OCEAN CITY DEVELOPMENT, LLC v. LUIZA BARROS

I. INTRODUCTION

On January 7, 2016 Ocean City Development, LLC ("Plaintiff") filed this complaint claiming breach of a contract for the sale of real property, and asking the court to order specific performance of that agreement. Plaintiff claims that under a Purchase and Sale Agreement ("P&S Agreement") signed October 21, 2015, Plaintiff agreed to purchase, and Luiza Barros ("Defendant") agreed to sell, the improved property ("Property") at 25 Saint Marks Road, Dorchester, Boston, Suffolk County, Massachusetts. [Note 1] Defendant has owned the Property, which contains three residential units, since 1997. Plaintiff claims that while it has been and remains ready, willing, and able to purchase the Property according to the terms of the P&S Agreement, Defendant, by refusing to execute a deed transferring the Property, has breached the P&S Agreement. Defendant denies that there exists any binding contract obligating her to sell the Property to Plaintiff.

After trial, I conclude, on all of the evidence I credit, that the P&S Agreement is a valid, binding, and enforceable contract, and I direct entry of a judgment requiring Defendant to perform her obligations under that contract.

II. PROCEDURAL HISTORY

Plaintiff, on January 7, 2016, filed along with the complaint an application for an ex-parte hearing on Plaintiff's motion for endorsement of a memorandum of lis pendens. The court (Piper, J.) denied Plaintiff's application for an ex parte endorsement, and issued a short order of notice. On January 12, 2016 the court held a hearing on Plaintiff's application for judicial endorsement of its memorandum of lis pendens. Despite notice, Defendant did not appear for the hearing. Following the hearing, the court (Piper, J.), finding this action affects title to real estate, pursuant to G.L. c. 184, § 15 endorsed Plaintiff's memorandum of lis pendens.

On February 9, 2016, the court held a case management conference at which Plaintiff appeared by counsel and Defendant appeared pro se. [Note 2] On February 12, 2016, the parties submitted a joint report as ordered by the court regarding their willingness to mediate this matter with a neutral. Upon review of the report, the court ordered that the parties continue with diligence and in good faith to pursue mediation of this dispute and settlement of the case, and then submit another joint report no later than March 14, 2016 concerning their settlement discussions and any scheduled mediation session. On March 15, 2016, the parties reported that they had agreed to proceed to mediation. The parties were ordered to file with the court by March 28, 2016, a report on the outcome of their mediation, and, unless that report confirmed that settlement had been achieved, the parties were ordered to appear for a status conference on March 29, 2016. On March 25, 2016, the parties reported that, despite mediation, they were unable to settle the case.

Counsel for both parties appeared for a status conference March 29, 2016. [Note 3] During that conference Defendant's counsel raised concerns about the Defendant's capacity and ability to represent herself in this litigation, and sought leave to investigate the significance of a durable power of attorney purportedly executed by Defendant in 2013 which appointed Defendant's daughter Heaven Barros as attorney-in-fact. Defendant and Plaintiff both filed reports on the significance of the durable power of attorney on April 5, 2016. On April 20, 2016, the court held a hearing on the parties' reports concerning the durable power of attorney. Defendant's counsel reported that Defendant's daughters were considering bringing an action in the Probate and Family Court Department ("Probate Court") seeking appointment of a conservator for Defendant, but that the durable power of attorney given in 2013 was sufficient to allow Heaven Barros to guide and direct counsel in defending the action on behalf of Defendant regardless of any decision of the Probate Court, if sought, regarding conservatorship. [Note 4] On the strength of this, the court (Piper, J.) found no need to appoint a guardian ad litem for Defendant, and concluded that any question regarding defendant's capacity to enter into the P&S Agreement would be addressed when the court considered the case on the merits.

