Coviello v. Richardson

• Decision Date: 15 April 2010
• Docket Number: No. 09-P-568.,09-P-568.
• Citation: 76 Mass.App.Ct. 603,924 N.E.2d 761
• Parties: Lisa COVIELLOv.Patricia K. RICHARDSON.
• Court: Appeals Court of Massachusetts

76 Mass.App.Ct. 603

924 N.E.2d 761

Lisa COVIELLOv.Patricia K. RICHARDSON.

No. 09-P-568.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 15, 2010.

Decided April 15, 2010.

Jonathon D. Friedmann, Boston (Robert E. Curtis, Jr., with him), for the defendant.

Barry L. Finkel, Natick, for the plaintiff.

Present: LENK, KANTROWITZ, & VUONO, JJ.

KANTROWITZ, J.

On November 12, 2008, a Land Court judge granted summary judgment to buyer Lisa Coviello on her breach of contract claim against seller Patricia Richardson stemming from a written offer to purchase real estate (OTP) and a related purchase and sale agreement (P&S).

On appeal, Richardson argues that there are genuine issues of material fact with regard to (1) whether she refused to sign the P&S on its original terms, and (2) whether Coviello was ready, willing, and able to perform her obligations under the original P&S at the time of the purported breach. Given that a genuine issue of material fact exists, we reverse.

Facts. “On an appeal from a summary judgment, we recount the facts in the summary judgment materials in the light most favorable to the nonmovant, drawing all permissible inferences and resolving any disputes or conflicts in [her] favor.” DiPietro v. Sipex Corp., 69 Mass.App.Ct. 29, 30, 865 N.E.2d 1190 (2007).

On February 12, 2008, Richardson signed the OTP submitted by Coviello for Richardson's condominium unit. The OTP required the parties to execute a standard form P&S by 5:00 p.m. on February 26, 2008. The OTP contained several contingency clauses, including a “time is of the essence” clause and a mortgage contingency clause, which established February 13, 2008, as the deadline for the mortgage application submission, and February 29, 2008, as the deadline for the mortgage commitment. The OTP also required payment of a $12,500 deposit due upon execution of the P&S on February 26, 2008.

On or about February 19, 2008, Coviello's representatives began discussing concerns about securing financing to meet the February 29, 2008, mortgage commitment date in the OTP, and Coviello's broker, Jennifer Johnson, asked Coviello's attorney, Scott Kriss, to change the mortgage commitment date from February 29, 2008, to March 7, 2008. This request was not immediately conveyed to Richardson.

On February 21, 2008, Richardson submitted a draft P&S to Coviello reflecting the dates specified in the OTP, including the February 26, 2008, signing deadline and the February 29, 2008, mortgage commitment date. At 3:03 p.m. on February 25, 2008, Kriss contacted Richardson's attorney by electronic mail (e-mail) with the proposed change to the mortgage commitment date, from February 29 to March 7.

In response to the e-mail, Richardson's attorney, Alan Sharaf, telephoned Kriss to inform him that Richardson was neither willing nor obligated to agree to a revised date. Beyond his rejection of the change to the mortgage commitment date, it is unclear in the record exactly what Sharaf told Kriss during the telephone call. Sharaf's affidavit states that he “informed [Kriss] that Richardson rejected Coviello's request to change the mortgage commitment date in the OTP and that Richardson would not be executing a [P&S] regarding the Property with the new proposed mortgage commitment deadline ” (emphasis added). Sharaf further stated he “explained to Kriss that my client considered the requested change a new offer or a counter offer thus voiding the OTP and that my client was not obligated to accept a material change to a term in the OTP.”

Sharaf also stated that, during the telephone call, he told Kriss that “Richardson was unwilling to re-negotiate the OTP” (emphasis added), because she “was pregnant and required a stress free transaction with certainty so she could find a new place to live within a definite, firm and known time frame.” Sharaf further stated that Kriss never informed him “that Coviello would sign a [P&S] with a February 29, 2008, mortgage commit[ment] date,” and that “Kriss acknowledged that the OTP was due to expire after 5:00 [p.m.] on February 26, 2008.”

Coviello's depiction of what transpired during the call paints a different picture. In her answers to Richardson's interrogatories, Coviello stated that Sharaf told Kriss that Richardson “was backing out of the agreement due to a concern about finding new housing coupled with her being pregnant.” At his deposition, when questioned about his conversation with Coviello regarding the ramifications of what had happened, Kriss testified that “I think it was made very clear to us that the seller didn't wish to proceed,” and “in my practice ... when the seller tells us that it is not proceeding, we talk about the options with the buyer and take it from there.” He also gave the following characterization of the deal: “It was common knowledge between ... us that [the OTP] had expired at that point or was about to expire whenever these conversations took place or had expired the day before.”

