RICHARD SHUSTER, a/k/a RICHARD A. SHUSTER v. WELL-BUILT HOMES, INC.

This is a complaint for declaratory judgment brought by Plaintiff Richard Shuster, also known as Richard A. Shuster (Mr. Shuster), against Defendant Well-Built Homes, Inc. (Well- Built), seeking to enforce an alleged restriction against a parcel of land that is owned by Well-Built and which abuts a property that is owned by Mr. Shuster. The subject parcel is Estate Lot 10B, a 54,696-square-foot lot shown on the “Approval Not Required Plan for the Woods at Padanaram Village, Dartmouth Massachusetts,” prepared for Well-Built and recorded in the Bristol County Southern District Registry of Deeds in Plan Book 145, at Page 118, on August 8, 2000 (Property). [Note 1]

In conjunction with his complaint, which was filed March 1, 2002, Mr. Shuster moved for approval of a memorandum of lis pendens on the Property, pursuant to G. L. c. 184, § 15. The memorandum of lis pendens was approved by the court (Kilborn, J.), on March 1, 2002. Well-Built submitted its answer and defenses to Mr. Shuster’s complaint, which were filed with the court March 27, 2002. No further action was taken by either party or the court with respect to the pleadings until March 27, 2014, when Well-Built filed a motion to dismiss the complaint for lack of prosecution pursuant to Mass. R. Civ. P. 41(b)(2), or alternatively, to dissolve the lis pendens and to dismiss the complaint pursuant to G. L. c. 184, § 15(c). [Note 2] Together with its motion to dismiss, Well-Built’s counsel, Johanna W. Schneider, Esq., filed an affidavit, dated March 27, 2014, with exhibits lettered “A” through “P” (Schneider Affidavit). Counsel for Mr. Shuster and Well-Built appeared for oral arguments on Well-Built’s motion to dismiss on April 25, 2014. There, counsel for both parties agreed that there were no material facts in dispute, and that Well-Built’s motion to dismiss pursuant to G. L. c. 184, § 15(c) would be converted to a motion for summary judgment. Subsequently, both parties filed briefs. For the reasons set forth below, this court holds that Defendant’s Motion for Summary Judgment is GRANTED and the lis pendens on the Property hereby is DISSOLVED.

The Property-Estate Lot 10B- is substantially the same as a parcel labeled “Parcel A” in two previously recorded plans, and as a parcel identified as the “DeMello Buffer Zone” in a settlement agreement which was reached by Mr. Shuster and then-spouse Barbara Shuster, with Anna B. DeMello, David J. DeMello, and Denne C. DeMello, individually and as trustees of Krisian Realty Trust (Settlement). Mr. Shuster premises his complaint on a specific provision of that Settlement, dated November 5, 1987, recorded in Book 2285, at Page 198, on March 3, 1989. The provision of the Settlement on which Mr. Shuster relies provides:

2. Prior to the conveyance by the Shusters of any lot shown on the [Liberty Tree Definitive Subdivision Plan], the Shusters shall convey… to Anna B. DeMello, her successors and assigns, the land shown and identified… as the “DeMello Buffer Zone” for One ($1.00) Dollar subject to the following restrictions and conditions:

(i) no building, structure or improvement of any kind shall ever be constructed or maintained within the DeMello Buffer Zone…

In the instant action, Mr. Shuster asserts that Paragraph 2(i) of the Settlement created a valid restriction on the Property, and that he may enforce the restriction against Well-Built, or against any third party to whom Well-Built would convey the Property for use as a building lot. Mr. Shuster asserts that any such use of the Property as a building lot would be in breach of the alleged restriction and would be a detriment to him as a party to the Settlement and an owner of a parcel abutting the Property. Id.

