At issue in this case is an undivided one-half ownership interest in a home located at 100 Main Street, in Nantucket (Subject Property). Defendant Josephine Carpenter (Josephine) [Note 2] owns the Subject Property in common with her brother, Walter W. Boyd, Jr. (Walter). Katherine Slover (Katherine), Josephines daughter and a Plaintiff in this case, together with her husband, Plaintiff William Slover (William [Note 3] ) (collectively, the Slovers), allege Josephine repeatedly promised orally and in writing to transfer her half-interest in the Subject Property to Katherine. The Slovers initiated this action against Josephine and Walter on October 20, 2014, seeking specific performance pursuant to G. L. c. 185, § 1(k), of an alleged written contract in which Josephine agreed to gift deed her interest in the Subject Property to Katherine. Katherine and William also allege they detrimentally relied on Josephines promises to convey her interest, pouring thousands of dollars into the Subject Propertys maintenance and upkeep, thereby estopping Josephine from pleading the Statute of Frauds as a defense, should the writings be found not to constitute a written contract. Alternatively, the Slovers seek damages or reimbursement of their expenses under quantum meruit. [Note 4]
The Slovers filed a motion for endorsement of memorandum of lis pendens simultaneously with their complaint. They moved for injunctive relief on November 12, 2014, restraining the sale of the Subject Property by Defendants. On November 17, 2014, Defendants Josephine and Walter filed a special motion to dismiss Counts I and II of the Slovers complaint pursuant to G. L. c. 184, § 15(c), as well as oppositions to the Slovers motions for lis pendens and injunctive relief. A hearing was held on November 18, 2014, at which all parties were heard, and Walter and Josephine agreed not to convey any interest in the Subject Property unless and until they received permission from the court. The court stayed action on the motions for lis pendens and injunctive relief to allow for further briefing from the parties and also to allow the Slovers counsel to withdraw upon substitution of successor counsel. The court made no ruling on the special motion to dismiss, as no lis pendens had yet been approved.
Defendants reinvigorated the motions on February 13, 2015, when they filed an emergency order for the courts authorization for them to convey the Subject Property to a third party with whom they had entered into a purchase and sale agreement, and a request for adjudication of Plaintiffs motion for endorsement of lis pendens. After hearing, the court issued an order on March 29, 2015, denying the Slovers motion for injunctive relief which would have prevented Defendants from selling the Subject Property and approving Plaintiffs request for endorsement of lis pendens. The court denied Defendants special motion to dismiss. The judicial endorsement of the memorandum of lis pendens issued on March 31, 2015.
Defendants moved for reconsideration of the courts denial of the special motion to dismiss and moved to dissolve the lis pendens on April 9, 2015. On the same date, Defendant Walter also moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c), arguing as a matter of law that the Slovers never formed a valid contract with him, nor did they reasonably rely, to their detriment, on any representations made by Walter. The court denied Defendants motions for reconsideration and dissolution of the lis pendens on April 30, 2015, and scheduled a hearing, allowing time for briefing, on the motion for judgment on the pleadings for June 11, 2015. The court allowed Walters Motion for Judgment on the Pleadings on June 12, 2015, effectively removing Walter from the case.
Josephine moved for summary judgment on July 8, 2015. In accordance with the courts prior discovery order, the court scheduled a hearing on the motion on October 6, 2015, giving time for the filing of briefs. After the hearing, at which both parties were heard, the court took the matter under advisement. The summary judgment record includes the parties briefs and submissions as well as affidavits and sixty-six exhibits, including depositions, all filed in accordance with Land Court Rule 4. The following material facts are not in dispute:
1. Defendants Josephine Carpenter (Josephine) and Walter W. Boyd, Jr. (Walter) are siblings who were each deeded a one-half interest in property located at 100 Main Street in Nantucket (Subject Property) from their parents by deed dated August 31, 1978, recorded June 25, 1981, with the Nantucket County Registry of Deeds, in Book 183, at Page 122.
2. In 1981, Josephine and Walter each acquired a one-half interest of the parents estates, including a residence in Bethesda, Maryland and all its contents (Maryland Personalty).
3. Plaintiff Katherine Slover (Katherine) is Josephines daughter and is married to Plaintiff William Slover.
4. In 2000, Josephine, Walter and the Slovers executed a long-term lease (Lease) of the Subject Property. Josephine signed the Lease on April 1, 2000. Walter signed on June 13, 2000, and the Slovers signed on July 1, 2000. Under the Lease, the Slovers, as tenants, agreed to pay a yearly rent of $48,000.00 to Walter and Josephine as landlords, for a ten-year term, commencing January 1, 2001 and expiring December 31, 2011, with a provision allowing for one ten-year term extension, if both sides agreed. After the initial year of the tenancy, the Lease called for the rent to increase by 1.5 percent each year. The Lease also provided that either side could terminate the Lease within the first two years, and the Lease automatically terminated if Katherine dies or divorced William.