The parties filed a joint motion to reschedule the tracking order deadline for discovery on June 22, 2016, which the court (Piper, J.) allowed in part, extending the close of discovery to July 30, 2016. The parties filed on July 27, 2016 a second joint motion to reschedule the tracking order deadline for discovery, which the court denied without prejudice to the parties renewing the motion as one marked for hearing at a regularly scheduled motion session. On August 2, 2016, the parties renewed the joint motion to reschedule the tracking order deadline and marked it for hearing. On August 25, 2016, following hearing, the court allowed the joint motion in part. [Note 5] Plaintiff was given leave to resume and complete the deposition of Defendant by no later than September 30, 2016, at which point discovery would close; no other discovery was indicated or authorized. Counsel for the parties appeared for a pre-trial conference on October 19, 2016 during which the court set the case down for trial. [Note 6]

The court held the first day of trial in Boston on December 20, 2016. No court reporter was present; the parties instead relied on the court's audio recording equipment. A Cape Verdean-Creole translator, Carminda Monteiro, was present at all times to interpret the proceedings. The trial resumed for a second day of taking evidence on March 3, 2017, again without a court reporter, and again with Carminda Monteiro as translator. The court heard testimony from three witnesses: Cory Mills, Luiza Barros, and Ana Fernandes. Sixteen exhibits were introduced into evidence, many without objection, all as set out in the recording of the proceedings. Following the taking of evidence at the end of the second trial day, the court suspended the trial. The court ordered the parties to file proposed findings of fact, rulings of law, and memoranda of law by April 18, 2017. Plaintiff filed proposed findings of fact, rulings of law, and a memorandum of law on April 13, 2017. On May 11, 2017, the court returned Defendant's counsel's post-trial submissions, which had been submitted beyond the established deadline, explaining by letter why they could not be accepted by the court for filing. Defendant on May 17, 2017 filed a motion for leave to file post-trial papers late. The court set down Defendant's motion to file post-trial papers late for hearing on June 6, 2017, but gave Plaintiff leave to assent to the late filing by Defendant in lieu of appearing for the hearing. On May 25, 2017 Plaintiff filed an assent to Defendant's late filing of post-trial papers. The parties by their counsel again appeared for closing arguments on July 11, 2017, no court reporter was present, and the parties stipulated to the absence of an interpreter because Defendant was not present. At the conclusion of the closing arguments, the case was taken under advisement. I now decide the case.

III. FINDINGS OF FACT

1. Defendant moved to the United States from Cape Verde in 1982.

2. Defendant has two daughters, Ana Fernandes ("Fernandes") and Heaven Barros ("Barros").

3. Defendant took and passed a United States citizenship test in English in 1989. Defendant took an English class prior to taking the citizenship test.

4. Defendant purchased the Property located at 25 St. Marks Road, Dorchester, Boston, Suffolk County, Massachusetts from Federal National Mortgage Association. The Property was conveyed to Defendant by deed dated April 28, 1997, and recorded with the Suffolk Registry of Deeds ("Registry") in Book 21376, Page 303.

5. Defendant granted a mortgage on the Property, dated April 30, 1997, to BankBoston, N.A. which was recorded with the Registry in Book 21376, Page 305.

6. Defendant granted a second mortgage on the Property, dated April 30, 1997, to BankBoston, N.A., which was recorded with the Registry in Book 21376, Page 317.

7. Defendant refinanced the Property by granting a mortgage, dated February 19, 2004, to National City Mortgage Co., recorded with the Registry in Book 33853, Page 38.

8. Defendant again refinanced the Property by granting a mortgage, dated June 12, 2006, to Mortgage Network, Inc., recorded with the Registry in Book 39811, Page 54.

9. The Property is a residential rental property with three units.

10. Defendant testified that she obtained an appraisal when she purchased the Property. I credit this testimony.

11. Defendant, acting as the lessor of the rental units in the Property, handwrote in English certain parts of residential leases for the units; these were entered into evidence. I find that on February 1, 2013 Defendant filled out portions of a lease for Apartment 3 of the Property in English and signed that lease, and that on May 17, 2013 Defendant filled out portions of a lease for Apartment 1 of the Property in English and signed that lease.

12. Defendant, through her daughter Barros, evicted one of the tenants at the Property through a summary process action prosecuted in the Housing Court during the pendency of this action. [Note 7]

13. Defendant resides at and owns of record another property at 20 Clark Street, Randolph, Massachusetts ("Randolph property"), [Note 8] which is an owner-occupied rental property.