Well-Built presents two theories supporting its contention that Shuster cannot enforce the restriction referenced in the Settlement. First, it contends that the Settlement provision in question contains a condition precedent, that Mr. Shuster did not satisfy the condition, and that as a result, the obligation attached to the condition may not be enforced. Well-Built also asserts that neither Mr. Shuster nor his then-spouse ever conveyed the Property to DeMello in accordance with the Settlement, and that as a result, Mr. Shuster should be estopped from now attempting to enforce any such restriction. Second, Well-Built asserts that the restriction purportedly created by the Settlement fails to meet the enforceability requirements of G. L. c.184, § 27(a).

The record establishes the following material facts which are not in dispute [Note 3]:

1. At the time the complaint was filed, Plaintiff Shuster resided at 11 Scotch Pine Circle, Wellesley, Massachusetts.

2. At the time the complaint was filed, Defendant Well-Built, a Massachusetts corporation, had its principal place of business at 422 Mariano Bishop Blvd., Fall River, Massachusetts. [Note 4]

3. All properties relevant to the instant action were initially contained within the Broadmeadows Subdivision as shown in the plan entitled “Plan B Broadmeadows, South Dartmouth, Mass., Owned by Everett B. Sherman,” dated October 22, 1915, and recorded in Plan Book 14, at Page 43.

4. On December 1, 1986, Mr. Shuster and his then-spouse, Barbara Shuster (Shusters), who jointly owned a number of properties in the Broadmeadows Subdivision, submitted a proposed Definitive Subdivision Plan, entitled “Liberty Tree” dated November 25, 1986, to the Dartmouth Planning Board for approval. The Shusters proposed to modify the Broadmeadows Subdivision to create 20 lots within their land.

5. The proposed Liberty Tree subdivision abutted land owned by Anna B. DeMello, David J. DeMello and Denne C. DeMello, individually and as trustees of Krisian Realty Trust (collectively, DeMellos).

6. On January 5, 1987, the DeMellos commenced Civil Action No. 87-0020 in Bristol County Superior Court, challenging and seeking to enjoin the proposed Liberty Tree subdivision.

7. On November 5, 1987, the Shusters and DeMellos entered into the Settlement, which resolved issues raised by the initial Liberty Tree proposal and the DeMellos’ action to enjoin it. The Settlement was recorded in Book 2285, at Page 198, on March 3, 1989.

8. The Settlement references a plan entitled “Liberty Tree Definitive Plan of Land” (Liberty Tree Plan) dated October 15, 1987 which was prepared for the Shusters.

9. The Settlement was made in consideration of various covenants and agreements, including the granting of a non-exclusive utility easement to the DeMellos across property owned by the Shusters, and the creation of the so-called “DeMello Buffer Zone.”

10. The Liberty Tree Plan was approved by the Dartmouth Planning Board on April 4, 1988, after minor revisions. The Plan was recorded in Plan Book 121, at Page 113, on December 6, 1988.

11. The Liberty Tree Plan, as approved, includes parcels numbered 1 to 20, and a 49,696- square-foot parcel, identified as “Parcel A,” which is labeled on the Plan as an “unbuildable lot.” Parcel A directly abuts properties owned by the DeMellos.

12. On August 5, 1999, as part of a previous divorce settlement, Mr. Shuster and his then- former spouse, Barbara, conveyed by quitclaim deed to Barbara a substantial number of the parcels within the Broadmeadows Subdivision which the couple owned. Among the lots conveyed to Barbara were lots 1-4, lots 6-19, and Parcel A, as shown on the Liberty Tree Plan. The deed stated, “This conveyance is subject to and with the benefit of all encumbrances, restrictions and easements of record to the extent the same are in force and effect.” The conveyance was recorded in Book 4485, at Page 217, on August 9, 1999.

13. Also on August 5, 1999, as part of the same divorce settlement, Mr. Shuster and his then-former spouse, Barbara, conveyed by quitclaim deed to Mr. Shuster several of the parcels within the Broadmeadows Subdivision which the couple had owned. Among the lots conveyed to Mr. Shuster were lots 5 and 20, as shown on the Liberty Tree Plan. The deed included certain easements, and likewise stated that it was “subject to and with the benefit of all encumbrances, restrictions and easements of record to the extent the same are in force and effect.” The conveyance was recorded in Book 4485, at Page 213, on August 9, 1999.

