KIM L. FARBER v. LISA F. SHERMAN [Note 1]

HAND, P.J. Plaintiff-appellant Kim L. Farber (“Farber”) appeals the trial court’s dismissal of her complaint for breach of contract against defendant-appellee Lisa F. Sherman, personal representative of the estate of Farber’s mother, Star T. Waage (“Sherman”). For the reasons below, we vacate the judgment of dismissal.

This matter comes to us on Farber’s appeal pursuant to Rule 8A of the Dist./Mun. Cts. R. A. D. A. The court dismissed Farber’s complaint, pursuant to Mass. R. Civ. P. 12(b)(6), for failure to state a claim. We review the court’s ruling de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). It is well established that “[i]n reviewing the sufficiency of a complaint under rule 12(b)(6), ‘[the reviewing court] take[s] as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor. . . .” Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).’ Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004), quoting Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998).” Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). “To survive a Rule 12(b)(6) motion to dismiss for failure to state an actionable claim, a complaint must set forth ‘factual “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief.’ Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).” Lee v. Vander Linden, 2012 Mass. App. Div. 172, 173.

Here, the following facts are included in Farber’s verified complaint. Farber is one of two children of Star T. Waage (“Waage”); the other child is Farber’s brother, Jesse Roger Ling (“Ling”). Waage died in 2012, leaving a will in which she devised her home (“the property”) to her two children, Farber and Ling, in equal shares. At the time of his mother’s death, Ling was living in the property.

Waage’s will was admitted to probate by the Barnstable Probate and Family Court on June 4, 2014; on the same date, the court acting on its own initiative appointed Sherman to serve as the estate’s personal representative.

On May 9, 2014, Ling sued Farber in the Probate and Family Court. In the course of that litigation, and on Ling’s motion, the Probate and Family Court issued a temporary

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order granting Ling sole occupancy of the property. On January 13, 2015, the Probate and Family Court dismissed Ling’s claims. In its decision, the court continued the temporary order granting Ling sole occupancy, “but only until such time as the Personal Representative, Attorney Lisa F. Sherman, makes decisions or takes steps that may be contrary to those orders.” Farber then sought to have Sherman “recognize her rights as a tenant in common” with Ling, including an equal right to use and occupancy of the property.

On February 9, 2015, Sherman signed a purchase and sale agreement with Ling, and she petitioned the Probate and Family Court for a license to sell the property. Farber opposed Sherman’s petition, arguing that Sherman should instead conduct a private auction of the property, limited to Farber and Ling. On March 27, 2015, before the hearing on Sherman’s petition for a license to sell the property, Sherman, through counsel, agreed to conduct a private auction; at the hearing, Sherman’s counsel told the court that Sherman would hold the private auction on April 23, 2015 at Sherman’s office, with the bidding to start at $450,000. Sherman’s attorney told Ling and Farber that she, Sherman’s attorney, would prepare a protocol for the auction and “the relinquishment of Ling’s possession should [Farber] be the high bidder.”

On April 17, 2015, after several drafting efforts, Farber and Ling agreed on and signed an Agreement for Judgment; Sherman also signed the document. The original Agreement for Judgment was filed with the Probate and Family Court later on the same day. The Agreement for Judgment, which was incorporated into Farber’s verified complaint, included the following provisions:

1. If the successful bidder must immediately execute a purchase and sale agreement in the form attached hereto as Exhibit A and pay a deposit equal to 10% of the successful bid. . . .

3. To the extent that there is any conflict between the terms of this Agreement For Judgment and the terms set forth in Exhibit A hereto, the terms set forth herein control.

4. The parties hereto agree that the successful bidder shall be entitled to possession of the Premises and that, upon request of the successful bidder, a justice of the Probate & Family Court may issue orders enforcing that right of possession forthwith, provided however:

“(a) That, if Ms. Farber is the successful bidder, Mr. Ling may remain in physical possession of the Premises until 5:00 p.m. on May 19, 2015 . . . .”

On April 22, 2015, the Probate and Family Court authorized Sherman to sell the property “[c]onsistent with the terms of [the Agreement for Judgment].”

The auction was held on April 23, 2015. Farber was the successful bidder at $510,000. In keeping with the terms of the Agreement for Judgment, Farber paid a $51,000 deposit and signed the purchase and sale agreement on April 23, 2015. The purchase and sale agreement, which was also incorporated into Farber’s complaint, called for the balance of the purchase price, $459,000, to be paid “at the time of the delivery of the deed.” The purchase and sale agreement also provided that “[s]uch deed is to be delivered at 1 o’clock P.M. on the 20th day of May, 2015 at the Barnstable Registry of Deeds, or at the office of counsel for BUYER’S lender, provided the same is in Barnstable County, with five (5) days advance notice to the SELLER, unless

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otherwise agreed upon in writing. It is agreed that time is of the essence of this Agreement.”