5. The Lease required the Slovers to pay all real estate taxes, utilities and insurance (public liability insurance, property damage insurance and fire and related insurance) for the duration of the Lease.
6. The Lease required that upon its termination, the Slovers would surrender the premises in as good state and condition as they were in at the commencement of the terms, reasonable use and wear thereof and damages by the elements excepted.
7. Pursuant to the Lease, the Subject Property was delivered to the Slovers in January 2001 and contained personal property co-owned by Josephine and Walter (Nantucket Personalty). The Nantucket Personalty was considered on loan to the Slovers under the Lease.
8. The Lease required that the Slovers keep all furnishings and personal property of the [Defendants] in good order and repair at the [Slovers] expense, and to replace or make good any and all damages, loss or breakage, excepting damage by fire and ordinary wear and tear through property usage. The Slovers were required to surrender and deliver up the [Nantucket Personalty] at the expiration of the Lease, and they could not dispose of the Nantucket Personalty without prior permission from Josephine and Walter.
9. Under the Lease, the Slovers would undertake no alterations to the [Subject Property] without first obtaining written permission from Josephine and Walter. The Slovers undertook and paid for several projects, including extensive roof repair, window replacements, bathroom renovations, removal of a shed and some trees on the 100 Main Street property, without written permission or advance notice or approval from either Defendant.
10. On or around August 6, 2010, the Slovers wrote to Walter and Josephine to propose a mutually acceptable, post-2010 arrangement. The Slovers proposed a new long-term lease of thirty or more years.
11. On December 17, 2011, Walters son, Valtsu Boyd (Valtsu), emailed the Slovers through Walters email account notifying them that the Lease would not be renewed and the Subject Property would revert to the common use for both the Boyd and Carpenter families on January 1, 2012. Valtsu further wrote absolutely no renovations, upgrades [and/or] changes to the [Subject Property] are allowed without written consent from [Walter] after January 1, 2012.
12. After the expiration of the Lease, the Slovers continued to occupy and use the Subject Property without paying rent to Josephine or Walter.
13. On May 2, 2012, Josephine wrote to the Slovers stating [a]s you know, I want you to be using [the Subject Property], however these are the questions I dont want to ask but should, since your contract doesnt include them. Josephine further stated Im grateful and full of admiration for the job youve done caring for and keeping up [the Subject Property], all its belongings and those also in Potomac. Im appreciative, too, of your paying the expenses and taxes, and the lease money, has been a great help. See Pls. Rec. App. Ex. 6. [Note 5]
14. On September 2, 2012, William emailed Walter with an offer to purchase Walters one-half interest in the Subject Property for $2.15 million.
15. On January 10, 2013, William emailed Attorney Charles Hobbs (Hobbs), a partner with Hobbs, Straus, Dean & Walker in Washington, D.C., who had represented Josephine since 1989 as her family attorney. Because, in the Slovers opinion, they had been unable to successfully negotiate with Walter, the Slovers determined that discussions with Josephine would provide more positive prospects for constructive action.
16. On January 10, 2013, William emailed Josephine, stating that the situation with Walter [was] untenable. William further stated [t]his may be an uncomfortable idea for you but what I am about to suggest would put you on the path to taking care of some estate planning and will ensure that 100 Main will stay in the family . . . . If you will deed your side of the house to Katherine . . . that will help prevent the situation that you and your brother found yourself in after the passing of your mother, it would determine a basis for the house, give us leverage over Walter, plus we could temporarily borrow money against the house in which to pay for Walters half.
17. On January 11, 2013, Hobbs emailed the Slovers stating that Josephine was willing to gift deed her one- half interest in the Subject Property to Katherine.
18. On January 16, 2013, Attorney Kenneth Gullicksen (Gullicksen), representing the Slovers, mailed Hobbs a letter with a proposed gift deed attached. The letter stated [a]ssuming Mrs. Carpenter wants to proceed, please obtain her signature on the deed, ensure that is notarized, and return it to me for recording. This proposed deed was never signed by Josephine.
19. On March 22, 2013, Hobbs emailed William that, after discussions with Jyothi Rao (Rao), a Canadian tax specialist providing assistance to Hobbs and Josephine, Hobbs had learned that the Canadian tax on the gift deed to Katherine would be about 23% or approximately $500,000. William responded via email that, as a result, he and Katherine had decided to proceed with [their] plan to enter into a long- term lease agreement with [Josephine] as a more viable option.
