Parker v. Byrne
| Decision Date | 16 June 2010 |
| Docket Number | No. 2009-162-Appeal.,2009-162-Appeal. |
| Citation | 996 A.2d 627 |
| Parties | Clare A. PARKER et al.v.Marsha N. BYRNE et al. |
| Court | Rhode Island Supreme Court |
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Ronald M. LaRocca, Esq., Providence, for Plaintiff.
Thomas More Dickinson, Esq., for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.
This case arises from the unsuccessful sale of two adjacent pieces of property in North Kingstown, Rhode Island. The plaintiffs, Clare A. Parker and Constance A. Emry, appeal from the Superior Court's grant of summary judgment in favor of the defendants, Marsha N. Byrne and Robin B. Corsi. The plaintiffs contend that summary judgment was improperly granted in favor of the defendants because genuine issues of material fact are in dispute. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The plaintiffs, two sisters, owned two parcels of land in North Kingstown, Rhode Island. The plaintiffs owned 44 Church Lane (lot No. 68), which was improved with a single-family home, as tenants in common for approximately two decades. One of the sisters, Ms. Parker, also held title in her name alone to a lot on Fowler Street (lot No. 275). Lot No. 275 abutted lot No. 68 and was landlocked and unimproved.
On June 25, 2005, plaintiffs entered into two purchase-and-sales agreements (the agreements) with defendants for lot Nos. 68 and 275 (collectively the properties).1 The agreement for the sale of lot No. 68 was between plaintiffs, Ms. Parker and Ms. Emry, and defendant Ms. Byrne. The agreement for the sale of lot No. 275 was between plaintiff Ms. Parker and defendants, Ms. Byrne and Ms. Corsi. The agreements were contingent upon each other and contained provisions requiring plaintiffs to deliver “good, clear, insurable, and marketable title * * * except easements, restrictions of record and municipal regulations, if any.” Both agreements also stated that “all notices * * * shall be in writing.” The closing was scheduled for August 23, 2005 at 10 a.m.; and, upon the execution of the agreements, defendants remitted a total deposit of $28,740 to plaintiffs.
Ms. Byrne testified in her deposition that at some point, around the beginning of July 2005, she asked Linda Butcher, plaintiffs' real estate agent, whether another person who had bid on the properties would be interested in being assigned defendants' rights under the agreements. She explained that she was apprehensive about moving to a new place and was having some difficulty adjusting to a recent loss of eyesight. According to Ms. Byrne, Ms. Butcher informed her that the assignment would not be possible because the other bidder had several different contingencies in his or her contract. Ms. Butcher provided a similar account of these conversations in her affidavit and deposition. Ms. Butcher further testified that, after Ms. Byrne asked her to contact the other bidder, Ms. Byrne expressed concern that it would be difficult for her to purchase the properties because she had encountered construction problems with a house she owned in Jamestown.
John McCloskey, defendants' title attorney, requested and received a zoning certificate from the Town of North Kingstown (the town) dated August 5, 2005. The zoning certificate stated that lot Nos. 68 and 275 were “considered combined and [could not] be sold separately.” It further stated that the certificate was being supplied in accordance with G.L.1956 § 45-24-54, but that “zoning is a matter of interpretation,” and it expressly disclaimed any “guarantee or warrant [of] the accuracy of the information contained” in it.
At some point after receiving the certificate, Mr. McCloskey called Ms. Butcher, made her aware of the certificate, and informed her that it might not be correct but that he would investigate the situation. According to his deposition testimony, the zoning certificate surprised him because it was his understanding that merger generally is based on the common ownership of properties, and these properties were not commonly owned. He stated that he then contacted KarenLu LaPolice, an employee of the town's planning department. Mr. McCloskey reported that Ms. LaPolice informed him that lot No. 275 was the subject of an illegal subdivision in the 1950s or the 1960s, the properties had merged, and the lots could not be sold separately.
Mr. McCloskey, according to his deposition, then spoke to the town solicitor. He stated that the solicitor intimated that the town would require the unmerging of the lots and warned that the town could undertake enforcement. According to Mr. McCloskey, the solicitor essentially said that pursuing the issue further would be opening a “can of worms.” He also recounted that, at that time, the solicitor was unwilling to acknowledge that Ms. LaPolice may have been wrong.