14. From October of 2015 to August of 2016, both of Defendant's daughters resided with her at the Randolph property. Barros resided at the Randolph property at the time of trial.

15. Plaintiff is a domestic limited liability company with a principal place of business at 20 C Del Carmine Street, Suite 101, Wakefield, Massachusetts.

16. In October of 2015 Defendant received a flyer in the mail from Plaintiff. Defendant called Plaintiff's office on or about October 20, 2015 to set up an appointment to meet with a representative of the Plaintiff.

17. Defendant and Plaintiff's salesperson, Cory Mills ("Mills"), met at the Property on October 21, 2015.

18. I find, based on undisputed testimony, that all communications between Mills and Defendant were conducted in English.

19. I find based on the stipulation of the parties that Defendant was legally competent to make decisions regarding the sale of the Property in October of 2015. Nothing about the conduct of the trial, and the testimony of the Defendant during it, causes me to question the accuracy of that stipulation.

20. Mills testified that he telephoned Defendant three times before arriving at the Property because he was lost and needed her to give him directions, and that she did give him directions. I credit this testimony.

21. Mills testified that he walked with Defendant through the entire Property, including the apartments and the unoccupied basement. I credit this testimony.

22. Mills testified that Defendant informed him that she was interested in selling the Property because it was becoming too much work for her. I credit this testimony, and find that Defendant pursued sale of the Property to relieve herself of the burdens of owning and managing this rental building.

23. Mills testified that he made an initial offer of $475,000 to buy the Property "as is" with the tenants remaining in possession, to which Defendant did not agree. Mills testified that Defendant told him she wanted $500,000 for the Property. I credit this testimony.

24. I find that the defendant understood this conversation; she knew that Mills made her an offer of $475,000 and that she made a counteroffer of $500,000.

25. After Mills and Defendant walked through the house, Mills testified that he returned to his car to call Plaintiff and ask if Plaintiff would accept the purchase price of $500,000. I credit this testimony.

26. Mills testified that he received confirmation from Plaintiff to move ahead with the P&S Agreement at $500,000; the offer to purchase at this higher figure was on the condition that Defendant be responsible for evicting all of the current tenants. I accept this to be so, and find that this was consistent with the negotiations that took place between Mills and Defendant, and that she understood what was taking place.

27. I find, based on Defendant's cell phone records, that around the time Mills testified that he was speaking with Plaintiff in his car about purchasing the Property, Defendant spoke on the phone with Fernandes and Barros.

28. Mills testified that after he finished speaking with Plaintiff, he walked to Defendant's car and sat inside her vehicle to continue discussing the Property. I credit this testimony.

29. Defendant, who owns the Property in her own name alone, testified that she did not and does not need her daughters' permission to sell the Property. I accept this to be so.

30. Mills testified that he spent thirty to forty minutes going over the P&S Agreement with Defendant and that when he asked if she had any questions, she said no. I credit this testimony and find that, even if Defendant did not completely understand each term and provision of the printed parts of the P&S Agreement, she well understood that the P&S Agreement was a legally binding document obligating her to sell the Property to Plaintiff at the agreed price recited in the contract.

31. Defendant testified at trial that she believed she was signing only a receipt for the initial deposit check given to her by Mills, not the P&S Agreement. I do not credit this testimony. Rather, I find and conclude based on the evidence and testimony presented that Defendant knowingly signed the P&S Agreement after a lengthy discussion about selling the Property, understanding that she was agreeing to sell, and that she then accepted a check for a sum of money that represented a deposit towards the full agreed consideration.

32. Mills testified that he did not fill out the closing date on the P&S Agreement during this meeting because Defendant told him she wanted to speak with her daughters and come up with a plan for evicting the tenants. I credit this testimony.

33. Mills wrote the names of Barros and Fernandes on the P&S Agreement, and wrote that the P&S Agreement was pending their review. Mills testified that he included that language because Plaintiff is generally flexible with its terms and he wanted Defendant to be happy with the agreement. I credit this testimony.