14. Lot 20, which was conveyed to Mr. Shuster as part of the divorce settlement, directly abuts the land identified as Parcel A in the Liberty Tree Plan.

15. Neither of the Shusters conveyed the land identified as Parcel A on the Liberty Tree Plan to Anna B. DeMello, or her successors, or assigns, prior to the conveyances of lots comprising the Liberty Tree subdivision stemming from the Shusters’ divorce.

16. A plan entitled “Definitive Subdivision Plan – Overall Subdivision Plan of The Woods at Padanaram Village – Dartmouth, MA” (Woods Plan), prepared for Barbara Shuster, dated January 5, 1999, was approved by the Dartmouth Planning Board April 5, 1999, and revised per the board’s conditions of approval on April 15, 1999. The Woods Plan was recorded in Plan Book 143, at Page 44, on August 20, 1999.

17. The Woods Plan is substantially similar to the Liberty Tree Plan. It includes lots numbered 1 to 15, as well as a “Parcel A,” which is identical in its proportions to Parcel A of the Liberty Tree Plan and is also identified as an unbuildable lot. The Woods Plan makes note of, but does not include, the two lots which had been conveyed to Mr. Shuster as part of the divorce settlement.

18. On September 1, 1999, Barbara Shuster conveyed by quitclaim deed to Well-Built a substantial number of the parcels within the Broadmeadows Subdivision which she owned. Among the lots conveyed to Well-Built were lots 1-15 and Parcel A, as shown on the Woods Plan. The deed stated, “This conveyance is subject to and with the benefit of all encumbrances, restrictions and easements of record to the extent the same are in force and effect.” The conveyance was recorded in Book 4512, at Page 23, on September 9, 1999.

19. A plan entitled “Approval Not Required Plan – The Woods at Padanaram Village – Dartmouth, Massachusetts” (ANR Woods Plan), prepared for Well-Built, dated August 1, 2000, was endorsed by the Dartmouth Planning Board August 7, 2000. The ANR Woods Plan was recorded in Plan Book 145, at Page 118, on August 8, 2000.

20. The ANR Woods Plan is substantially similar in layout to the previous Woods Plan. It incorporates two additional lots, numbered 9A and 9B, which were not included in the previous Woods Plan. The ANR Woods Plan features a 54,696-square-foot lot, identified as “Estate Lot 10B,” which is substantially identical in its location to Parcel A of the previous Woods Plan. Estate Lot 10B is not identified as an unbuildable lot on the ANR Woods Plan. [Note 5]

21. In an agreement dated December 30, 1999, David J. DeMello and Roger Stanford, as co-administrators of the Estate of Anna B. DeMello; David J. DeMello and Denne C. DeMello, individually and as trustees of Krisian Realty Trust, agreed to release Well-Built of any and all responsibility and liability it could have pursuant to the terms and conditions of the Settlement between the Shusters and the DeMellos, dated November 5, 1987. The agreement further stipulated that any and all interest still held by the DeMellos pursuant to the Settlement would be granted and conveyed to Well-Built. The agreement was recorded in Book 4594, at Page 248, on December 31, 1999.

22. In an agreement dated March 7, 2002, Joseph Russo and Ann F. Russo (Russos), successors-in-interest to lands previously owned by Anna B. DeMello which abut the property identified as Estate Lot 10B in the ANR Woods Plan, agreed to dismiss an action brought in Bristol County Superior Court in which they had sought to enforce certain provisions of the Settlement between the Shusters and the DeMellos. The Russos further agreed to assign, transfer and release to Well-Built all rights stemming from the Settlement. The Russos and Well-Built further agreed that any remaining terms, provisions and conditions of the Settlement intended to protect and benefit the DeMellos’ lands would be terminated.