20. On March 29, 2013, William emailed Rao, thanking her for her input and stating that, based on their recent communications with Rao and Hobbs regarding the potential tax implication of a gift deed to Katherine, he and Katherine had decided to maintain the status quo insofar as [Josephines one-half] interest is concerned so that [they] could turn [their] full attentions to the resolution of matters with [Walter].
21. On April 17, 2013, Hobbs drafted and sent to the Slovers a memorandum of understanding (MOU), stating [h]ere is the agreement approved [the] day before yesterday by [Josephine], Katherine and [William].
a. The first paragraph of the MOU states: [Josephine] will gift deed her half interest in 100 Main Street, Nantucket, to Katherine.
b. The second paragraph of the MOU states: Walter (not a party hereto) has declared his intention to sell his half interest in 100 Main Street to Katherine if a price can be agreed upon, and Katherine has agreed to purchase the same if a bank loan can be arranged to finance it.
c. The third paragraph of the MOU states: [t]o pay Walter the agreed price, [William] will attempt to arrange a bank loan on 100 Main, secured by both halves of 100 Main which will be 100% owned by Katherine.
d. The fourth paragraph of the MOU states: [t]his transaction, if successfully completed, is expected to trigger a Canadian tax upon [Josephine] of about 23% of the fair market value of her half of 100 Main. That fair market value is the price Walter agreed to accept for his half, which is worth the exact same as [Josephines] half (disregarding any multiple-owner discount). [William] and Katherine agree to put the full tax amount in escrow, to be paid to the Canadian authorities when due.
e. The fifth paragraph of the MOU states: [t]he parties are aware that there is extensive family property stored at 100 Main Street and at Katherine and [Williams] River Road home in Potomac, Maryland. Katherine intends to be responsible (as she has heretofore) to manage the disposition and accounting for such property to Walter and Jody, [as] soon as reasonably possible.
22. The MOU contained signature lines for William, Katherine and Josephine.
23. Josephine never signed the MOU, but Katherine and William did.
24. In or around 2013, the Slovers placed the Nantucket Personalty in storage facilities.
Eviction and Personalty Disputes
25. On October 11, 2013, Walter, through counsel Attorney John Bonistalli, sent the Slovers a Notice to Quit the Subject Property and requested the return of Mr. Boyds personal property.
26. On November 6, 2013, Walter, through counsel, requested that the Slovers vacate the Subject Property on or before November 30, 2013, and stated he would initiate a summary process action if they failed to do so. Walter also requested the return of any personal property that the Slovers had removed from the Subject Property.
27. On November 15, 2013, Walter, through counsel, reiterated his demand that the Nantucket Personalty be returned to the Subject Property. Walter also enclosed an updated opinion of the value of the Subject Property, in the range of seven million dollars.
28. On February 5, 2014, Walter, through counsel, sent a follow-up letter to the Slovers regarding the Nantucket Personalty, requesting that all personal property removed from the Subject Property be returned.
29. On April 8, 2014, Josephine wrote to the Slovers, stating she has never waivered [sic] in [her] intention that Katherine get [her] one-half of [the Subject Property]. However, the tax situation puts a heavy burden on [her] deeding [Katherine] that one-half until after [she] dies.
30. On April 17, 2014, Attorney Scott Lang (Lang), counsel at the time for the Slovers, emailed Katherine an update on his discussions with Josephine and Walter. Lang stated [f]or whatever reason, the personal property appears now to be a bigger issue than purchasing the house, and both [Katherines mother and uncle] have made resolving the personal property a contingency to buying the house.
31. Later on April 17, 2014, Katherine emailed Lang that she would only agree to turn the [Maryland Personalty and Nantucket Personalty] over . . . in exchange for a contract on the [Subject Property].
32. On June 9, 2014, Josephine and Walter wrote to the Slovers, offering them the first option to purchase the Subject Property and giving them until June 16, 2014, to respond. Josephine and Walter also stated that the personalty from Maryland and Nantucket held by [the Slovers] needs to be transferred to [their] joint custody and control before . . . any sale of [the Subject Property] will be considered.
33. Josephine and Walter did not receive a response from the Slovers before June 16, 2014.
34. On June 15, 2014, Josephine and Walter sent the Slovers a second letter, offering the Slovers the opportunity to buy the Subject Property for six million dollars. They also offered the Slovers twelve months in which to acquire the funds necessary to complete the purchase, and asked that the Slovers respond on or before June 18, 2014.