34. The official P&S Agreement, retained by Mills, contains the date of signing, the parties' names, the address of the Property, the deposit amount, the purchase price, Defendant's signature, Mills' signature on behalf of Plaintiff, and the handwritten words "Anna [sic] Fernandes + Heaven Barros to review." The counterpart copy of the P&S Agreement retained by Defendant contains the date of signing, the parties' names, the deposit amount, the purchase price, Mills' signature, and "? Pending Review Anna [sic] Fernandes Heaven Barros."

35. Mills testified that the P&S Agreement kept by Plaintiff was to be the "official" document, and that a counterpart copy of the P&S Agreement was left with Defendant. I accept this to be so.

36. Mills testified that he filled in the closing date on the P&S Agreement on October 30, 2015, nine days after Defendant signed the P&S Agreement. I credit this testimony.

37. Mills testified that on October 21, 2015, after filling out the P&S Agreement and Defendant's copy of the P&S Agreement, he wrote a personal check for $1,000.00, which he gave to Defendant with instructions not to deposit or cash it until he told her to do so. I accept this to be so.

38. The check, a photocopy of which was entered as an exhibit, states in writing on its face that it was for "Deposit 25 Saint Marks Rd."

39. Defendant left the meeting with a folder containing her copy of the P&S Agreement unsigned by her but signed by Mills, and the $1,000.00 check from Mills.

40. Mills testified that at no point during any of their conversations did Defendant ask for an appraisal or indicate that she wanted an appraisal and was unprepared to be bound without one. I accept this to be so.

41. Defendant testified that she spoke with both Fernandes and Barros about meeting with Mills the same day she met with him, October 21, 2015. I credit this testimony.

42. Fernandes testified that she did not immediately look at the contents of the folder containing the P&S Agreement. I accept this to be so.

43. I credit the testimony of Fernandes that when she read through the contents of the folder and talked to Defendant about the P&S Agreement, Defendant informed Fernandes that she did not want to make a decision at that time regarding the Property.

44. Defendant's cell phone records show that Mills called Defendant on October 30, 2015. Mills testified that during this conversation Defendant told him she needed sixty days to evict the tenants residing in the Property units. I accept this as true. Defendant's phone records show that after finishing this phone call, Defendant called Barros and Fernandes.

45. Mills testified that following the October 30, 2015 phone conversation with Defendant he chose January 1, 2016 as the closing date at the Registry and wrote this date on the counterpart of the P&S Agreement he had taken away with him on October 21st . I credit this testimony.

46. Mills contacted Fernandes via text message on November 5, 2015 to ask for an "update." Fernandes informed him that she and Defendant "spoke about it" and that Fernandes "told her to think it over." Mills replied that "the company has it on the books to close the beginning of January."

47. Mills contacted Fernandes via text message on November 12, 2015 to ask for an "update" and find out whether or not "the check [was] going to clear."

48. Fernandes replied via text message on November 13, 2015 that Defendant "still [hadn't] made a decision" and that Fernandes was "waiting to see what she decide[d] first."

49. Mills contacted Fernandes via text message on November 24, 2015 to ask for an "update" and to inform her that "the company [was] going to have to start working on running title and getting the payoffs etc." There was no reply.

50. Defendant's cell phone records indicate Mills sent a text message to Defendant on November 30, 2015. After receiving this text message, Defendant dialed Mills' phone number. Shortly thereafter, Defendant called Barros and Fernandes.

51. Defendant's cell phone records indicate that Mills sent Defendant a text message on December 2, 2015. After receiving this message, Defendant called Barros.

52. Mills contacted Fernandes via text message on December 2, 2015 to ask if "the deposit check [he] gave for 25 Saint Marks [was] going to get deposited." He also informed her that "one of the partners [was] going to need to do a walk through on all floors to scope the work it need[ed]." There was no reply.

53. On December 22, 2015, Plaintiff sent Defendant correspondence seeking information necessary for the closing. There was no response from Defendant or her daughters.

