DECICCO v. 180 GRANT STREET LLC (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On September 22, 2017, Jack and Sandra DeCicco, the plaintiffs, filed suit for breach of contract, breach of the implied covenant of good faith and fair dealing, misrepresentation, and specific performance, against the defendant, 180 Grant Street, LLC. A judge approved the plaintiffs' application for a memorandum of lis pendens on October 4, 2017. On April 17, 2018, a judge allowed the defendant's special motion to dismiss the plaintiffs' complaint pursuant to G. L. c. 184, § 15 (c), of the lis pendens statute. The judge also ordered the plaintiffs to pay the defendant's attorney's fees and costs. The lis pendens on the property subject to this suit remains on record at the Middlesex County registry of deeds pending the disposition of this appeal. On appeal, under G. L. c. 231, § 118, the plaintiffs claim that the judge erred in allowing the defendant's special motion to dismiss because their complaint is not frivolous, as defined in G. L. c. 184, § 15 (c), and that there was ample factual and legal support for their claims. We affirm.

1. Special motion to dismiss. The plaintiffs claim that the judge erred in dismissing their complaint, as the complaint sets out cognizable claims, firmly grounded in facts supported by the verified complaint with its attachments. We disagree.

“Under G. L. c. 184, § 15 (c), a party who believes that a claimant's action or claim supporting a lis pendens is frivolous may file a special motion to dismiss.” Faneuil Investors Group, Ltd. Partnership v. Selectmen of Dennis, 458 Mass. 1, 2 n.2 (2010). The statute provides that a special motion to dismiss “shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds.” G. L. c. 184, § 15 (c). See McMann v. McGowan, 71 Mass. App. Ct. 513, 519 (2008). Here, the judge allowed the motion under the first provision. We review an order allowing a special motion to dismiss for an error of law or abuse of discretion in applying the standards of G. L. c. 184, § 15 (c). See id.

“In ruling on the special motion to dismiss the court shall consider verified pleadings and affidavits, if any, meeting the requirements of the Massachusetts rules of civil procedure.” G. L. c. 184, § 15 (c). Here, the materials properly considered by the judge were the plaintiffs' verified complaint and the three affidavits the defendant submitted, along with the attached documents containing communications between the parties.³ The parties had a signed offer to purchase and an “offer summary” sheet, which stated that the plaintiffs' offer price of $ 2.26 million for the property was “subject to delivery of home in move-in condition as advertised, subject to Buyer review and approval of the following.” The judge highlighted that the list that followed included “phrases such as 'subject to Buyer review and approval'; 'as advertised'; 'as discussed'; and 'location to be determined.'”

There was no support in the record before the judge that the parties had a mutual understanding of the full list of items in the offer summary or the meaning of the equivocal phrases that were attached to many of the items listed. The plaintiffs' verified complaint asserted that the offer summary “contained additional items requested by the plaintiffs/buyers that were not part of the property's advertised condition” (emphasis added). The affidavit of Daus-Haberle also suggests that the defendant did not believe there was an agreement reached on the details of the additional work requested and that there were continued discussions regarding the offer summary, such as what work would be done, who would bear what costs, and even additional work that the plaintiffs requested during the period after the offer summary was originally executed. Even though it is well established that some countersigned offers to purchase real estate can constitute a valid enforceable contract, the intent of the parties to be bound is the controlling fact. See McCarthy v. Tobin, 429 Mass. 84, 87 (1999). Unlike in McCarthy, here the plaintiffs' offer summary, and conduct subsequent to the signing of the offer to purchase, shows there was no intention to be bound.

The plaintiffs appear to claim that the judge erred in considering the parties' postcomplaint communications, which they characterize as inadmissible settlement negotiations. We disagree. The postcomplaint negotiations were conduct subsequent to executing an offer to purchase, and the negotiations may be relevant in determining whether the party intended to be bound by the offer to purchase. See Germagian v. Berrini, 60 Mass. App. Ct. 456, 460 (2004) (after signing offer to purchase “the plaintiff's conduct demonstrates that he did not intend that the offer be a binding contract -- only the signed purchase and sale agreement would fill that role”). The judge persuasively explained that the continuing discussions between the parties were admissible to “show: i) the breadth of details left open by the cursory listing of items on the Offer Summary; ii) that nearly each item on the list required further detail to establish meaning; and iii) that significant value attached to many of the items listed in the Offer Summary.” We should not “substitute our judgment for that of the trial court where the records disclose reasoned support for its action.” Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 82 (2005), quoting Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 26 (1981).

In all, the record before the judge lacked reasonable factual support that the offer to purchase and offer summary reflected the parties' memorialization of a definitive agreement and an intention to be bound. Rather, the record reflected that the offer summary was a list of items and work, which included requests that would require further discussion and agreement in order to create a binding and enforceable contract. The judge correctly dismissed the plaintiffs' claims.⁴ See G. L. c. 184, § 15 (c).

2. Attorney's fees. The defendant requests appellate attorney's fees and costs, pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). Although we affirm the judgment, “[u]npersuasive arguments do not necessarily render an appeal frivolous.” Avery v. Steele, 414 Mass. 450, 455 (1993).⁵ The defendant's statutory award of attorney's fees and costs related to the special motion to dismiss below was appropriate. See G. L. c. 184, § 15 (c) (“If the court allows the special motion to dismiss, it shall award the moving party costs and reasonable attorney fees”). On appeal, however, we exercise our discretion to deny the defendant's request for attorney's fees and costs.

Judgment affirmed.

FOOTNOTES

3.   The affidavits considered were one by Peter Daus-Haberle, the defendant's general manager, and two by James M. Lyles, the defendant's real estate attorney. The plaintiffs did not submit any affidavits or other evidence; instead they relied on their verified complaint and its attachments. For the first time on appeal, the plaintiffs appear to challenge the adequacy of the affidavits that were considered by the judge. This issue was neither raised below nor raised in the argument section of their brief, and we therefore treat it as waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1630 (2019). See also Weiler v. PortfolioScope, Inc., 469 Mass. 75, 86 (2014).

4.   We agree with the judge that the plaintiffs' misrepresentation claim is appropriately dismissed because though it sounds in tort it is inextricably linked to the plaintiffs' breach of contract allegation and therefore it is subject to dismissal pursuant to G. L. c. 184, § 15 (c).

5.   “Frivolous” is defined differently in Avery, 414 Mass. at 455, than it is in G. L. c. 184, § 15 (c).