35. Josephine and Walter did not receive a response from the Slovers before June 18, 2014.
36. On July 29, 2014, Walter and Josephine forwarded a purchase and sale agreement to the Slovers with a purchase price of six million dollars.
37. The Slovers countered Walter and Josephines offer to sell the Subject Property for $6,000,000 with an offer to purchase it $5,400,000.
38. On July 30, 2014, Attorney Rhoda Weinman (Weinman), counsel for Walter and Josephine, emailed Lang, rejecting the $5,400,000 counteroffer and reiterating they would not accept less than $6,000,000. Lang replied the same day stating [t]here will not be an agreement.
39. On August 18, 2014, Walter and Josephine initiated a summary process eviction action against William Slover in Nantucket District Court.
40. On September 3, 2014, Lang advised Defendants counsel that Katherine had asked that [he] hold the keys to the Nantucket storage unit in escrow until the issues with [the Subject Property] and the personal property [are] resolved.
41. On September 8, 2014, Walter and Josephine wrote to Lang directly, requesting the return of their personalty. A second request was sent to Lang on October 7, 2014, by counsel for Walter and Josephine.
42. On October 17, 2014, Lang responded to the October 7th letter, stating that the Slovers have never disputed who owns the personal property and have continually stated they are happy to remove the personal property from the storage unit upon resolution of the [Subject Property] and other issues.
* * * * * *
The standard of review for summary judgment is well-established. Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. Attorney General v. Bailey, 386 Mass. 367 , 37071 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). The facts must be viewed in the light most favorable to the Slovers, as the non-moving parties. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).
I. Statute of Frauds
The first issue to be decided is whether the parties merely engaged in negotiations regarding the purchase of the Subject Property, or whether their dealings, carried out primarily via letters, emails and communications between themselves and through counsel, created a binding and enforceable contract for the purchase and sale of the Subject Property. The Slovers claim that the memorandum of understanding (MOU), combined with the alleged representations of Josephines counsel, constitutes an enforceable contract sufficient to satisfy the Statute of Frauds.
Josephine disagrees, maintaining that any communications between the parties were merely negotiations intended to hash out the various options regarding a purchase of the Subject Property by the Slovers. Josephine asserts that no communication from her or her attorney was meant to bind anyone, and could not have reasonably been construed as such. The only offer that could have risen to an enforceable contract, had it been accepted, was Josephine and Walters offer on July 19, 2014, to sell the Subject Property for $6,000,000, in the form of a purchase and sale agreement submitted to the Slovers. In Josephines view, this offer was rejected by the Slovers, who counter-offered with a reduced price, and Josephine ultimately changed her mind on conveying or gifting the Subject Property to Katherine.
a. The MOU is Not a Signed Document that Satisfies the Statute of Frauds
The formation of a valid contract requires an offer, acceptance of that offer, consideration, and sufficient terms laying out the rights and obligations of the parties. Contracts for the sale of land, whether by oral promise or written agreement, are subject to additional requirements under the Statute of Frauds and are enforceable only if they are evidenced by a writing that includes the deals essential terms and is signed by the party against whom enforcement is sought in this case, Josephine. See G. L. c. 259, § 1 (stating [n]o action shall be brought . . . [u]pon a contract for the sale of lands, tenements, hereditaments or of any interest in or concerning them . . . [u]nless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.) The memorandum need not be a formal contract, A.B.C. Auto Parts, Inc. v. Moran, 359 Mass. 327 , 329 (1971), and the signature of a duly authorized agent, rather than the party to be charged, is sufficient to be binding. G. L. c. 259, § 1. When the existence of a contract is in issue, the party seeking performance under the alleged contract bears the burden of proof of its existence. Canney v. New England Tel. & Tel. Co., 353 Mass. 158 , 164 (1967).
The Slovers rely heavily on the MOU as a document sufficient to satisfy the Statute of Frauds, specifically its introduction and first paragraph which states:
[t]he below signatories . . . do hereby agree that this Memorandum of Understanding reflects their agreement and that they intend to act in accordance with it. 1) Jody will gift deed her half interest in 100 Main Street, Nantucket, to Katherine.
The MOU was attached to an email sent to William by Josephines long-time attorney, Charles Hobbs. Hobbs wrote [h]ere is the agreement approved day before yesterday by Jodie, Katherine and [William]. Taken together, the Slovers contend that Hobbss e mail and the MOU, with Hobbs acting as Josephines duly authorized agent, with the power to bind her to the terms of the MOU, constitute a contract.