54. On December 30, 2015, Plaintiff sent via overnight mail to Defendant a notice of default under certain provisions of the P&S Agreement. The notice of default indicated that Defendant was entitled, pursuant to the P&S Agreement, to an additional thirty days beyond the closing date to deliver possession as set forth in the P&S Agreement.

55. Fernandes contacted Mills via text message on December 31, 2015 to apologize for not responding earlier and to tell him that she had "been waiting on [her] mother who [was] indecisive." Fernandes said that "since [Defendant] [was] not ready to make a decision [she would] have to return [his] check."

56. Mills contacted Fernandes via text message on January 18, 2016 and told her that "the company [did] not want to release [her] mom from the contract and said they will sue force [sic] the sale." Fernandes replied by asking about the contract and saying Defendant "didn't agree to or sign anything." Mills responded, "Yes she signed a purchase and sale agreement when I gave her the check." He also said, "She has a copy of it, you said prior that you had an attorney look at it remember?" Fernandes replied, "Yes but it's only signed by your organization she never signed it." Mills told Fernandes that Defendant "signed the copy she gave [Plaintiff]." Fernandes then asked Mills to email her a copy of the P&S Agreement in Mills' possession, which he agreed to do.

57. Defendant testified that after meeting with Mills she met with another realtor who informed her the value of the Property was between $650,000 and $675,000. I credit this testimony.

IV. DISCUSSION

I turn first to the validity of the P&S Agreement signed by Plaintiff and Defendant as a binding contract. I then turn to Defendant's interlaced claims that the P&S Agreement was signed due only to fraudulent misrepresentation or mistake, and that it was impossible for Defendant to perform under the P&S Agreement rendering it void. Last, I address whether Defendant is in breach of the P&S Agreement and, if so, the appropriate remedy for such breach.

I find and rule based on all of the evidence I credit that Plaintiff has carried its burden of proof in establishing that the P&S Agreement is a valid binding contract, and that Defendant is in breach of that contract. I further find that Defendant failed to establish that the P&S Agreement is void due to impossibility of performance or that it was signed by Defendant due to fraudulent misrepresentation or mistake. I find and rule that Defendant is required to perform under the P&S Agreement by selling the Property to Plaintiff according to the terms of that agreement.

A. The P&S Agreement is a valid contract between Plaintiff and Defendant.

A valid contract for the purchase of real estate requires (1) an adequate description of "the property to be sold and the price to be paid," and (2) that the parties to the contract intend to be bound by their respective obligations to sell the property and pay the price offered. McCarthy v. Tobin, 429 Mass. 84 , 86-87 (1999). I have found that Plaintiff through Mills offered to purchase the Property for $475,000.00, which Defendant did not accept. Rather, Defendant countered with an offer to sell the Property for $500,000.00. Plaintiff through Mills obtained confirmation from Plaintiff that a sale at that price was acceptable, provided Defendant would agree to deliver the Property at closing free of tenants. Following this conversation, Mills on behalf of Plaintiff drew up the P&S Agreement, and Defendant signed it, with the understanding that her daughters would look it over. The purpose of this review by Defendant's daughters, I find, was not to create a condition that would keep a contract from forming, but to provide the Defendant with her daughters' counsel about timing, and, in particular, about the steps needed to deliver the Property without tenants, which would have an effect on the timing of the closing. But nothing about the consultation with Defendant's daughters was calculated by the parties to serve as a condition or contingency which was to prevent the formation of a binding agreement. Rather, I find, there was at this point an initial offer by the buyer, a counteroffer by the seller, and an acceptance by the buyer of that counteroffer. "An offer is the manifestation of willingness to enter into a bargain made in such a way as to justify the other person in understanding that his assent will conclude the agreement." I & R Mechanical, Inc. v. Hazelton Mfg. Co., 62 Mass. App. Ct. 452 , 455 (2004). I conclude based on all of the evidence that Defendant's counteroffer was the offer accepted, subject to conditions memorialized in the P&S Agreement, and that Plaintiff and Defendant at that point intended the P&S Agreement to be an enforceable contract for the sale of the Property.

