MISC 17-000616

November 8, 2017

Middlesex, ss.



Plaintiff Robert J. Cabral (Plaintiff) initiated this action on October 27, 2017, seeking specific performance of a contract for the sale of real estate, specifically a single-family home owned by Defendant, located at 19 Harriman Street in Hudson (Property). Plaintiff, who is an attorney and real estate broker, alleges text messages he exchanged with Defendant's real estate agent regarding the price of the Property constituted a valid and binding agreement. Defendant denies the real estate agent had any authority to accept any offers on her behalf. Plaintiff, alleging agreement regarding price, memorialized that price and other material terms into an Offer form, which he signed and forwarded to the broker for Defendant's signature (Offer). Plaintiff is seeking to enforce that Offer, which was never signed by Defendant nor anyone on her behalf.

Defendant filed an opposition to the endorsement of a memorandum of lis pendens on November 2, 2017, as well as a Special Motion to Dismiss pursuant to G. L. c. 184, §15(c). A hearing was held November 3, 2017, at which all parties were heard. For the reasons stated below, this court DENIES Plaintiff's Motion for Endorsement of a Memorandum of Lis Pendens and hereby ALLOWS Defendant's special motion to dismiss under G. L. c. 184, §15 (c).

I. Standard of Review

G. L. c. 184, § 15(c) provides: "party may . . . file a special motion to dismiss the claimant's action if that party believes that the action or claim supporting the memorandum of lis pendens is frivolous." Under G. L. c. 184 §15(c) (Lis Pendens Statute), the court must grant a special motion to dismiss if it finds:

the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the Statute of Frauds.

The standard of review for a special motion to dismiss is the functional equivalent of a motion dismiss under Mass. R. Civ. P. 12(b)(6), see Faneuil Investors Grp. v. Bd. of Selectmen of Dennis, 458 Mass. 1 , 2 (2010), or summary judgment if matters outside the pleadings are made part of the record, as they are here. In either situation, the court does not weigh evidence, assess credibility, or find facts; it only applies the law to the undisputed material facts. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party, here, Plaintiff. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). If a motion is granted under G. L. c. 184 §15(c), the court must award costs and attorney's fees to the aggrieved party. McMann v. McGowan, 71 Mass. App. Ct. 513 , 519 (2008).

In accordance with the requirements of G. L. c. 184, § 15(c), "[i]n ruling on the special motion to dismiss the court shall consider the verified pleadings [Note 1] and affidavits" submitted by the parties. Plaintiff filed his affidavit, and one of Paul Leonardo, Plaintiff's cousin, according to Plaintiff, who was an interested buyer who also made an offer to buy the Property, at Plaintiff's suggestion, during the negotiations between Plaintiff and Defendant's real estate broker, Karen Lowe. Defendants filed affidavits of Karen Lowe and Daunielle McNeil, the personal representative of the estate of her late father, Robert E. Drouin.

Plaintiff's claim that a valid enforceable contract was formed hinges on an exchange of text messages between himself and Karen Lowe. These text messages were exchanged before Defendant officially listed the Property for sale, following Plaintiff's inquiry to Ms. Lowe when he saw her on the Property preparing to install her real estate sign alerting the public the house was for sale. Ms. Lowe informed Plaintiff in the exchange that she had not yet been retained by Defendant and needed to consult with her before any offer could be accepted. On this record, Plaintiff has failed to demonstrate that Ms. Lowe was even authorized to act on Defendant's behalf and accept offers for the Property. Thus, this court finds that the threshold question of whether an agreement was reached by parties authorized to bind the parties has not been established. Additionally, even if Ms. Lowe was authorized by Defendant to accept offers, Plaintiff failed to demonstrate that the text messages contained the material terms necessary to form a binding contract, and the party to be charged (Defendant through an authorized agent) did not sign her text. Within couple of minutes following what might have been construed as agreement as to price (but no other material matters), Ms. Lowe reiterated that she did not have authority to bind Defendant. This material fact conspicuously was absent from both the Complaint and Plaintiff's affidavit. Thus, even with inferences drawn in his favor, Plaintiff has not carried his burden with respect to either the formation of a contract to buy the Property or the enforceability of the Offer later proffered by him to Ms. Lowe, signed by him but never signed by Defendant or any one on her behalf. [Note 2]


For the reasons stated above, and those discussed at the November 3rd hearing, the court finds and rules that the Complaint is frivolous because (1) it is devoid of any reasonable factual support; (2) it is devoid of any arguable basis in law; and (3) it is subject to dismissal based on a valid Statute of Frauds legal defense. Accordingly, the defendants' special motion to dismiss is ALLOWED.

G. L. c. 184, § 15(c) further provides, "[i]f the court allows the special motion to dismiss, it shall award the moving party costs and reasonable attorneys' fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery." Accordingly, it is:

ORDERED that Defendant may file a motion for costs and attorney's fees supported by affidavits and other sufficient documentary support regarding monies sought, and request a hearing, but must do so not later than November 17, 2017. If no motion is received by that date, judgment will enter on the merits, dismissing this case; Assuming Defendant's motion is timely filed, Plaintiff will have seven days to respond and the court will set a date for hearing, unless waived by both parties; and it is further

ORDERED that upon a determination by the court regarding costs and attorneys' fees, judgment is to enter DISMISSING the Complaint with prejudice. A case management conference scheduled for November 28, 2017 at 12:00 is cancelled.

So ordered.


[Note 1] Plaintiff did not file a verified Complaint, but filed an affidavit setting forth most of the allegations set forth in the complaint.

[Note 2] As Personal Representative of the Estate of her father, Defendant also required a License to Sell from the Probate and Family Court.