THE JOSEPH A. CARDILLO REVOCABLE TRUST and JOSEPH A. CARDILLO v. CHARLES J. CARDILLO, as nominee for CARDILLO BROTHERS NOMINEE TRUST, CHARLES J. CARDILLO, and GILMAN WHITNEY

This action was commenced by plaintiff, Joseph Cardillo, individually and as Trustee of the Joseph A. Cardillo Revocable Trust, on December 16, 2005, as a petition to partition a certain parcel of real property, known as and numbered 814 and 798 East Street in Pittsfield, owned of record by brothers, Joseph Cardillo and defendant, Charles J. Cardillo, as tenants in common. In the alternative, plaintiff seeks specific performance of an settlement agreement dated November 7, 2005, regarding, inter alia, defendant's conveyance of his interest in the property to plaintiff for the sum of one hundred and twenty-five thousand ($125,000.00) dollars. [Note 2]

On January 10, 2006, the Court issued an Order appointing Attorney, Jeffrey S. Brown of Agawam, as partition commissioner. [Note 3] Over the next year, the parties appeared before the court several times. Among the matters in controversy were the amount of rent being paid by Joseph, discovery issues, motions seeking entry of preliminary injunctions, and complaints alleging contempt of court.

The Court took a view of the property on April 15, 2008, and trial began the same day in Pittsfield; testifying were Joseph A. Cardillo, Charles J. Cardillo, and Jonathan Goldsmith; thirty-three exhibits were admitted into evidence. On June 9, 2008, both parties filed post-trial briefs.

After careful consideration of all of the evidence, the Court entered a Decision today, ruling that the November 7, 2005 agreement is currently a valid and enforceable contract and that specific performance is proper.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the agreement of November 7, 2005 is a valid and enforceable contract;

ADJUDGED and ORDERED that defendant, Charles Cardillo shall specifically perform and abide by all of the terms of the November 7, 2005 Agreement as executed by him and plaintiff, Joseph Cardillo;

ADJUDGED and ORDERED that defendant, Charles Cardillo shall convey to plaintiff Joseph Cardillo, all of his interest in the land, known as and numbered 798 and 814 East Street in Pittsfield, at 12:00 p.m. on February 6, 2009, unless otherwise agreed in writing by the parties or by other order of the Court. Defendant shall duly execute, acknowledge, as appropriate, and deliver to plaintiff, at the office of the plaintiff's counsel, Michael K. Callan, Doherty Wallace Pillsbury, 1414 Main Street, Springfield, MA 01144, the deed and all other instruments and papers called for to be provided under the purchase and sale agreement;

ADJUDGED and ORDERED that should defendant fail to perform in the manner and by the date set forth in this Decision, plaintiff may seek any appropriate remedies against him; and it is further

ADJUDGED and ORDERED that the parties are to report in writing to the Court promptly after the date established in this Decision for defendant to perform specifically. Based on the report filed, the Court will proceed to enter an appropriate order;

By the Court (Trombly, J.)