Defendant challenges the validity of the P&S Agreement on two grounds. First, Defendant claims that she didn't understand what Mills was saying to her because she doesn't meaningfully speak and read English. While I do not find that Defendant speaks English fluently or even well, I do not conclude that Defendant was so lacking in English communication skills that she failed to appreciate the substance of the transaction on October 21, 2015, nor that she was entering into a legal obligation. I find to the contrary. The traditional legal principles do not insist on a comprehensive level of appreciation by the contracting parties. "[O]ne who signs a written agreement is bound by its terms whether [one] reads and understands it or not or whether [one] can read or not." Cohen v. Santoianni, 330 Mass. 187 , 193 (1953) (and cases cited therein). And a person signing a written contract is bound by its terms "in the absence of deceit on the part of the defendant, even though not understanding their purport and ignorant of the English language." Paulink v. American Express Co., 265 Mass. 182 , 185 (1928). Defendant's claim that she does not speak or understand English does not, by itself, render the P&S Agreement invalid without a showing of fraud. Compare Paika v. Perry, 225 Mass. 563 , 567 (1917) (Contract void due to fraud perpetrated on non-English speaking party). In this case, I do not find any such fraud to have occurred. The price on which the parties agreed may have been less than Defendant might have obtained from another willing buyer, but a disadvantageous price does not, standing alone, signify fraudulent behavior by the Plaintiff. More importantly, although the evidence was conflicting, I do not find that Defendant was someone whose lack of facility with English rendered her incapable of ordinary understanding about the general legal significance of the deal she was striking with Mills. This case is not one where a contracting party lacked entirely comprehension of the language used to negotiate and memorialize the agreement.

Secondly, Defendant contends that the P&S Agreement had an express contingency incorporated into it that rendered the P&S Agreement ineffective until Defendant's daughters had a chance to review and approve the contract. "By signing [a written contract] the parties bind themselves to such interpretation as the court may place upon the words and symbols employed by them." Benjamin Foster Co. v. Com., 318 Mass. 190 , 196 (1945). I find that the contingency that the daughters review the contract was incorporated into the P&S Agreement. However, based on all of the evidence, and for the reasons set out below, I also find that this contingency did not require Defendant's daughters to consent to the P&S Agreement before it became effective. Rather, I find that the condition was that Defendant's daughters could review the P&S Agreement and advise her regarding the implementation of the sale, with a special focus on the particular steps the Defendant, as seller, had undertaken to see to the departure of the current tenants by the time the deal closed.

While the handwritten language on the two documents does not match exactly, I do not find that the added contingency phrases have substantially different meanings--Defendant bargained for and Plaintiff granted her the ability to have her daughters review the contract. But this did not mean, however, and I do not find, that the conditional language written on the P&S Agreement meant that Defendant's daughters were required to assent affirmatively to the P&S Agreement before it became effective as a contract binding on their mother. Not only is there no evidence of this that I credit, but Defendant testified credibly that she did not need her daughters' approval to sell the Property, and the parties stipulated to the fact that Defendant in October of 2015 was competent to enter into contracts.

Even were I to conclude that these handwritten additions to the contract signified some right in one or both of the Defendant's daughters to give their assent before the contract became enforceable–something I do not find to be the case–the subsequent conduct of the parties does not prove helpful to Defendant on this view of the evidence. Even if the daughters held such a right to withhold their assent, and so prevent the contract from becoming unconditionally binding on the Defendant, the time that elapsed from the signing up of the P&S Agreement on October 21st, and the purported repudiation of it late in December, does not support the conclusion that the parties understood any such right of review existed. Had Defendant's daughters responded promptly by expressly disapproving the P&S Agreement after reviewing it, stating that they declined to assent to it, and asserting that their mother's obligations were terminated as a result, this position of the Defendant at trial might be more persuasive. But the facts line up otherwise.

In response to repeated inquiry from the buyer, focusing increasingly on the need to take the steps necessary to close, over many weeks the Defendant and her daughters did not assert any such unilateral right on her part to terminate the agreement. Instead, they either failed to respond, or indicated that the Defendant herself was indecisive. If there was any right in the Defendant to have her daughters' failure to sign off excuse her performance–something I find was not the case–that would not have meant that the decision whether or not to go forward belonged to the Defendant. It would have meant that the decision rested with the daughters. And at no relevant time did the Defendant or her daughters assert that the daughters held such a right, much less that they were exercising it.