Richardson's answers to Coviello's interrogatories further muddy the waters. Richardson responded to an interrogatory asking why she “did not actively seek to sell the condo unit ... after February 25, 2008,” by stating: “Due to the pending birth of Richardson's first child (which was diagnosed as a ‘high risk pregnancy’ requiring bed rest) Richardson decided to reside in the condominium unit and forgo selling the condominium unit for the foreseeable future.” Richardson also acknowledged that her pregnancy was first diagnosed as “high risk” on or about February 19. She further responded to the question of when she first decided “to reside in the condominium unit and forgo the selling of the condominium unit for the foreseeable future,” by stating that “sometime after 3:03^[1] P.M. on February 25, 2008, Richardson no longer believed she was bound by the OTP and decided to reside in the condominium unit and forgo selling the condominium unit to the Plaintiff or any other third party for the foreseeable future” (emphasis added). She also responded that she first determined that she was “no longer bound” by the terms of the OTP “[s]ometime after 3:03 [p.m.] on February 25, 2008.”

Richardson's answer and her responses to Coviello's requests for admissions and interrogatories generally highlight her belief that Coviello's request to change the mortgage contingency date was a new offer or counter offer, with which she was not required to agree. Nonetheless, these assertions were repeatedly paired with her alternate theory that the OTP terminated by its own terms, suggesting the possibility that she would have accepted a signed version of the original P&S tendered prior to the expiration of the OTP.² As of 5:00 p.m. on February 26, neither party had signed the P&S, as was required by the OTP.

Approximately one month later, on March 28, Coviello filed suit in the Land Court. Ultimately, both parties moved for summary judgment,³ with Coviello asserting that Richardson breached the contract by refusing to sign the P&S, and Richardson asserting that Coviello's request to change the mortgage commitment date was a new offer or a withdrawal of the original OTP, and regardless, the OTP expired by its terms when both parties failed to enter into a P&S on or before the February 26, 2008, deadline.

On November 12, 2008, the Land Court judge granted Coviello's motion for summary judgment and denied Richardson's motion, awarding Coviello specific performance under the terms of the OTP based on Richardson's breach. In doing so, the judge concluded that Coviello's request to change the mortgage commitment date did not “constitute a breach and a new offer.” He further concluded that the expiration of the deadline at 5:01 p.m. on February 26, 2008, did not void the agreement because “[o]nce [Richardson] told [Coviello] that she had no intention of signing the P&S due to her opinion that [Coviello] was in breach, [Coviello] was relieved of any duty to sign the document.”

In reaching this conclusion, the judge characterized the telephone call between Sharaf and Kriss as follows: “Sharaf informed Kriss that [Richardson] had rejected [Coviello's] request to change the mortgage commitment date in the OTP and further stated that [Richardson] would not execute the P&S for the property because she viewed the request as a counter-offer, which voided the original OTP.” The judge also specified that Richardson breached “when she made the poorly informed decision that [Coviello] had breached and refused to move forward with the signing,” and that Richardson “chose not to go forward, as required by the valid and binding OTP.”

Standard of review. “[T]he standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Siebe, Inc. v. Louis M. Gerson Co., 74 Mass.App.Ct. 544, 548, 908 N.E.2d 819 (2009), quoting from Nelson v. Salem State College, 446 Mass. 525, 530, 845 N.E.2d 338 (2006). “Our review is de novo.” Id. at 549, 908 N.E.2d 819.

“In deciding a motion for summary judgment, a court does not resolve issues of material fact, assess credibility, or weigh evidence.” LaBrecque v. Parsons, 74 Mass.App.Ct. 766, 768, 910 N.E.2d 947 (2009), quoting from J.F. v. J.F., 72 Mass.App.Ct. 782, 790, 894 N.E.2d 617 (2008). “Rule 56(c) provides that summary judgment shall be granted if the ‘pleadings, depositions, answers to interrogatories, and responses to requests for admission under [Mass.R.Civ.P. 36, 365 Mass. 795 (1974) ], together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Bardige v. Performance Specialists, Inc., 74 Mass.App.Ct. 99, 102, 904 N.E.2d 464 (2009).

Discussion. The judge below summarized the case as follows: “Since the OTP was undisputedly a contract binding...