However, this court finds that the MOU does not constitute a valid written contract. Josephine never signed the MOU, nor did Hobbs. The Slovers maintain that Hobbs, emailing the MOU as Josephines attorney and agent, bound her to its terms, with the email satisfying the signature requirement. An attorneys implicit authority in contract dealings is more circumscribed than the broad authority impliedly granted to an attorney representing a client throughout the course of litigation. Torrao v. Cox, 26 Mass. App. Ct. 247 , 252 (1988). For instance, absent express authorization, an attorney has no power to bind a client by his assent to substantial modifications in contract terms. Id. The Slovers have not presented evidence or documentation demonstrating Hobbs authority to bind Josephine to the terms of the MOU, such as a special power of attorney. Hobbs himself denied having such authority. [Note 6]
Emails between the parties may create a binding contract that satisfies the Statute of Frauds, provided the emails contain all essential terms, even in the absence of a formal signature. See, e.g., Feldman v. Coxall, 2012 WL 3854947 at *6 (Mass. Super. Ct. May 22, 2012); 30 Mass. L. Rptr. 150 (allowing certain parts of an email to satisfy the signature requirement of the Statute of Frauds); Shattuck v. Klotzbach, 2001 WL 1839720 at *4 (Mass. Super. Ct. Dec. 11, 2001); 14 Mass. L. Rptr. 360 (stating email negotiations may satisfy the Statute of Frauds even when the emails lacked a formal script signature). Even if Hobbs was authorized to bind Josephine to a contract, and the Slovers had adequately proven such authorization, the MOU lacks any electronic signature from Hobbs. In addition, the cases cited above involved multiple emails which ultimately demonstrated a meeting of the minds as to the essential terms of the agreement between the parties. In the instant case, there is no such evidence of a meeting of the minds that might allow a court to accept the email exchange and proposed MOU as sufficient to defeat the Statute of Frauds. Even the title Memorandum of Understanding speaks to a more preliminary stage in discussions and negotiations than a document which is meant to memorialize the final terms of an agreement between the parties.
A binding agreement is established when (1) the parties manifest the intent, viewed objectively, to be bound at the time of contract formation, notwithstanding either party's subjective intent; (2) the parties agree on the material terms of the contract; and (3) the agreement is supported by mutual consideration. See Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875 , 878 (2000); see also McCarthy v. Tobin, 429 Mass. 84 , 87 (1999) (stating that the controlling fact is the intention of the parties). While not all terms of the agreement must be precisely specified, and undefined or unspecified terms will not necessarily preclude the formation of a binding contract, Lafayette Place Assocs. V. Boston Redev. Auth., 427 Mass. 509 , 517-518, n.9 (1998), the parties must have at least progressed beyond imperfect negotiation. Id. at 517. The required meeting of the minds is reached when the parties hold the same interpretation of the same contract terms at the same time.
[T]here is no surer way to find out what parties meant, than to see what they have done. Pittsfield & N.A.R. Corp. v. Boston & A.R. Co., 260 Mass. 390 , 398 (1927) (citation omitted). In this case, the conduct of the parties demonstrates that the MOU was not viewed as a binding contract. They had engaged in extensive communications regarding the terms outlined by the MOU, and continued to do so after April 15, 2013. The MOU consists of one single email. Included in the summary judgment record are numerous other emails and letters both pre- and post-dating the MOU. The record also includes affidavits from several of those involved testifying as to the various options they pursued. They reference a wide range of issues and possible solutions to the lease and/or sale of part or the entirety of the Subject Property. At some point in May 2013, for example, it was conveyed to Hobbs that the Slovers were unable to escrow the amount due for Canadian taxes. The MOU, taken together with this accompanying correspondence and the actions of the parties following its drafting, cannot be viewed as demonstrating a meeting of the minds as to the essential material terms of a contract.
The MOU is vague on specific contract terms. While, as noted above, it is not required that all terms of the agreement be precisely specified, Situation Mgmt. Sys., Inc., 430 Mass. at 878, it is essential to the existence of a contract that its nature and the extent of its obligations be certain. Caggiano v. Marchegiano, 327 Mass. 574 , 579 (1951). The first paragraph of the MOU states that Josephine will gift deed her interest in the Subject Property to Katherine, but does not mention a specific date or timeframe. [Note 7] There is no timeframe indicated by which the Slovers would put the estimated tax payment in escrow. [Note 8]
Additionally, the MOU references future agreements that have yet to be finalized. While it is true that an action may be brought upon a contract which contemplates another more formal contract, Drummond v. Crane, 159 Mass. 577 , 579 (1893), an agreement to enter into a contract which leaves the terms of that contract for future negotiation is too indefinite to be enforced. Caggiano, 327 Mass. at 580. The second paragraph of the MOU references an arrangement with Walter in which Katherine would purchase his half interest in the Subject Property, if a price [could] be agreed upon and if a bank loan [could] be arranged to finance it. Walter is not a signatory to the MOU. The terms outlined in this paragraph relating to any future agreement or arrangement with Walter are devoid of any timeframe and include terms which are too indefinite. See, e.g., Shayeb v. Holland, 321 Mass. 429 , 432 (1947) (stating that one of the essential terms of an oral contract for land is the price for the parcel).