After speaking to the solicitor, Mr. McCloskey told Ms. Butcher that defendants did not wish to close on the properties because the town solicitor had taken the position that the properties were merged. Mr. McCloskey told her that he could not resolve the matter himself. According to Ms. Butcher, this communication occurred sometime between August 17 and August 22, 2005.
Mr. McCloskey testified at his deposition that defendants had been willing and anxious to purchase the property once it could be purchased according to the agreements and that defendants had called him repeatedly to ask about rescheduling the closing date. He further stated that he had decided not to schedule a closing in light of the town's position that the lots could not be sold separately, because to do so would have exposed the buyers to the risk of fines and additional expense. “At the very least,” he said, “it would have put [Ms. Byrne in] a position to * * * contend with the town as to whether or not there was a violation.”
According to Mr. McCloskey, neither plaintiffs nor their real estate agent were provided written notice of the outstanding zoning issues. Ms. Parker, however, acknowledged at her deposition that, prior to the scheduled closing date, she had been made aware of the zoning-certificate issue.
The closing did not occur as scheduled on August 23, 2005. Shortly thereafter, on September 13, 2005, lot No. 68 was sold at a foreclosure auction. Because of the contingent nature of the agreements, Ms. Parker was thus precluded from conveying lot No. 275. All parties now agree that the zoning certificate erroneously represented that the two lots had merged.
On November 14, 2005, plaintiffs filed a complaint against defendants alleging breach of contract, fraud, and tortious interference with contractual and prospective contractual relations. The defendants filed an answer and counterclaimed on January 6, 2006, alleging breach of contract, negligent misrepresentation, and intentional misrepresentation/fraud. The defendants filed a motion for summary judgment on April 18, 2006, which a hearing justice denied on June 20, 2006.
On June 14, 2007, defendants filed a second motion for summary judgment and an alternate motion for partial summary judgment, and, in response, plaintiffs filed a motion in opposition and a cross-motion for summary judgment. On November 28, 2007, an order was entered granting defendants' motion for summary judgment and denying plaintiffs' cross-motion for summary judgment. Subsequently, plaintiffs and defendants agreed to a consent judgment granting summary judgment in favor of defendants on all counts.2 The plaintiffs filed a timely notice of appeal.
The plaintiffs contend on appeal that the hearing justice erred in granting summary judgment in favor of defendants because issues of material fact remain as to who breached the agreements and whether defendants misrepresented their reason for not performing under the agreements. Further, plaintiffs assert that the hearing justice erred by holding as a matter of law that the properties' titles were unmarketable to a “reasonable buyer.” The plaintiffs also argue that an issue of fact exists as to whether the zoning certificate rendered the title unmarketable. Furthermore, plaintiffs contend that, because the zoning certificate did not render the title unmarketable, the determination of who breached the contract is a material issue of fact.
The defendants maintain that the hearing justice did not err in granting summary judgment in their favor. The defendants assert that they did not perform under the agreements because first, the zoning certificate led them to believe there was a defect in the titles and then second, the properties became unavailable once lot No. 68 was lost to foreclosure. The defendants specifically assert that plaintiffs had an obligation to deliver good and marketable title and that no reasonable buyer would have closed on the properties, given the circumstances. Furthermore, defendants argue that, because there was no “time-is-of-the-essence” clause in the agreements, the matters could have been resolved, and a new closing could have been arranged within a reasonable time, had the properties not fallen into foreclosure. According to defendants, plaintiffs thus failed to show that they were ready, willing, and able to perform within a reasonable time after the scheduled closing date.
It is well settled that this Court reviews a hearing justice's grant of summary judgment de novo. Credit Union Central Falls v. Groff, 966 A.2d 1262, 1267 (R.I.2009). Such a decision will be upheld only if “after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Id. (quoting Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 638 (R.I.2005)). “Moreover, the party opposing a summary-judgment motion ‘has the burden of proving by competent evidence the existence of a disputed issue of...
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