not tell her she was a dual agent.
While Nannie insists she did not know the terms of the potential offer, Baker insists that she told her it was a full price offer. For the purposes of summary judgment, we assume Nannie knew it was a full price offer.
Nannie did not feel she could accept offers from other potential buyers in light of her representation of both the sellers and McNiff. Nannie informed the sellers that her assistant and daughter-in-law, Olivia, would be involved, as Nannie had a conflict in that she represented McNiff. The sellers thought it was a little odd, but did not protest. In addition, Nannie recommended to the sellers that they engage their lawyer to negotiate between competing offers, and the sellers did so.
After the sellers rejected McNiff's second offer, sometime during the morning of November 5, McNiff increased her offer to $505,000 with an acceptance deadline of 12:00 P. M. that day. The record suggests McNiff subsequently agreed to extend the deadline to 3:00 P. M.
Meanwhile, on the evening of November 4, Baker submitted to Olivia, on behalf of her clients Michael and Kerri Bisner, a written offer of $500,000 with financing and inspection contingencies. Olivia promptly telephoned and sent by electronic mail message (e-mail) the offer to the sellers. The next morning, Olivia and Baker had at least three telephone conversations during which Olivia told Baker that the sellers were elderly and wanted the deal completed that day, they already had an offer that exceeded the asking price, one Attorney Lake was now involved to handle negotiations between the competing offers, and Lake wanted to know whether the Bisners were flexible on their price and the contingencies. Baker indicated there would be movement on the price and the financing contingency, but perhaps not the inspection contingency. She also indicated that one of the Bisners was traveling and may be unavailable until after 5:00 P. M. Olivia told Baker she had back-to-back appointments but would have her cellular telephone with her and would check messages between appointments.
As it turns out, for roughly a two-hour period thereafter, when Baker attempted to call Olivia to find out the deadline for offers, Olivia's cellular telephone mailbox was full, and Baker was unable to leave a message or otherwise reach Olivia. Baker contacted Nannie inquiring about an offer deadline, and Nannie referred her to the time limit on the Bisner offer. Eventually, Baker located and called Lake at around 3:30 P. M. to tell him she had an offer to purchase (in the amount of $525,000) and had been unable to reach Olivia. Even when she spoke with Lake, however, Baker conveyed only 'verbal negotiations on changes to [the November 4 offer],' but no new written offer had been prepared or signed by the Bisners. Lake informed Baker that the sellers had accepted the third McNiff offer prior to Baker's call. He, too, had been unable to contact Olivia.
Mr. Nichols testified that he probably would have accepted the $525,000 offer from the Bisners or at least would have liked to have had the opportunity to look at it. Lake testified that he would have advised the sellers to accept the higher offer unless there was reason to believe there would be trouble with the closing.
B. Deed restrictions. The sellers took title to the property in 1969 pursuant to a deed that contained the following development restrictions: 'By their acceptance hereof the Grantees hereby agree for themselves and their heirs, assigns and transferees, not to (a) subdivide said parcel, (b) use said parcel for any purpose other than a single family residence and (c) construct any buildings within fifty (50) feet of a lot line, said prohibitions to remain in effect until January 1, 2016, and to run with said parcel.'
The summary judgment record reflects that the sellers do not recall discussing the restrictions with Nannie, but she was aware of the restrictions and informed potential buyers, including McNiff, of the restrictions. In addition, the purchase and sale agreement provides that the deed would be encumbered by '[r]estrictions contained in the [1969 deed].' The 2004 deed to McNiff does not simply incorporate by reference the restrictions in the 1969 deed, but, rather, repeats the same language, including the 2016 date.
While it is undisputed that McNiff was aware of the 1969 deed's restrictive language, there is no evidence in the record that any of the sellers, agents, or potential buyers discussed the enforceability of the restrictions with one another before the sale of the property was completed. The sellers did not realize that the restrictions had lapsed after July 17, 1999, and thought and intended that they would continue through 2016, if not in perpetuity. McNiff was under the belief through her own experience in real estate, as well as from independent legal advice, that the restrictions of the 1969 deed had expired. While she always had in mind subdividing the property, contrary to the plaintiffs' assertions, she denies, and there is no evidence in the record to support the conclusion, that she shared that plan with Nannie before the sale was completed. After rehabilitating the property's home, McNiff proceeded to subdivide the property by receiving planning board endorsement of a plan that did not require approval under the subdivision control law.
Although the plaintiffs contend McNiff told Nannie that she intended to subdivide the property, they ignore Nannie's deposition testimony that she is 'absolutely positive' McNiff did not do so. Instead, the plaintiffs endeavor to rely upon another portion of Nannie's testimony where she recounts a conversation in which McNiff told Nannie she thought she could subdivide the property notwithstanding the deed restrictions, and Nannie disagreed. It is apparent from the record, however, that this conversation took place after McNiff had purchased and rehabilitated the house and desired to put it on the market.