b. The MOU Represents Josephines Contingent Intent to Convey Her Interest in the Subject Property as a Gift and Did Not Constitute an Enforceable Contract
The first paragraph of the MOU states that Josephine will gift deed her half interest in the Subject Property to Katherine. Katherine and William, in the fourth paragraph, agree to place the full amount of Josephines Canadian tax liability in escrow, to be paid when due. See Fact Paragraph 29 (referencing a letter from Josephine in which she states she had never wavered in her intent that Katherine receive her interest, although that expressed intention could also have been referring to a testamentary disposition). [Note 9] Katherine, William and Josephine discussed transferring the property as a gift, with no financial consideration recited. The fact that the Slovers agreed to pay the taxes attributable to the transfer does not fundamentally alter the nature of the contemplated gift. See Fuss v. Fuss, 373 Mass. 445 , 449450 (1997). A simple promise to make a gift is unenforceable, and Josephine remained free to change her mind before any physical transfer, as apparently she did.
II. The Slovers Did Not Reasonably Rely to Their Detriment on Any Representations by Josephine So She is Not Estopped from Pleading the Statute of Frauds as a Defense
Alternatively, the Slovers argue that even if the MOU and accompanying communications fail to satisfy the Statute of Frauds, their detrimental reliance on the MOU proffered by Josephines counsel, as well as their reliance on Josephines various promises, justifies an exception to the Statute of Frauds in this case. They allege Josephine gave them false assurances that she intended to convey her one-half interest in the Subject Property to Katherine, which the Slovers relied on to their detriment in deciding to expend thousands of dollars on maintenance and repairs, as well as storage costs for the Maryland and Nantucket Personalty.
A plaintiffs detrimental reliance on, or part performance of, an oral agreement to convey property may estop the defendant from pleading the statute of frauds as a defense. Nesralla v. Peck, 403 Mass. 757 , 761 (1989); Barber v. Fox, 36 Mass. App. Ct. 525 , 530 (1994), citing Restatement (Second) of Contracts, § 129 (1979). A court may order specific performance despite the absence of a written agreement to remedy the infliction of an unjust and unconscientious injury and loss. Nesralla v. Peck, 403 Mass. at 761, quoting Glass v. Hulbert, 201 Mass. 24 , 36 (1869). [Note 10] Circumstances that may give rise to such a remedy require 1) a representation intended to induce reliance on the part of a person to whom the representation is made; 2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission. Bongaards v. Millen, 440 Mass. 10 , 15 (2003), citing Cleveland v. Malden Sav. Bank, 291 Mass. 295 , 29798 (1935). The party asserting detrimental reliance carries the heavy burden of proving all three elements. Sullivan v. Chief Justice for Admin. & Mgmt., 448 Mass. 15 , 28 (2006). However, illusory reliance on an oral agreement to convey property does not rise to a level which estops a defendant from pleading the Statute of Frauds. Nesralla, 403 Mass. at 761.
The Slovers claim that Josephine, by repeatedly stating her intention that Katherine would receive Josephines interest in the Subject Property, induced Katherine and William to spend considerable time and money improving and repairing a property they expected to own in the future. The Slovers maintain they made several improvements to the Subject Property, paid almost all expenses and taxes relating to the Subject Property, and stored the Nantucket and Maryland Personalty at their own expense solely in reliance on Josephines expressed intent to convey her one-half share to Katherine.
This court disagrees that the Slovers detrimentally relied on any representations by Josephine. The record shows that, despite numerous attempts over the years, the Slovers were unsuccessful in acquiring Josephines interest in the Subject Property, through either a gift deed or outright purchase, although both avenues had been discussed at length among the parties. Instead, the Slovers entered into a ten-year lease agreement that required an annual rent, and required the Slovers, as tenants, to pay all real estate taxes and utilities and to purchase and maintain public liability and property insurance. The Lease also required the Slovers to provide good and reasonable care to any furnishings in the house at the time they took possession under the Lease, stating such furnishings would be considered on loan. The Slovers were to keep all furnishings and personal property of [Josephine] in good order and repair at [the Slovers] expense. The Lease also states that the Slovers would undertake no alterations to the Subject Property without first obtaining written permission from Josephine and Walter, and would surrender the Lease upon termination of the term, in as good state and condition as they were in at the commencement of the term, reasonable use and wear thereof and damages by the elements excepted.