***

Rule 12(b) of the Massachusetts Rules of Civil Procedure provides that “[i]f, on any motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .” The special motion to dismiss initially facing this court, while not made under Mass. R. Civ. P. 12(b)(6) for failure to state a claim, was made under G. L. c. 184, § 15(c) on Well-Built’s assertion that the legal basis of Mr. Shuster’s complaint “is entirely without merit and should therefore be dismissed.”

At the hearing over Well-Built’s special motion to dismiss, counsel for both parties expressly agreed that Well-Built’s motion would be converted to a motion for summary judgment on the merits, in light of materials outside the pleadings that were brought to the court’s attention through the Schneider Affidavit attachments and otherwise. At the hearing and in subsequent memoranda, counsel for both parties stipulated that the documents and the facts set forth in the Schneider Affidavit would constitute the record of undisputed facts for the purposes of summary judgment. Counsel also expressly agreed at the hearing that, at the court’s discretion, the summary judgment motion on the merits could be decided without a hearing under Land Court Rule 6.

Accordingly, this court looks to the standards of Mass. R. Civ. P. 12 (b)(6) to determine whether the Complaint states a claim but treats Well-Built’s motion as one for summary judgment on the merits. Compare Davidson v. Com., 8 Mass. App. Ct. 541 , 542, 545 (1979) (affirming lower court’s allowance of defendant’s motion to dismiss, but holding that motion should have been treated as one for summary judgment because materials outside the complaint were brought to the judge’s attention for purposes of the hearing on defendant’s motion).

Mass. R. Civ. P. 56(c) provides that “[t]he judgment sought shall be rendered forthwith if the pleadings… together with the affidavits… show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Summary judgment may also be rendered against the moving party. Summary judgment is not inappropriate where contradictory inferences may be drawn from the same set of undisputed facts, insofar as the contradictions are not supported by additional specific facts which would prompt the court to find that there is actually a genuine issue of fact. See Community Nat. Bank v. Dawes, 369 Mass. 550 , 558-59 (1976) (concluding that the bare assertion of inferences before the trial judge raises no issue of material fact). If the moving party meets its burden under Rule 56(c), the burden then shifts to the opposing party to allege specific facts which establish that there is a genuine, triable issue. Id. at 554. The court has approached the issues presented by the parties by agreement as cross-motions for summary judgment. The party seeking to enforce a restriction, in this case, Mr. Shuster, bears the burden on the merits.

The parties present arguments on two primary issues. The first is whether the “no-build” provision of the 1987 Shuster-DeMello Settlement can be considered an enforceable restriction pursuant to G. L. c. 184, § 27(a). [Note 6] Under Brear v. Fagan, 447 Mass. 68 , 75 (2006), § 27(a) requires specificity with respect to the identification of the party/parties and land(s) to be benefited by a restriction, and supplants the common-law rule that allowed identification to be a matter of inference. Well-Built argues that the Settlement describes neither the land intended to be benefited by the alleged restriction, nor the party intended to be benefited, in detail sufficient to satisfy the Brear standard. Mr. Shuster contends that the Settlement clearly describes the benefited land and that it states that the agreement is for the benefit of both parties (those parties being the Shusters and the DeMellos or their successors and assigns).

The second issue (if the first question is answered in the affirmative) is whether Mr. Shuster is able to enforce the “no-build” provision given the language of the provision stating that “[p]rior to the conveyance by the Shusters of any lot shown on the [Liberty Tree Definitive Subdivision Plan], the Shusters shall convey… to Anna B. DeMello, her successors and assigns, the land shown and identified… as the “DeMello Buffer Zone.” Well-Built argues that the language of the provision created a condition precedent to the enforcement of the alleged “no- build” restriction, and that the condition was not satisfied by the Shusters. Mr. Shuster contends that nothing in the Settlement supports Well-Built’s position that conveyance of the subject Property to the DeMellos was a condition precedent to the imposition of the restriction on the Property.