C. The complaint. The plaintiffs, as abutters and as assignees of the sellers, filed a fifteen-count complaint against Nannie, Olivia, Coldwell Banker, and McNiff. They sought to enforce the restrictions contained in the 2004 deed and sought damages for breach of contract and breach of fiduciary duties against the agents. In addition, they sought damages from McNiff for fraud and conspiracy.
A judge of the Superior Court granted summary judgment to the defendants holding that (i) the restrictions were unenforceable, (ii) in the absence of a written offer complying with the Statute of Frauds, the claim against McNiff for conspiracy fails; and (iii) the claim against McNiff for fraud is not assignable and consequently fails. The judge also found that the claims against the agents fail because there is no evidence that they failed to convey to the seller any written offer, and because claims sounding in fraud are not assignable. Thereafter, the judge dismissed all counts of the complaint against all of the defendants and judgment entered. The plaintiffs timely filed a notice of appeal but were late docketing the appeal. On the defendants' motion, the judge dismissed the appeal for failure to timely docket it.
Discussion. A. Dismissal. At the outset, we conclude that the judge below lacked jurisdiction to enter the order of dismissal. See Vining v. Commonwealth, 63 Mass. App. Ct. 690, 696 (2005) (issue of proper jurisdiction cannot be waived and may be addressed sua sponte on appeal). When the judge ruled on the defendants' motion to dismiss on November 18, 2010, the appeal already had been docketed in this court. Indeed, the timeliness of docketing already had been addressed by a single justice of this court on two occasions. Initially, the single justice approved the acceptance of the entry fee on August 25, 2010, after reviewing affidavits filed by the plaintiffs. Later, on September 20, 2010, after reconsideration, the single justice referred the motion to dismiss 'to the panel designated to decide the appeal.' The effect of this order was to allow the plaintiffs to proceed with the appeal, subject to decision on the defendants' motion to dismiss by the panel assigned the case.
It follows that the Superior Court judge's order, made after this court already had allowed the appeal to be docketed, is a nullity. It is for this panel to consider the question of the timeliness of docketing without consideration of or deference to the decision of the Superior Court judge. That said, we need not resolve whether the plaintiffs' delay of one day in tendering the docket fee was excusable in the circumstances, because even assuming that the appeal is properly before us, it fails on its merits.
B. Restrictions. All of the parties agree that by operation of G. L. c. 184, § 27, the restrictions contained in the 1969 deed expired after thirty years on July 17, 1999, as they had not been extended by anyone benefitting from the restrictions. The plaintiffs seek to enforce the restrictions, however, by arguing that the grantors (here, the sellers) intended to impose 'new' restrictions in the 2004 deed, and they are enforceable by the plaintiffs as the grantors' assignees or as abutters to the property. The plaintiffs' argument is not persuasive.
There is nothing in the 2004 deed to distinguish the restrictions from the expired restrictions imposed in 1969. The purpose of G. L. c. 184, §§ 26-30, was to provide a way for landowners 'to remove or prevent the enforcement of obsolete, uncertain or unreasonable restrictions,' many of which were imposed by many different deeds over periods of years. Brear v. Fagan, 447 Mass. 68, 73-74 (2006), quoting from Thirty-Sixth Report of the Judicial Council, Pub. Doc. No. 144 at 81 (1960). 'The legislation was explicitly designed to supplant . . . common-law rules with clearer, more definitive, and more efficient methods of resolving the enforceability of land restrictions.' Id. at 74. Indeed, the Legislature has determined that the need for precision and clarity with regard to restrictions is of such importance that the technical requirements of the legislation will be enforced even where to do so frustrates the original intent of the parties. See id. at 77.
Here, the parties agree that the restrictions imposed in 1969 lapsed in 1999 by operation of § 27. The sellers did not indicate to their agent or, more importantly, to the buyer (McNiff) that they intended to impose new restrictions. Indeed, the sellers expected that the 1969 restrictions were still in effect and would be at least through 2016 or in perpetuity. The record is simply devoid of evidence the sellers intended to impose 'new' restrictions. Even if that had been their intent, they failed to communicate it to Nannie or to McNiff. The sellers had to do more than merely repeat the same language contained in the 1969 deed in order to create new enforceable restrictions. The judge correctly ruled that the restrictions are not enforceable.
C. Claims against Nannie, Olivia, and McNiff. The plaintiffs make several claims, all stemming from their theory that Nannie and Olivia acted in concert with McNiff to ensure that the Bisners' second offer did not reach the sellers. The summary judgment record does not support such an inference.
