Normandin v. Eastland Partners, Inc., No. 05-P-910.

• Court: Appeals Court of Massachusetts
• Writing for the Court: Perretta
• Citation: 862 N.E.2d 402,68 Mass. App. Ct. 377
• Docket Number: No. 05-P-910.
• Decision Date: 06 March 2007
• Parties: David W. NORMANDIN & others<SMALL><SUP>1</SUP></SMALL> v. EASTLAND PARTNERS, INC., & others.<SMALL><SUP>2</SUP></SMALL&gt

862 N.E.2d 402 68 Mass. App. Ct. 377 David W. NORMANDIN & others¹
v.
EASTLAND PARTNERS, INC., & others.² No. 05-P-910. Appeals Court of Massachusetts. Worcester. Argued March 16, 2006. Decided March 6, 2007.

[862 N.E.2d 406]

Christopher A. Kenney, Boston, for Hopedale Development, Inc.

Evan T. Lawson, Boston (Marissa A. Goldberg with him) for the plaintiffs.

F. Alex Parra for Eastland Partners, Inc. & another.

Present: PERRETTA, BROWN, & KAFKER, JJ.

PERRETTA, J.

68 Mass. App. Ct. 378

These cross appeals by the plaintiffs and Hopedale Development, Inc. (Hopedale), involve land swap agreements between the plaintiffs and Hopedale as well as Hopedale's contract to convey the same land to Eastland Partners, Inc. (Eastland). On the plaintiffs' complaint for specific performance, the judge concluded that Eastland had no obligation to honor Hopedale's land swap agreements with the plaintiffs and ordered Hopedale to attempt to buy back the land from Eastland and perform its agreements with the plaintiffs or pay them damages in an amount that would either enable them to buy the land from Eastland or compensate them for its breach of their land swap agreements. We reverse that portion of the judgment pertaining to the amount of money damages potentially due the plaintiffs and remand the matter for recalculation of the amount of any such payment.

1. The facts. We summarize the facts relevant to these cross appeals as they are set out in the judge's memorandum of decision and order on cross motions for summary judgment, dated September 16, 2002, and his findings of fact and rulings of law of March 11, 2005, made in explanation of his order for judgment, as supplemented by undisputed facts contained in the record before us. In 1982, the Normandins and the Nuttings (the plaintiffs) purchased residential properties located at 61 and 65

68 Mass. App. Ct. 379

Mill Street, respectively, from the defendant Hopedale. Their lots are configured in a "pork chop" shape, each with an impassable narrow and elongated strip of land at its easterly end, the terminus of which provide the lots with the requisite frontage on a public way sufficient to comply with zoning requirements. Access from their respective properties to a public road was by way of a deeded easement from Hopedale over its property.

In 1996, the plaintiffs learned that Hopedale had filed a plan seeking to subdivide the land directly adjacent to theirs, including the land that contained the easement. The easement would extinguish when the subdivision was built.³ As laid out on the proposed subdivision plan, the border of the plaintiffs' land was separated from a proposed roadway by a strip of

862 N.E.2d 407

land about three feet in width effectively extinguishing their access to their property.

At some time during the pendency of the proceedings before the planning board for the town of Hopedale, the plaintiffs discussed with Hopedale the possibility of a land swap: the plaintiffs would convey the easterly portions of their properties to Hopedale in exchange for two of the subdivision lots, the Nuttings receiving lot 46 and the Normandins lot 50. The judge described this contemplated exchange as providing the plaintiffs with a more desirable lot configuration and "actual, more proximate, practical and convenient access to the proposed subdivision road," and Hopedale with the opportunity to reconfigure the subdivision to create additional building lots.

Hopedale's subdivision plan was approved on May 7, 1997. A little over six months later, on November 17, 1997, Hopedale and Eastland entered into a purchase and sale agreement for 141 of the subdivision lots for $2,000,000. Lots 46 and 50 were among the lots committed for sale. Paragraph 32B of the purchase and sale agreement reads:

"[Hopedale] has negotiated with Nutting [and] Normandin ... for exchanges of land, and if those exchanges of land are consummated, the net result will be additional buildable

68 Mass. App. Ct. 380

lots on the existing subdivision roads. None of those transactions can be consummated, however, until post-closing because each requires the conveyance of lots on the subdivision plan, and cannot be done until the covenant is released.[⁴] [Hopedale] will endeavor to enter into Purchase and Sale Agreements with Nutting [and] Normandin . . . prior to January 30, 1998, which agreements must be approved by [Eastland] (and approval shall not be unreasonably withheld or delayed). . . . At the time of the closing, these agreements will be assigned to [Eastland], . . . and [Eastland] ... [will agree] to abide by the terms thereof. Upon the consummation of each such transaction, [Eastland] shall pay [Hopedale] $14,285.00 for each additional net buildable lot. . . . The provisions of this paragraph shall be limited to Purchase and Sale Agreements entered into prior to January 30, 1998." (Emphasis supplied).