None of the text messages sent by Fernandes indicated disapproval of the P&S Agreement generally, of any specified parts of the P&S Agreement, or of a sale of the property to Plaintiff. Instead, they refer to Defendant as being indecisive and not having made a decision yet. This leads me to the conclusion that under the P&S Agreement, Defendant did not intend to vest her daughters with any right to veto or cancel the deal. She intended to review with them the mechanics and timing of delivering the Property to the buyer free of tenants. And in any event, whatever rights the P&S Agreement gave the Defendant to consult with her daughters and then work with the buyer to set a proper date for closing–one that made sense in light of the tenant issue--were required to be exercised within a reasonable amount of time after October 21st.

The buyer was entitled, in fact, to conclude that this issue was put behind the parties when, in a call on October 30th, the Defendant advised Mills that she would require sixty days to deal with the tenants and be able to deliver possession free of them, as she had agreed to do when she signed the P&S Agrement nine days earlier. Plaintiff reasonably would have felt that this call, settling the issue left open in the P&S Agreement, came after Defendant's consultation with her daughters on this point, and satisfied the right to review that Mills and the Defendant reserved in the handwritten addition to the contract. And this October 30th call also explains satisfactorily how and why the buyer marked the document to include a closing date roughly sixty days later.

Mills testified that he gave Defendant nine days to speak with her daughters, with whom she then lived, before assigning a closing date following a phone call with Defendant confirming that she would remove the tenants and would need sixty days to do that. I find that given the nature of the agreement, and the fact that Defendant was in regular communication with her daughters, these nine days was a reasonable period of time for her to have her daughters look over the P&S Agreement and advise her about the steps required to remove the tenants from the three units. Powers, Inc. v. Wayside, Inc. of Falmouth, 343 Mass. 686 , 691 (1962) ("What is a reasonable time [to exercise a right under a contract] depends on all the circumstances of the case. When the offer is one of sale or purchase, the subject matter of the offer is sometimes the major factor."). I find that it was reasonable for Mills to believe that Defendant's statement on October 30, 2015 that she needed sixty days to evict the tenants (a condition of the P&S Agreement) was confirmation that Defendant's daughters had reviewed the P&S Agreement and sought no further modification of the contract.

While the evidence points to Defendant's daughters initially having been under the impression that Defendant might not have signed the P&S Agreement on October 21st, because the counterpart Mills left with her had on it only his signature, I conclude that they would have (and did) promptly become aware that their mother did in fact sign the counterpart left with Mills. Defendant was capable of entering into contracts, and she was capable of, and responsible for, letting her daughters know about the P&S Agreement she in fact had signed as a seller. The communications from Plaintiff to Fernandes are entirely clear that Plaintiff understood that a legally binding deal had been made, that the check could be cashed, and that the sale was to proceed. Fernandes before long reasonably had to have come to understand that her mother in fact had signed the P&S Agreement.

Although not entirely fluent in English, I find that Defendant was not at all a novice when it came to dealing with real estate. Defendant was not unfamiliar with real estate contracts. She signed two mortgages when purchasing the Property and twice refinanced the Property. Defendant also obtained an appraisal of the Property when it was purchased. I find that Defendant was entirely capable of understanding that the P&S Agreement was a contract for sale of the Property for a sum certain. I find that she understood that the transaction she entered into on October 21st, and the P&S Agreement she signed that day, were for the sale of the Property by her, as the fee owner, to the Plaintiff, as buyer. She signed as a "Seller," and she understood the significance of that. "[T]o create an enforceable contract, there must be agreement between the parties on the material terms of that contract, and the parties must have a present intention to be bound by that agreement." Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875 , 878 (2000) These parties understood the material terms, and the writing they signed memorializes them. The fact that the final closing date needed to be established to accommodate the seller's need to deliver possession is not fatal to the existence of a binding contract. "[T]he law does not demand impracticable precision from contracting parties. If they identify present unknowns or subsequent contingencies and provide mechanisms or norms for their accommodation, their agreement will be binding." Targus Group Intl., Inc. v. Sherman, 76 Mass. App. Ct. 421 , 431 (2010). I conclude and find that Plaintiff and Defendant have a valid and binding contract for the sale of the Property.