1. Claims against McNiff. McNiff, assisted by Nannie, made a contingency-free written offer of $505,000 with an expiration deadline of November 5, 2004, at 12:00 P. M. The Bisners' $500,000 offer with financing and inspection contingencies was open until November 5 at 5:30 P. M. McNiff, at some point, agreed to extend her offer to 3:00 P. M. in order to allow the sellers to compare offers. Her offer ultimately was accepted.
The record is utterly lacking in evidence that McNiff colluded with or otherwise played a role in the Bisners' failure or inability to make a second written offer. That she hired Nannie to market the property when she attempted to sell it almost two years later, without more, does not support an inference that the two conspired to prevent the Bisners from buying the property. As all of the plaintiffs' claims against McNiff, aside from the claims she has violated the restrictions, are premised on a conspiracy theory, the judge correctly granted summary judgment to McNiff.
The claims against Nannie and Olivia fare no better. First, it is not at all clear that the sellers' claims of breach of fiduciary duty are assignable. See National Shawmut Bank v. Johnson, 317 Mass. 485, 488 (1945). See also Barrett v. Hamel, 337 Mass. 105, 111-112 (1958). But even if the claims properly were assigned to the plaintiffs, see Nova Assignments, Inc. v. Kunian, 77 Mass. App. Ct. 34, 42 (2010), there was no error in granting summary judgment.
2. Claims against Nannie. The plaintiffs contend that Nannie breached her duties of loyalty and best efforts to the sellers. We disagree. The sellers signed an agreement that allowed Nannie to act as a dual agent, and Nannie gave notice to the sellers when that situation arose. Having duties now to both the sellers and McNiff, it was appropriate for Nannie to remove herself from the handling of additional offers. So far as appears from this record, she did not neglect the sellers, but rather took steps to ensure that any additional offers were delivered to the sellers through another agent. As an additional safeguard, she suggested to the sellers that their attorney negotiate directly with the competing offerors. The sellers agreed to her suggestion and made no objection. These facts simply do not support a claim that Nannie breached a duty of loyalty to the sellers.
The plaintiffs also assert that Nannie pressured Attorney Lake to accept the McNiff offer. Lake did testify that he felt pressured because of the time limits involved. However, there are no facts to support an inference that Nannie exerted pressure on the sellers to accept the McNiff offer over the Bisner offer by placing time limits on the offer.
The record reflects that the sellers, who were leaving for vacation the next day, wanted the decision made on November 5. Furthermore, the McNiff offer, which contained a deadline of 12:00 P. M. on November 5, was extended to 3:00 P. M. to enable the sellers to consider other offers, including one from the Bisners. There is no evidence that Lake, who was charged with negotiating the competing offers, made any effort to secure a further extension of time from McNiff.
3. Claims against Olivia. Olivia gave Baker all of the information known to her in order to allow the Bisners to decide whether they wanted to modify their offer. In addition to their morning discussions, in the early afternoon, when Baker asked for the sellers' statement, Olivia referred her to Nannie who e-mailed it to Baker within five minutes. While it is true that Olivia inadvertently was unavailable between approximately 1:20 and 3:30 P. M., it has not been shown that her unavailability caused the sellers any damage.
Baker's notes reflect that she was trying to contact Olivia to find out the deadline for additional offers; however, her notes do not indicate she had a modified offer to submit. There is no indication in the record that either Lake or the sellers had communicated to anyone that a definitive deadline for offers existed or that anyone had shared with Olivia that the McNiff offer would lapse at 3:00 P. M. On the state of the record it is sheer speculation that Olivia was in a position to expand on the information she had communicated earlier, i.e., that the sellers wanted to make a decision that day.
Although Baker contends that her clients had decided at some point during the day to increase their offer to $525,000 and to remove all contingencies, even when she reached Lake after 3:30 P. M., she had no written offer to submit on behalf of the Bisners. In short, even assuming for the sake of argument that Olivia's inadvertent failure to be available by cellular telephone constituted a breach of duty, the facts of record do not permit the conclusion that the Bisners were unable to submit a modified offer because of anything Olivia did or did not do.
D. Attorney's fees. The defendants request attorney's fees pursuant to G. L. c. 231, § 6F, claiming that the appeal is frivolous. See Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984) (appeal is frivolous when the law is well settled and there can be no reasonable expectation of reversal). 'While we consider the [plaintiffs'] arguments to be unpersuasive, we do not consider them frivolous.' Shahzade v. C.J. Mabardy, Inc., 411 Mass. 788, 797 n.8 (1992). The defendants' motion is denied.
Order dismissing appeal reversed.
Judgment affirmed.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),