MISC 07-346191

October 27, 2008


Scheier, C.J.


In this case, brought pursuant to G. L. c. 185, §1, Plaintiff Harold Madigan alleges that Defendant Bessie V. Sifakis has refused to convey certain lots of land to Plaintiff for the price negotiated by the parties, as set forth in an “Offer to Purchase Real Estate” form. The case is before the court on Defendant’s Motion for Summary Judgment. The material facts established by the record are not in dispute, and are as follows:

Plaintiff is an individual residing in Ayer, Massachusetts, and is a licensed builder. Defendant, Bessie V. Sifakis, is an individual also residing in Ayer, and she is the record owner of unimproved lots numbered 76, 77, 80, 81, and 82, off Williams and Cambridge Streets in Ayer, as shown on a plan entitled “Plan of House Lots, Plan Number 738,” recorded with the Middlesex South registry of Deeds on July 7, 1930, in Book 5477, at Page 572 (together the lots are sometimes referred to as “Locus”). In or about May 2000, Defendant’s husband (Mr. Sifakis), now deceased, told Plaintiff he wanted to sell Locus to Plaintiff. Plaintiff subsequently inspected the lots and determined that they would all require a tie-in to the Town’s sewer system before he could build houses on them.

Plaintiff had previously purchased and built houses on a number of lots located directly across the street from where Defendant lived, and in or about January or February 2001, Mr. Sifakis asked Plaintiff the price he had paid for those lots and how the financing had been structured. Plaintiff told Mr. Sifakis that after Plaintiff obtained a building permit for a particular lot, he would pay the seller $25,000 for that buildable lot. Mr. Sifakis responded that he would agree to that same financing arrangement for the lots that comprise Locus. Further, Mr. Sifakis said he would agree to a $25,000 price for each of lots 76, 77, 81, and 82, and a $35,000 price for lot 80. In March or April 2001, Mr. Sifakis informed Plaintiff that Mr. Sifakis had changed his mind about the financing arrangement for the lots and instead wanted to paid “up front.” Plaintiff then asked his bank if it would be possible to borrow $135,000 to make an “up front” payment to Mr. Sifakis, and when he was told it would be possible, Plaintiff informed Mr. Sifakis of the bank’s approval of the loan.

In May 2001, Mr. Sifakis informed Plaintiff that he wished to execute an offer to purchase. Upon learning that the lots were owned of record by Defendant and not by her husband, Mr. Sifakis, Plaintiff drafted an Offer to Purchase (Offer) which named Defendant as the seller. Plaintiff and Defendant executed the Offer on May 23, 2001. Simultaneous with the execution of the Offer, Plaintiff paid a $1000 binder by check payable to Defendant. The Offer did not include the parties’ earlier oral agreement that the money for Locus would be paid “up front.” Instead, the Offer provided that payment by Plaintiff was subject to Plaintiff “being able to obtain and secure all necessary permits as required by the Town of Ayer.” At the time the Offer was drafted by Plaintiff and executed by the parties, Plaintiff was unable to obtain permits to construct on the lots due to a sewer moratorium (Moratorium) that the Town had instituted in 2000, of which Plaintiff was aware. According to his deposition testimony, on the day the Offer was executed but just prior to its signing, Plaintiff informed Defendant and Mr. Sifakis of the Moratorium and discussed with them the effect it would have on Plaintiff’s ability to obtain permits to build on the lots. Plaintiff admitted in his deposition that the Offer did not reflect the oral agreement that Plaintiff had with Mr. Sifakis that Plaintiff would pay for Locus “up front.”

On or about June 11, 2001, several weeks after the Offer was executed, Plaintiff’s attorney forwarded a draft Purchase and Sale Agreement (Agreement) to Defendant. The Agreement was never signed by either party. Mr. Sifakis died in 2002. On or about September 3, 2003, two years after Plaintiff forwarded the draft Agreement to Defendant, the Town lifted the Moratorium. On or about February 17, 2004, Defendant directed her attorney to return Plaintiff’s $1000 binder check. At that time, she stated that the terms of the Agreement were not acceptable to her and she was not comfortable holding the deposit. Plaintiff refused the returned binder check because he claimed he was now able to obtain all necessary permits from the Town and was ready to move forward with purchasing Locus.