On May 18, 2015, Farber’s attorney informed Sherman’s attorney that Farber was ready, willing, and able to close on May 20, 2015 at any time after 11:00 A.M., but told Sherman that the alarm system at the property had to be removed before the closing as its presence “would impair the plaintiff’s ability to take possession” of the property.

The following day, May 19, 2015, Farber went to the property and noticed that Ling’s possessions remained on the property. Farber demanded that Sherman recognize her right to possession at 5:00 P.M. that day, but Sherman “refused plaintiff’s demand.” Farber’s lender would not close without Farber’s being in possession of the property.

Ling had not vacated the property by 5:00 P.M. on May 20, 2015.

On May 21, 2015, Sherman told Farber that Sherman expected Ling to vacate the property by midday, and suggested that Farber and her lawyer meet Sherman at the property at 4:30 P.M. that afternoon. The parties met as planned, but Ling had not vacated the property. Sherman did not agree to Farber’s demand to take possession of the property immediately.

The next day, May 22, 2015, Sherman told Farber that Sherman expected Ling to vacate the property by 3:00 P.M. that day, but refused to allow Farber to take immediate possession of the property. Sherman, without Farber’s permission, had the locks to the property changed, and refused to allow Farber to enter the property; Farber’s attorney’s efforts to enter resulted in his being charged with assault and battery on Sherman.

On the morning of May 23, 2015, Farber gained entry to the property and notified Sherman of her possession. Sherman responded that Farber was not the owner of the property and had no right to access it without Sherman’s permission. Farber made immediate arrangements to pay cash for the property. On May 26, 2015, Sherman delivered to Farber the deed to the property after Farber arranged to have the existing alarm system removed.

Farber alleged that the Agreement for Judgment was a contract, and that Sherman breached the terms of that contract in (1) denying Farber possession of the property on May 19, 2015 at 5:00 P.M. and afterward; (2) in unilaterally changing the locks and access codes at the property in order to keep Farber from entering there; and (3) in failing to remove the alarm system from the property. As a result, Farber claimed she was harmed in that she was “unable to begin cleaning and make [sic] repairs to the Chatham property on May 19, 2015 at 5:00 PM and to commence renovation work on the property beginning on May 20, 2015 at 1:00 PM.” Farber claimed for actual or nominal damages, plus interest, costs, and attorney’s fees.

In order to establish a breach of contract claim, Farber’s complaint must allege (1) the existence of a contract; (2) that Farber performed her duties under the contract; (3) that Sherman breached the contract; and (4) that Farber suffered damages as a result. See Singarella v. City of Boston, 342 Mass. 385, 387 (1961); Restatement (Second) of Contracts § 1, at 5 (1981). In our determination, it does so.

The facts alleged in Farber’s complaint plausibly suggest, see Iannacchino, supra at 636, that in the Agreement for Judgment, Sherman agreed that if Farber emerged from the private auction as the high bidder for the property, Farber would be entitled to possession of the property on May 19, 2015 at 5:00 P.M., before the transfer of the deed for the property. We find nothing in this agreement that is impermissible under the law, or fatally inconsistent with any other part of the parties’ agreements. It is

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significant that the transfer of the property was limited by the terms of the Agreement for Judgment to the transfer from one party with an existing right of possession to another party with an existing right of possession. On Waage’s death, Farber and Ling had become tenants in common with respect to the property. G.L. c. 184, § 7 (providing, in relevant part, that “conveyance or devise of land to two or more persons . . . shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy”). As tenants in common, Farber and Ling had equal rights to possession of the property subject to that tenancy. See, e.g., Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 90 (2008), quoting Muskeget Island Club v. Prior, 228 Mass. 95, 96 (1917) (each tenant in common has, with respect to property subject to tenancy, “an equal right of entry, occupation and enjoyment, the possession of one being presumed to be the possession of all”). On the facts alleged in the complaint, there is no basis to disturb the usual presumption that Farber’s and Ling’s rights to common possession of the property vested at the time of Waage’s death. See Cross v. Cross, 324 Mass. 186, 188-189 (1949) (discussing nature of tenancy and noting that testator’s indication that property was given outright to beneficiaries made it clear that “the time to which survivorship refers must be the death of the testator is clear from the fact that the testator’s personal property, consisting of a savings bank deposit, was given outright to the sons by the same words”); Daley v. Daley, 300 Mass. 17, 21 (1938) (“Title to real estate devised by will passes directly, on probate of the will, to the devisee and relates back to the instant of the death of the testator. Lobdell v. Hayes, 12 Gray 236. Drury v. Natick, 10 Allen 169, 182. Busiere v. Reilly, 189 Mass. 518.”); 80 Am. Jur. 2d Wills § 1281, at 472-473 (2013) (“The general rule is that title to real estate vests, passes, or descends to the owner’s devisees immediately upon the death of the testator and not to the owner’s personal representative.”).