Pursuant to G. L. c. 184, § 27, and the Supreme Judicial Court’s holding in Brear, a person is able to enforce a restriction under one of two possible scenarios (notwithstanding § 30, which imposes additional requirements in order for a restriction to be considered valid). First, he may enforce an otherwise valid restriction if he is a party to the instrument imposing the restriction and the restriction is stated to be for his benefit. Brear, 447 Mass. at 73. Alternately, he may enforce the restriction if he is owner of an interest in benefited land, provided that both a description of that land and a stated intention to benefit that land are expressed in the deed itself. Id.; see also Spencer v. Slavin, 19 LCR 17 (2011)(Piper, J.) (Discussing whether, after Brear, Section 27 requires that adjoining land must be identified as benefitted and concluding “[s]ection 27 requires that adjoining land has to be ‘stated to be benefited,’ in addition to the requirement that it be adjoining or described in the instrument.”).

There is no dispute that Mr. Shuster is a party to the instrument, namely, the 1987 Shuster-DeMello Settlement, which refers to the alleged “no-build” restriction. The Settlement states, at Paragraph 10, that it “is made for the exclusive benefit of the parties hereto and their successors, heirs and assigns.” However, the holding in Brear makes clear that “[e]ven with regard to an original party to the instrument imposing the restriction (i.e., the grantor), § 27(a) precludes enforcement unless the restriction is stated to be for his benefit.” 447 Mass. at 73 (internal quotations omitted, emphasis added).

Mr. Shuster argues that the Settlement was recorded for the sole purpose of creating the restriction. Even if that were true, nowhere in Paragraph 2 of the Settlement – which is the paragraph creating the alleged restriction – is there explicit language that the restriction itself is for the benefit of Mr. Shuster. On the contrary, the language of Paragraph 2, supra, which identifies the potentially restricted Property as the “DeMello Buffer Zone,” indicates that if there is in fact a restriction, it is for the benefit of the DeMellos (and their successors, assigns and/or heirs).

The court is convinced of the correctness of the latter construction, given the circumstances of the Settlement as a whole, which involved the Shusters granting to the DeMellos various concessions and other consideration – such as the DeMello Utility Easement, supra, and a payment of $6,000 – in exchange for the DeMellos dropping their Superior Court action which sought to enjoin the Shusters’ subdivision proposal. See Fay, Spofford & Thorndike, Inc. v. Massachusetts Port Auth., 7 Mass. App. Ct. 336 , 344 (1979) (concluding that a literal interpretation of a word or phrase may be qualified by the context in which it appears, by the general purpose manifested by the entire instrument, and by circumstances existing at the time of execution); see also Restatement (Second) of Contracts § 202 (1981) (“Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight”). Thus, Mr. Shuster cannot avail himself under § 27(a)(1).

Alternately, under § 27(a)(2), Mr. Shuster may be able to enforce the alleged restriction as owner of an interest in benefited land, provided that the land is described in the instrument imposing the restriction and “is stated therein to be benefited…” Brear, 447 Mass. at 73. The cover page of the Settlement states, “[R]eference is made to the following factual back-ground . . .,” and the subsequent three paragraphs clearly describe the land in the Broadmeadows Subdivision that was, at the time, owned by the Shusters and the DeMellos. However, nowhere in those paragraphs or elsewhere in the Settlement is it stated that the Settlement is for the benefit of the Shusters’ land. Therefore, Mr. Shuster cannot avail himself under § 27(a)(2). See Brear, 447 Mass. at 76 (“[I]f an instrument creating restrictions fails to provide the requisite precision and clarity, alternative but less certain methods of demonstrating the intent of the parties are not to be employed . . . .”); see also Spencer, 19 LCR at 20 (“The benefitted land either is or is not stated in the instrument to be benefitted.”).

As this court finds and rules that Mr. Shuster has not established that he may enforce the alleged restriction pursuant to G. L. c. 184, § 27, it is not necessary to expound on the merits of Well-Built’s argument that the restriction, even if valid, contained a condition precedent which Mr. Shuster did not satisfy.

For the reasons set forth above, this court holds Defendant’s Motion for Summary Judgment is GRANTED, and the lis pendens on Defendant’s Property is DISSOLVED.

Judgment to issue accordingly.