The Slovers argue the specific repairs they made, such as those made to the roof and electrical work, were not considered alterations, but necessary maintenance and repairs. [Note 11] They maintain Josephine was aware of much of the work performed on the Subject Property, citing as an example a letter written by Josephine in May 2012. See fact paragraph 13. The court does not view the language in this letter as an inducement or encouragement for the Slovers to undertake improvements or alterations or as an acknowledgment that the Slovers deserved compensation in the form of an interest in the Subject Property.
Contrary to Hurtubise v. McPherson, 80 Mass. App. Ct. 186 (2011), cited by the Slovers, this was not a situation in which Josephine personally observed the Slovers actions and silently acquiesced to their repairs and expenses. Josephine was not a resident on Nantucket during the Lease term and the summary judgment record indicates that she did not visit there during the ten-plus years the Slovers occupied the Subject Property. [Note 12] The Slovers also argue they entered into the Lease itself in reliance upon Josephines promise to eventually convey her interest. However, the Lease, which was drafted by William, does not contain an option to purchase, or reference to any right to purchase or otherwise receive any interest in the Subject Property. On the other hand, it does contain a provision allowing for the extension of the Lease should both parties agree, as well as a surrender clause providing that the Slovers would relinquish the Subject Property with all Landlords furnishings and personal property at the expiration of the Lease. The summary judgment record establishes that the Slovers took what they could get in terms of exclusively occupying the Subject Property, and a Lease was the best deal they were able to strike at the relevant times.
In order to avoid the Statute of Frauds under a theory of detrimental reliance, it must be established that the Slovers, in reasonable reliance on the [oral] contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement. Barber, 36 Mass. App. Ct. at 530. On this record, the Slovers have not shown such reasonable detrimental reliance. [Note 13]
III. Quantum Meruit
Having determined that no enforceable contract existed between Josephine and the Slovers, the remaining question is what, if anything, the Slovers may be entitled to recover. One who has expended valuable services or expenses pursuant to an oral agreement that cannot be enforced due to the Statute of Frauds may recover the full value of his or her services in quantum meruit. The underlying basis for awarding quantum meruit damages in a quasi-contract case is unjust enrichment of one party to the unjust detriment to the other party. Salomon v. Terra, 394 Mass. 857 , 859 (1985).
To recover under the theory of quantum meruit, a claimant must prove that 1) he or she conferred a measurable benefit upon the other party; 2) he or she reasonably expected compensation from the other party; and 3) the other party accepted the benefit with the knowledge, actual or chargeable, of the claimants reasonable expectation. Finard & Co, LLC v. Sitt Asset Mgmt., 79 Mass. App. Ct. 226 , 229 (2011). Recovery under this theory is derived from the principles of equity and fairness and is allowed where there is substantial performance but not full completion of the contract. J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789 , 793 (1986).
The Slovers fail to demonstrate on the record that Josephine had actual knowledge, or could be charged with knowledge, of the Slovers expectations to be compensated for their services. Josephines statement in the May 2, 2012 letter to the Slovers that they should be fairly paid for their trouble is taken from a document written approximately ten years after the Lease commenced, and cannot be viewed as a statement demonstrating knowledge of any expectation of compensation for expenses already incurred for the unauthorized work that was done to make the premises more habitable during the term of the Lease. The alleged benefits conferred upon Josephine by the Slovers were, in large measure, obligations performed, as required, as tenants under the Lease, for which Josephine expressed appreciation. As to the Slovers claim that they safeguarded and stored the Maryland Personalty at their own expense in exchange for Josephines gift of her interest, the Slovers themselves have stated they initially took this responsibility out of goodwill, as opposed to any reasonable expectation of compensation. Later, the Maryland and Nantucket Personalty became a flashpoint among the parties. By the Slovers own admissions, the return of the personalty to Josephine and Walter became a bargaining chit in the resolution of this case, [Note 14] and, according to Josephine and Walters counsel, the return of the personalty became a contingency to the sale of the Subject Property to the Slovers. [Note 15]
The MOU and transmittal from Hobbs did not form a contract for the sale of Josephines interest in the Subject Property. The vagueness of the MOU stands in stark contrast to the express provisions of the Lease, which provide a solid explanation for much of the action taken by the Slovers between 2001 and 2011. Therefore, there is no writing sufficient on its own to satisfy the Statute of Frauds, and the numerous communications among the parties and their counsel do not cumulatively give rise to a valid contract. The oral and written communications instead evince a complicated series of offers and counter-offers as well as statements of possibilities, intention and aspiration. These varied from time to time over the years but never ripened into an agreement between Josephine and Katherine (with or without William.) To the extent there were any promises by Josephine to convey, gift or devise her interest in the Subject Property, they were not enforceable as a contract. With respect to the breach of contract claim, the court did not need to look beyond the documents presented to dispose of the contract question as a matter of law, in Defendants favor.