While the Probate and Family Court granted sole possession of the property to Ling, that order gave Sherman, as personal representative, significant discretion in determining possession of the property: the order permitted Ling’s exclusive possession “only until such time as the Personal Representative, Attorney Lisa F. Sherman, makes decisions or takes steps that may be contrary to those orders.” Sherman’s execution of the Agreement for Judgment, which included an agreement that “the successful bidder shall be entitled to possession of the Premises,” with a right of enforcement, was a decision and step that was contrary to the temporary order granting possession to Ling, but within the discretion recognized by the Probate and Family Court’s order. Sherman’s agreement in this regard was also within the statutorily defined scope of Sherman’s duties as personal representative of Waage’s estate: “[E]very personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property . . . may be . . . surrendered to the person presumptively entitled thereto . . . .” G.L. c. 190B, § 3-709. When Farber made the winning bid and paid the deposit, she became “presumptively entitled” to possession as of the date included in the Agreement for Judgment: May 19, 2015 at 5:00 P.M. Under the terms of the Agreement for Judgment, Sherman had no basis on which to deny Farber possession of the property as of 5:00 P.M. on May 19, 2015.

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Farber’s allegations as to damages from Sherman’s breach of contract are that “[Farber] was unable to begin cleaning and make [sic] repairs to the Chatham property on May 19, 2015 at 5:00 PM and to commence renovation work on the property beginning on May 20, 2015 at 1:00 PM.” She concedes that her damages were “mitigated” as of May 26, 2015, the date on which she ultimately obtained possession. Farber seeks “damages in the amount established by the evidence at trial, or in the absence of a showing of pecuniary loss, in a nominal amount, citing to White Spot Constr. Corp. v. Jet Spray Cooler, Inc., 344 Mass. 632, 634 (1962). Additionally, Farber requests “interest, costs and attorney’s fees as allowed by law.”

Farber’s complaint fails to specify any monetary loss occasioned by the one-week delay in her gaining possession of the property, and the Agreement for Judgment does not provide for costs of litigation, or for attorney’s fees, as to her claims against Sherman. [Note 2] Massachusetts does, however, recognize that where a breach of contract has been proved, the plaintiff is entitled to nominal damages. See, e.g., MacDonald v. Stack, 345 Mass. 709, 711 (1963) (sustaining objection to directed verdict on breach of contract claim where plaintiff demonstrated entitlement to nominal damages), citing Corbett v. Derman Shoe Co., 338 Mass. 405, 412 (1959) (noting, in reversing judgment for defendant on plaintiff’s breach of contract claim, “[N]ominal damages are recoverable for breach of contract.”); Lane v. Epinard, 318 Mass. 664, 667 (1945) (stating, in affirming denial of directed verdict motion, “The contract having been established and a breach having been proved, the plaintiff in any event was entitled to nominal damages, and, the plaintiff being entitled to damages, the motion to direct a verdict was properly denied” [citations omitted]); Damiano v. National Grange Mut. Liab. Co., 316 Mass. 626, 629 (1944) (stating, in reversing demurrer on declaration alleging breach of contract, “When a contract has been broken by a defendant, the plaintiff ‘is entitled to a verdict for nominal damages for the breach, if nothing more. For every breach of a promise made on good consideration, the law awards some damage.’ . . . Of course, a declaration is good against demurrer if it states a case for any relief, even nominal damages” [citation omitted]); H.J. Alperin, Summary of Basic Law § 5.70, at 775 (4th ed. 2006) (“[B]reach by one party of a contractual obligation entitles the other party to an award of nominal damages, even though no actual loss in a substantial amount results or is proved.”); R.W. Bishop, Prima Facie Case § 2.22, at 60 (5th ed. 2005) (“It is not necessary that the plaintiff allege or prove damages in a civil action based on contract if he be content with an award of nominal damages.”). A plaintiff is not required to prove nominal damages. Damiano, supra at 629. See White Spot Constr. Corp., supra at 636 (judge correctly instructed jury that where plaintiff proved breach of contract, but no actual damages, jury limited to awarding nominal damages).

As Farber’s complaint otherwise makes out a claim for breach of contract, and seeks, among other remedies, nominal damages, her allegations plausibly suggest a breach of contract claim. See Iannacchino, supra at 636. Accordingly, we reverse the allowance of the motion to dismiss, vacate the judgment of dismissal, and return the case to the trial court.