Home JOHN A. GIFFORD and DEBRA F. GIFFORD vs. ANDREW J. BURKE

MISC 10-435104

February 18, 2011

Sands, J.

JUDGMENT

With:

Petitioners John A. Gifford and Debra F. Gifford filed their Petition for Partition relative to property located at 15-15A Pierview Avenue, Revere, MA (the “Partition Property”) pursuant to G. L. c. 241 on December 30, 2008. [Note 1] Defendant Andrew J. Burke filed his Answer on February 3, 2009. A case management conference was held on March 10, 2009, at which time the parties indicated that they were interested in converting the Partition Property to a condominium. At a status conference held on June 18, 2009, at which Defendant did not appear, Petitioners indicated that the condominium conversion was still in process. At a status conference held on July 31, 2009, the parties indicated they could not reach agreement on the condominium conversion and this court ordered a partition commissioner to be appointed. [Note 2] By Order dated August 4, 2009, this court appointed Robert Cotton, Esq. as a Partition Commissioner. The Commissioner filed his first report on September 24, 2009, and based on Defendant’s response, filed a Supplemental Report on October 5, 2009. At a status conference held on October 13, 2009, there was a dispute between the parties as to how the property was to be sold and how the respective allocations would be made. By Order dated December 23, 2009, this court issued a Warrant to Sell the Partition Property by Private Sale at a minimum price of $370,000. Petitioners filed a Motion to Withdraw Petition for Partition on December 31, 2009. At a status conference held on January 19, 2010, this court denied the Motion to Withdraw Petition. On February 2, 2010, Petitioners filed their Motion for Reconsideration of Petitioners’ Motion to Withdraw or in the alternative, Motion for Specific Performance for Condominium Conversion. A hearing was held on the motion on March 11, 2010, at which time the Motion for Reconsideration was denied. A mediation held on April 1, 2010, was unsuccessful. At a status conference held on April 27, 2010, the parties were required to list their respective contributions for the Partition Property with the Commissioner. A pre-trial conference was held on July 15, 2010, to discuss the issues of specific performance, parties’ contributions, and method of sale. [Note 3] At that time Petitioners indicated that they would file a new complaint for specific performance, which would put the partition action on hold.

Plaintiffs filed their Complaint for Specific Performance on July 30, 2010 (10 MISC 435104), seeking 1) specific performance of the contract to convert the Partition Property to condominium status, or in the alternative, of the contract to convey the Partition Property to Plaintiffs, 2) breach of the contract to convert the Partition Property to condominium status, or in the alternative, of the contract to convey the Partition Property to Plaintiffs, and 3) breach of the implied covenant of good faith and fair dealing to convert the Partition Property to condominium status, or in the alternative, of the contract to convey the Partition Property to Plaintiffs. A case management conference was held on August 24, 2010. On August 26, 2010, Defendant filed his Motion to Dismiss, together with supporting memorandum, and on October 18, 2010, Plaintiffs filed their Opposition, together with supporting memorandum. The Motion to Dismiss was heard on December 6, 2010, and the matter was taken under advisement. A decision (“Decision 1”) of today’s date has been rendered.

In accordance with Decision 1 it is:

ORDERED and ADJUDGED that there was no enforceable agreement between Petitioners and Defendant relative to a condominium conversion, nor was there a present intention to be bound by such conversion. [Note 4]

ORDERED and ADJUDGED that since no contractual agreement existed between the parties, there can be no breach thereof.

ORDERED and ADJUDGED that there will be no grant of specific performance and no award of damages arising out of the alleged contract to convert the Partition Property to condominiums.

ORDERED and ADJUDGED that there was no breach of the implied covenant of good faith and fair dealing arising out of the alleged contract to convert the Partition Property to condominiums.

ORDERED and ADJUDGED that there was no agreement relative to the sale of the Partition Property and no present intention of Defendant to be bound by an agreement to sell his interest in the Partition Property. ORDERED and ADJUDGED that since no contractual agreement existed between the parties, there can be no breach thereof.

ORDERED and ADJUDGED that there will be no grant of specific performance and no award of damages arising out of the alleged contract for Defendant to sell his interest in the Partition Property to Petitioners.

ORDERED and ADJUDGED that there was no breach of the implied covenant of good faith and fair dealing arising out of the alleged contract for Defendant to sell his interest in the Partition Property to Petitioners.

ORDERED and ADJUDGED that Defendant’s Motion to Dismiss is ALLOWED.

By the court. (Sands, J.)


FOOTNOTES

[Note 1] Petitioners were seeking to partition the Partition Property, and listed as owners themselves as a 50% tenant in common and Defendant as a 50% tenant in common. The Partition Property is a lot containing a two story wooden duplex structure in Revere, MA. Petitioners received a deed for their one-half undivided interest in 2004 for the sum of $380,000, and occupy unit 15A as their primary residence. Defendant received a deed for his one-half undivided interest in 1972 for the sum of $5000, and his unit 15 is occupied seasonally by his sister and brother-in-law. Petitioners one-half interest is encumbered with a mortgage to Citimortgage, Inc. in the original principal amount of $300,000.

[Note 2] By letter dated July 29, 2010, and filed with this court the same day, Defendant stated that “[Defendant] is no longer interested in pursuing the option of converting the above-captioned property to condominiums.”

[Note 3] The parties were unable to file a joint pre-trial memorandum because, as has been evident throughout the course of this litigation, the parties refuse to communicate on most matters.

[Note 4] Defendant also argues the Statute of Frauds (G.L. c. 259, § 1), and states that any agreement is not enforceable because it is not in writing. Because this court has found that there was no enforceable agreement, it does not need to address such argument.