The closing date was set for January 30, 1998.

Although the purchase and sale agreement was amended in writing several times for purposes, inter alia, of extending the closing date and increasing the purchase price, none of the amendments referred to the land swap agreements or otherwise purported to amend paragraph 32B. Rather, all amendments "ratified and confirmed" all the provisions of the agreement not expressly dealt with in the amendments. After signing the purchase and sale agreement, discussions concerning the land swap continued between Hopedale and Eastland. Eastland was not without reservations about Hopedale's proposed exchange and had concerns about

862 N.E.2d 408

whether the newly created lots would be buildable.

On April 1, 1998, Hopedale formalized its understanding with the plaintiffs and entered into land swap agreements with

68 Mass. App. Ct. 381

them. It did so without informing them of its pending sale to Eastland. Pursuant to the land swap agreements, Hopedale was to convey lots 46 and 50 to the Nuttings and Normandins, respectively, in exchange for easterly portions of their properties identified on a plan attached to each agreement and hereinafter referred to as the "Mill Street properties." The agreements provided that Hopedale would not convey title to the lots to the plaintiffs until "the Planning Board Covenant is released," see note 4, supra, which, in turn, was not to occur before there was substantial completion of the road abutting lots 46 and 50. The plaintiffs were to be notified by certified letter that the covenant had been released with the transfer of title to lots 46 and 50 occurring ten business days after the date of the letter.

Hopedale's attorney forwarded copies of the agreements to Eastland under a cover letter dated April 10, 1998. Counsel for Eastland replied that she would forward the agreements to Eastland and also advised Hopedale's attorney of her understanding that "any agreements with [the plaintiffs] needed to be entered into on or before January 30, 1998," the closing date originally set out in the purchase and sale agreement between Hopedale and Eastland.

At the closing with Hopedale on June 1, 1998, Eastland took the position that it was not bound by Hopedale's agreement with the plaintiffs but agreed to "attempt in good faith to work something out" with them. However, neither Hopedale nor Eastland informed the plaintiffs of Hopedale's conveyance to Eastland. Rather, the plaintiffs apparently learned of the conveyance in late 1999, when Eastland began clearing the land in the vicinity of their properties. Eastland refused to perform any land swap with the plaintiffs pursuant to their agreements with Hopedale and, instead, attempted to negotiate different agreements with the plaintiffs. As best we can tell, it no longer appears possible to reconfigure the subdivision lots in the manner contemplated by Hopedale for the reason that Eastland has conveyed some of the lots that were to have been involved in the land swap.⁵

On January 19, 2000, the plaintiffs brought the present action

68 Mass. App. Ct. 382

against Hopedale and Eastland alleging that Hopedale was in breach of the land swap agreements and that Eastland was obligated to carry out the exchange negotiated by Hopedale.⁶

2. The Superior Court proceedings. Acting on the parties' cross motions for summary judgment, the judge concluded that Hopedale was in breach of the land swap agreements and that Eastland had no obligation to carry out the exchanges contemplated under those agreements.

862 N.E.2d 409

The issue of damages for Hopedale's breach of contract was tried on November 19, 2004, and a final judgment was entered on March 17, 2005.

As provided in paragraphs four, five, and six of the final judgment, Hopedale is to attempt to repurchase lots 46 and 50 from Eastland and, if successful, convey them to the plaintiffs who are then to convey to Hopedale those portions of the Mill Street properties as set out in the land swap agreements. In the event Eastland or the current owner or owners of the subdivision lots in question will not sell the lots to Hopedale or demand a price above market value, Hopedale is then to pay $150,000 to the Normandins and $150,000 to the Nuttings so that they themselves might attempt to purchase the lots.⁷ Should the plaintiffs be able to acquire the lots from the current owner they must then convey those portions of their Mill Street properties to Hopedale in accordance with the land swap agreements. There is, however, nothing in the judgment which provides for an adjustment in the damage award for the value of that portion

68 Mass. App. Ct. 383

of their lots that the plaintiffs are ordered to transfer upon the conveyance of lots 46 and 50 of the subdivision.⁸,⁹

3. The issues. On these cross appeals, the plaintiffs argue that the judge was in error in denying their motions for summary judgment against Eastland and allowing Eastland's cross motion. They advance numerous theories in support of their claim that Eastland was obligated to...