Plaintiff filed a complaint in the Land Court on April 30, 2007, asserting a claim for specific performance of the Offer. On June 20, 2008, Defendant moved for summary judgment. [Note 1] This court held a summary judgment hearing on September 4, 2008. The summary judgment record includes Plaintiff’s and Defendant’s depositions, copies of the executed Offer and the draft Agreement, the 2004 correspondence in which Defendant returned Plaintiff’s binder, and correspondence through counsel, refusing the returned binder check. Defendant argues that there is no enforceable contract because there was no meeting of the minds expressed in the Offer as to the financing arrangement for Plaintiff’s purchase of Locus. Plaintiff argues that the Offer constitutes an enforceable contract because it identifies the property to be bought, the price to be paid, and states a mechanism by which closing dates should be set.

A motion for summary judgment may be granted only where there are no genuine issues of material fact in dispute that would preclude disposition of the case as a matter of law. See Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553-54 (1976). The moving party bears the burden of affirmatively showing that there is no triable issue of fact. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 644 (2002).

Viewing the facts in a light most favorable to the non-moving party, this court finds that specific performance does not lie on this record because, by Plaintiff’s own admission, the Offer does not reflect the previous oral agreement between him and Mr. Sifakis, on behalf of his wife. Specifically, the Offer does not reflect the parties’ agreement that payment for Locus would be made “up front.” “[A] memorandum which is adequate on its face will not necessarily entitle the plaintiff to enforcement of the underlying oral contract. The memorandum must be accurate and it must contain all the provisions of the oral contract with which the plaintiff is seeking to charge the defendant. If it is silent or at variance with a portion of the oral agreement which forms part of the relief the plaintiff seeks, specific performance will be denied.” A.B.C. Auto Parts, 359 Mass. 327 , 330 (1991).

In this case, Plaintiff admitted in his deposition that the executed Offer, which conditions payment for the lots on Plaintiff’s ability to obtain the requisite permits, does not reflect the parties’ oral agreement that Plaintiff would pay for the Locus “up front.” This payment arrangement was specifically discussed, and agreed, according to Plaintiff. Thus, Plaintiff’s argument that the Offer accurately reflected the parties’ agreement at the time it was executed is misplaced. “To create an enforceable contract, the parties must have had the intention to be bound by their agreement at the moment of its formation.” Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29 , 39 (2008) (citing McCarthy v. Tobin, 429 Mass. 84 , 87 (1999)). Because the parties had a different oral agreement for payment from what is written in the Offer, they cannot be bound to the terms of the Offer because there was no meeting of the minds as to how payment would be effected for the lots. The “up front” payment was clearly important to Mr. Sifakis, and it appears to be the primary, if not sole, point of negotiation between him and Plaintiff. For these reasons, Defendant’s motion for summary judgment must be granted.

Because this court finds there is no contract to specifically enforce, it does not reach the second issue of whether, under McCarthy v. Tobin, the Purchase and Sale Agreement contained additional terms that were at variance with the Offer or whether these additional terms were “merely ministerial and nonessential terms of the bargain.” 429 Mass. 84 , 87 (1999). The parties agree that one provision of the draft Agreement that was not in the Offer was the provision that “time is of the essence.” The court notes, however, that this disputed provision carries little weight in this court’s view. The Moratorium was lifted on September 3, 2003, but Plaintiff did nothing to apply for or obtain the requisite permits for any of the lots that comprise Locus, and Defendant did not return Plaintiff’s binder until February 17, 2004. This situation appears to present a case of both buyer’s and seller’s remorse, albeit for different reasons.

For the reasons stated above, Defendant’s motion for summary judgment is GRANTED. Judgment dismissing Plaintiff’s complaint to issue accordingly.

So Ordered.

By the Court. (Scheier, C. J.)


[Note 1] Plaintiff filed an opposition to Defendant’s motion on August 15, 2008, to which Defendant filed a response in support of her motion on August 20, 2008.