KEVIN BRIEN v. DONALD ZUBE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kevin O'Brien, brought this action against the defendants, Frances Nabydowski and Richard Nabydowski (collectively, the Nabydowskis),² asserting claims for breach of contract, promissory estoppel, breach of the covenant of good faith and fair dealing, and declaratory judgment. Following the deaths of both the Nabydowskis, the personal representative of Frances's estate, Donald Zube, was substituted as the party defendant. Zube moved for summary judgment on all counts, which the motion judge granted. On appeal, O'Brien argues, among other things, that the motion judge erred in concluding that the agreement between O'Brien and the Nabydowskis was too indefinite to constitute an enforceable contract. We affirm.

Background. “We summarize the undisputed facts drawn from the summary judgment record; to the extent the record includes disputed evidence, we consider that evidence in the light most favorable to” the nonmoving party. Cesso v. Todd, 92 Mass. App. Ct. 131, 132 (2017).

In 2012, O'Brien approached the Nabydowskis about purchasing a twenty-six-acre plot of land in Andover (the property) that the Nabydowskis owned as joint tenants. The property was adjacent to the Nabydowskis’ home, and it had previously been used as a pig farm. Over the next ten years, O'Brien and the Nabydowskis engaged in various discussions about O'Brien potentially purchasing the property.

On October 4, 2021, O'Brien and Frances signed a document titled “Terms of Agreement” (TOA), which was drafted by O'Brien and based on terms that he and the Nabydowskis had discussed during prior negotiations. The TOA stated, among other things, that O'Brien would purchase the property for $1.2 million, pay the outstanding taxes on the property, pay each of the Nabydowskis a $5,000 nonrefundable deposit upon the signing of the TOA, and conduct some cleanup work on the property. The TOA did not contain a specific date for performance. Instead, it stated the following:

“You allow me 6 months for the Conservation work to be approved effective from the date this agreement is signed.

“You allow me an additional 6 months to go to the town for approval of a minimum of 3 Lots. You will grant me any extensions that I request.”

Richard subsequently provided his attorney with a copy of the TOA, and he began drafting a purchase and sales agreement based on the terms of the TOA, which at that point had been signed only by Frances.

On October 21, 2021, O'Brien and the Nabydowskis met at the Nabydowskis’ home, and Richard signed the TOA. At that meeting, O'Brien stated that he would deliver the $5,000 deposit checks to the Nabydowskis the following week, to which neither of the Nabydowskis objected. But when O'Brien attempted to deliver the deposit checks to the Nabydowskis six days later, the Nabydowskis refused to accept the checks and asserted that they would not be selling the property. No purchase and sale agreement was ever signed.

O'Brien brought this action against the Nabydowskis on December 14, 2021, seeking specific performance of the TOA. Richard died on March 1, 2022, and his interest passed by operation of law to Frances. See G. L. c. 184, § 7. Frances died on May 31, 2023. Zube was substituted as the party defendant and moved for summary judgment, which was granted. This appeal followed.

Discussion. We review a decision on a motion for summary judgment de novo. See McCarthy v. Young, 105 Mass. App. Ct. 203, 207 (2025). “Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Sutton v. Jordan's Furniture, Inc., 493 Mass. 728, 735 (2024), quoting Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 330 (2021).

“Any promise involving real property is enforceable only if that promise meets the requirements of the Statute of Frauds ․” Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 709 (1992). See G. L. c. 259, § 1. “[I]n order for a writing to satisfy the Statute of Frauds it must contain directly, or by implication, all of the essential terms of the parties’ agreement.” Simon v. Simon, 35 Mass. App. Ct. 705, 709 (1994). In general, the material terms of a contract for the sale of land are (1) the description of the property to be sold and (2) the purchase price. See McCarthy v. Tobin, 429 Mass. 84, 86 (1999). Any remaining terms are “subsidiary matters which [do] not preclude the formation of a binding contract.” Id.

