2017 Mass. App. Div. 38

December 4, 2015 - February 16, 2017

Appellate Division Southern District

Court Below: District Court, Hingham Division

Present: Hand, P.J., Finnerty & Finigan, JJ.

Steven M. Guard and Francis X. Hubbard for the plaintiffs.

Jonathan C. Young for the defendant.

FINNERTY, J. On February 22, 2012, the parties entered into a written agreement under which the plaintiffs-appellees, Daniel DelPrete and Christine DelPrete ("DelPretes"), would purchase commercial real estate located in the town of Rockland from the defendant-appellant, Chad Realty Associates, LLC ("Chad Realty"). The DelPretes gave a deposit of $40,000 toward the purchase to be held by the broker for Chad Realty.

The written purchase and sale agreement provided that time was of the essence and included the following contingency in paragraph 23:

"BUYER shall have an initial permitting period of ninety (90) days from the date of the execution of this Agreement in order to obtain all necessary permits for its intended use. If at the end of said ninety (90) days the BUYER has been unable to obtain any and all necessary permits, then the SELLER shall grant a thirty (30) day extension to complete said permitting process but only if the BUYER has filed for said permits and the permits have yet to be issued because of activity or inactivity by persons beyond the control of the BUYER."

The agreement further provided that if the buyers were to unable to obtain their permits timely, [Note 2] they could terminate the purchase agreement so long as notice was received by the seller within the ninety days. Failure of the buyers to fulfill their obligations under the agreement would result in default and forfeiture of their deposit as liquidated damages.

The ninetieth day was May 22, 2012. On May 23, 2012, the DelPretes sent a written request for an extension, and Chad Realty sent a letter claiming the DelPretes were in default but also stating that Chad Realty "wishes to proceed with the sale" and suggesting a new closing date to be seven days following any period for appeal of the

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anticipated special permit. The letter emphasized, though, that the deposit was now the property of Chad Realty.

The DelPretes' application for a special permit was submitted to the town zoning enforcement officer on May 18, 2012 and, following his necessary approval and sign-off, was filed with the town clerk on May 24, 2012. It was ultimately denied by the town on July 10, 2012.

The trial judge found that the DelPretes were not in default and ordered return of the deposit, and also found for the DelPretes on Chad Realty's counterclaim for breach of contract seeking a declaration that the DelPretes had forfeited their deposit.

Chad Realty timely appealed, contending that the court's finding was erroneous; that the court erred in failing to enter judgment for it under Mass. R. Civ. P., Rule 50(a); [Note 3] and that the court failed to comply with Rule 52(c) where Chad Realty had submitted a timely request for findings of fact and rulings of law.

Rule 52(c) of the Mass. R. Civ. P. requires findings of fact and rulings of law in jury-waived cases if a party has submitted, before the beginning of any closing arguments, proposed findings and rulings. The rule does not require extensive detail and imposes a duty on a judge only to articulate the essential grounds for a decision so as to ensure that a judge has dealt fully and properly with all the issues, and that the parties and the reviewing court may be fully informed as to the basis for the judge's decision. Willis v. Board of Selectmen of Easton, 405 Mass. 159, 161-162 (1989). A judge's findings and rulings are not required to respond specifically to each of the party's proposed findings and rulings. "So long as the judge states his findings and the principles of law he applied in deciding the case, specific action by the judge on parties' requests for findings and rulings in not necessary." New England Fin. Resources v. Coulouras, 30 Mass. App. Ct. 146, 147 (1991). In this case, Chad Realty submitted such requests, and the trial judge's findings of June 6, 2014 and June 5, 2015, that the DelPretes had not defaulted and that they were entitled to the deposit and to judgment on Chad Realty's counterclaim, satisfied that requirement. [Note 4]

A trial "judge's findings 'must stand unless they are unwarranted by any reasonable view of the evidence together with all rational inferences that may be drawn therefrom. His general finding is conclusive if there is any evidence to support it.'" Metevia v. Town of Athol, 348 Mass. 274, 280 (1964), quoting Kellogg v. Suher, 329 Mass. 544, 546 (1952). Our review is therefore whether the trial judge's findings

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were contrary to the evidence and clearly erroneous. "A finding is 'clearly erroneous' only when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Demoulas v. Demoulas Super Mks., Inc., 424 Mass. 501, 509 (1997), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). "It is the appellant's burden to show that a finding of fact is clearly erroneous." Id. "[W]e do not 'review questions of fact found by the judge, where such findings are supported "on any reasonable view of the evidence, including all rational inferences of which it was susceptible."' T.L. Edwards, Inc. v. Fields, 371 Mass. 895, 896 (1976), quoting Bowers v. Hathaway, 337 Mass. 88, 89 (1958)." Id. at 510. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id., quoting Anderson v. Bessemer, 470 U.S. 564, 573-574 (1985).

We do not have the benefit of the trial transcript, but the record before us would support the finding that the DelPretes had applied for the special permit by submitting it to the zoning enforcement officer within the time provided under the agreement, thus triggering the contingency, and that Chad Realty had agreed to an extension at the June 10, 2012 zoning board meeting. The issue of waiver of the "time is of the essence" provision of the agreement by Chad Realty's conduct in continuing to deal with the DelPretes regarding the transaction was not addressed by Chad Realty in its brief and was not specifically addressed in the trial court's decision. As with the finding of no default, we do not have the benefit of the trial testimony to address that issue, but nothing in the record that is before us would lead us to conclude that finding such a waiver was clearly erroneous. The trial judge is in the best position to judge the weight and credibility of the evidence. Id. at 509-510.

We hold, therefore, that Chad Realty has not met its burden of showing that the trial judge's findings were clearly erroneous. The appeal is dismissed.


[Note 1] Christine DelPrete.

[Note 2] In order to use the property as they intended for a nursery/garden center or to seek approval for a change in a preexisting nonconforming use, the DelPretes needed zoning board approval of a special permit.

[Note 3] Mass. R Civ. P., Rule 50, allows a party in a case tried to a jury to move for a directed verdict at the close of an opponent's case and at the close of all the evidence. As this case was tried to a judge, Rule 50 does not apply, and Chad Realty presumably intended its motion as one for involuntary dismissal pursuant to Mass. R. Civ. P., Rule 41(b)(2).

[Note 4] Despite the fact that the trial judge's June 5, 2015 findings were filed after the 10-day period provided for in Mass. R. Civ. P., Rule 52(d), they do not amend the court's June 6, 2014 findings or alter the judgment, and the findings set forth in the June 6, 2014 filing are adequate for purposes of our appellate review. See Nessralla v. Peck, 403 Mass. 757 (1989), in which the Court held that a former Superior Court judge's filing of findings, which occurred after he was no longer a Superior Court judge, was valid where it merely memorialized draft findings that had been made while he was still on the Superior Court bench.