With respect to the counts for detrimental reliance and quantum meruit, the record was also partial in the sense that it was clear that there were many oral and written communications not presented as part of the record. Intention, tone of communication, and the reasonableness of peoples actions and reactions was put in question by the nature of the legal theories and equitable remedies sought. For that reason, this court gave much consideration as to whether it was proper to reach the issues of quantum meruit and detrimental reliance at the summary judgment stage, without an opportunity to assess credibility of the parties and others. This court however is convinced that the parties have put forward the best record each side could amass in support of its legal position, and has concluded that it need not rely on, and does not rely on, the assessment of the parties credibility in order to rule on the issues presented. The Slovers have not proven the necessary elements of either detrimental reliance or quantum meruit.
Accordingly, Defendant Josephine Carpenters motion for summary judgment is ALLOWED, and Plaintiffs Complaint will be DISMISSED, with prejudice.
Judgment to issue accordingly.
[Note 1] By order dated June 6, 2015, Walter W. Boyds Motion for Judgment on the Pleadings was allowed, dismissing the counts against him.
[Note 2] For ease of reference in this decision, the parties are referred to by their first names. Josephine is sometimes referred to as Jodie.
[Note 3] Also known as Dusty.
[Note 4] In a three-count complaint, the Slovers pleaded breach of contract in Count I; injunctive relief in Count II; and quantum meruit in Count III.
[Note 5] Josephines reference to a contract is not clear from the context, but the letter post-dates the expiration of the Lease, which had not been extended.
[Note 6] See, Hobbs Dep. 52:10-14, April 23, 2015, attached as Ex. 20 in Pls. Record App. (Q: Did you have authority to make that statement on behalf of [Josephine] Carpenter? A: I wouldnt put it that I had authority[.]).
[Note 7] For example, the material terms of a contract for the purchase and sale of real property, rather than a gift, include an adequate description of the property; the purchase price; and the closing date. See McCarthy, 429 Mass. at 87.
[Note 8] See fact para. 21 (d) above.
[Note 9] Pls. Rec. App. at 83 (Josephine Dep. 27:431:12).
[Note 10] A party seeking specific performance should demonstrate certain factors in order to recover under this remedy, such as the partys possession of the land, the furnishing of consideration (such as a portion of a purchase price), and improvements made to the property in reliance on the oral contract to convey land. Id. at 762. As discussed in further detail, supra, the Slovers failed to establish the required elements. The Slovers never paid a purchase price, or even a portion of a purchase price for the Subject Property. They took possession of the premises, but did so pursuant to a lease agreement.. While they made specific repairs and improvements, this alone would not constitute sufficient part performance to surmount the Statute of Frauds and justify specific performance. Dexter v. Winslow, 254 Mass. 407 , 410 (1926). Most importantly, the Slovers were required under the Lease to make most, perhaps all, of the payments and repairs they made during the ten year term of the Lease.
[Note 11] See Pls.' Rec. App. at 344 (William Dep., at Vol. II, p. 302:5-6).
[Note 12] See Pls.' Rec. App. at 115 (Josephine Dep., 159:21-160:3).
[Note 13] The Slovers maintain the repairs and improvements they undertook were not alterations requiring written permission under the Lease, but necessary to make the Subject Property habitable. Under the Lease however, the Slovers only needed to surrender the Subject Property in as good state and condition as they were in at the commencement of [the Lease], reasonable use and wear thereof and damages by the elements excepted. Either the work they did on the house came within their responsibility under the Lease (not to commit waste); or it was done gratuitously; or it required permission from Josephine and Walter, which was not obtained.
[Note 14] See fact paragraphs 40-42, Lang letter advising Josephine and Walters counsel Katherine has asked that we hold the keys to the Nantucket storage unit [where the Nantucket personalty was stored] in escrow until the issues with 100 Main Street and the personal property is resolved.
[Note 15] See E mail from Attorney Lang to Katherine dated April 17, 2014 lastly, both your mother and uncle have made resolving the personal property a contingency to buying the house.