Here, to the extent the motion judge concluded that the TOA needed to contain a closing date or procedure for determining a closing date in order to be enforceable, we disagree. “[W]hen an agreement for the sale of land does not state the time for performance, a reasonable time will be implied.” Simon, 35 Mass. App. Ct. at 710. See Cousbelis v. Alexander, 315 Mass. 729, 731 (1944) (in context of contract to purchase real property, “[a] time for performance need not be set forth. The law will imply a reasonable time”). But see Germagian v. Berrini, 60 Mass. App. Ct. 456, 460 (2004) (closing date deemed essential term where contract contained “clause stating that time was of the essence”).

Nevertheless, we agree with the motion judge that the TOA was too indefinite to be enforceable and therefore conclude that summary judgment was appropriate. The law cannot imply a reasonable time for performance where the TOA expressly stated that the Nabydowskis were required to grant O'Brien “any extensions that [he] request[ed].” See Balles v. Babcock Power Inc., 476 Mass. 565, 571-572 (2017) (“When contract language is unambiguous, it must be construed according to its plain meaning”). Construing the term “any” according to its plain meaning, the extension provision of the TOA provided that O'Brien was entitled to receive as many extensions as he requested and for whatever reason.³ In other words, this provision expressly disclaimed any reasonable time for performance that could be implied by the law.⁴

Moreover, O'Brien’s attempt to cure this defect by invoking the implied covenant of good faith and fair dealing is unavailing. First, the implied covenant only comes into play if there is a binding contract. See Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 288 (2007) (“scope of the covenant is only as broad as the contract that governs the particular relationship” [citation omitted]). Second, the implied covenant cannot contradict the terms of the contract. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 680 (2011). Here, O'Brien wrote in the TOA that he could have unlimited extensions of time; a court cannot ignore this express term and imply instead that he can have only reasonable extensions.

Without an ascertainable time for performance, the TOA is “too indefinite to create an enforceable contract.” Rodriguez v. Massachusetts Bay Transp. Auth., 92 Mass. App. Ct. 26, 29 (2017). See Simon, 35 Mass. App. Ct. at 711, quoting 4 Williston on Contracts § 575, at 77-78 (3d ed. 1961) (“Unless the writing, considered alone, expresses the essential terms with sufficient certainty to constitute an enforceable contract it fails to meet the demands of the [Statute of Frauds]”); Held v. Zamparelli, 13 Mass. App. Ct. 957, 959 (1982) (dismissal proper where “contract was too vague and indefinite to be enforceable”).⁵

Judgment affirmed.

FOOTNOTES

2.   Because the Nabydowskis share a last name, we refer to them by their first names.

3.   O'Brien adopted this interpretation during his deposition. When asked whether the Nabydowskis would have to grant O'Brien a given extension upon his request and whether there was no limit on the number of extensions he could request, O'Brien answered in the affirmative.

4.   We are unpersuaded by O'Brien’s argument that the motion judge erred by construing alleged ambiguities in the TOA against O'Brien because all reasonable inferences should have been drawn in O'Brien’s favor at the summary judgment stage. At summary judgment, we “take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party” (emphasis added; citation omitted). Cesso, 92 Mass. App. Ct. at 135. Here, there was no factual inference for the motion judge to draw because “[t]he determination of ambiguity in a contract is ․ a question of law.” Balles, 476 Mass. at 571.

5.   Because we conclude that the TOA was too indefinite to be enforceable, we need not address O'Brien’s argument that the motion judge failed to properly consider the parties’ intent to be bound. See Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010) (“An enforceable agreement requires [1] terms sufficiently complete and definite, and [2] a present intent of the parties at the time of formation to be bound by those terms”).Nor do we need to address O'Brien’s argument that the extension provision created an enforceable option contract that allowed O'Brien to close or not at his whim, even decades later, subject only to the rule against perpetuities, which was raised for the first time at oral argument. See Trustees of the Beechwood Village Condominium Trust v. USAlliance Fed. Credit Union, 95 Mass. App. Ct. 278, 287 n.20 (2019) (“Arguments raised for the first time at oral argument are waived”).