B. The P&S Agreement is not void due to misrepresentation, mistake, or impossibility.

Defendant advanced three reasons why the P&S Agreement should be set aside. First, Defendant claimed that she didn't realize she was signing the P&S Agreement, and instead thought she was simply signing a receipt for the check. Second, Defendant claimed that Mills urged her to sign the P&S Agreement, but failed to tell her what she was signing and that he knew that Defendant misapprehended what was being signed. Third, Defendant claimed that because the closing date on the P&S Agreement was January 1, 2016 to take place at the Suffolk Registry of Deeds, it was impossible for Defendant to perform her obligations under the contract.

Misrepresentation

Defendant stated that Plaintiff obtained her signature on the P&S Agreement, knowing Defendant did not read or speak English well, through fraudulent misrepresentation. Specifically, Defendant claimed that she thought she was obtaining an appraisal of the Property from Plaintiff, and did not know that Mills was offering on behalf of Plaintiff to purchase the Property. She alleged that she was not given the entire P&S Agreement, but rather was given only a one page document to sign that did not contain the agreed upon price for the Property. Defendant, in essence, claims that if she had known that she was signing a binding contract to sell the Property, she would not have done so.

"To sustain a claim of misrepresentation, a [party] must show a false statement of a material fact made to induce the [party] to act, together with reliance on the false statement by the [party] to the [party's] detriment." Zimmerman v. Kent, 31 Mass. App. Ct. 72 , 77 (1991); See also Powell v. Rasmussen, 355 Mass. 117 , 119 (1969). "The general rule is that, in the absence of fraud, one who signs a written agreement is bound by its terms whether [one] reads and understands it or not. This rule applies to a person who cannot read." Wilkisius v. Sheehan, 258 Mass. 240 , 243 (1927)

Defendant bore the burden at trial of proving that she only signed the P&S Agreement because of a willful misrepresentation by the Plaintiff. See Golding v. 108 Longwood Ave., 325 Mass. 465 , 467 (1950) (the party claiming fraud bears the burden of showing the other party intended to deceive them). I find and rule that Defendant did not provide the court with sufficient evidence to sustain her burden of proof. Defendant did not claim that Mills affirmatively told her that she was signing only a receipt for the check. Defendant did not state that Mills affirmatively told her that he was only there to appraise the property. Defendant did state that Mills didn't explain the P&S Agreement to her, but even if I were to credit this testimony, which I do not, Defendant had the opportunity to show the P&S Agreement to others, including her daughters, to assist her before signing. Defendant overcame whatever reservations she might have had initially, and did sign the P&S Agreement after the Plaintiff agreed to a higher price. I find based on all of the credible testimony and other evidence presented at trial that Defendant did not carry her burden of proving that Plaintiff made a false statement of material fact. Even were I to find, which I expressly do not, that Defendant misapprehended the significance of what she was signing, she did not in any way prove that Plaintiff was responsible for any such misapprehension. Nothing shows me that Mills made any false statement of a material fact upon which Defendant relied. I find that the P&S Agreement was not signed due to a misrepresentation by the Plaintiff, and it will not be set aside on that basis.

Mistake

Defendant claims that she did not understand what was being signed. First, that, even if so, by itself does not render the P&S Agreement unenforceable. "[Mistake] is tantamount to an assertion that the parties did not have a meeting of the minds. In such a case it was incumbent upon the . . . [party] faced with the fully integrated agreement to establish [their] theory by a measure of proof . . . that the parties had never agreed on certain essential terms." Covich v. Chambers, 8 Mass. App. Ct. 740 , 748 (1979). "While it is clear that a party seeking rescission need not show even an innocent misrepresentation of some material assumption which forms the basis of his bargain in order to make out a case of mutual mistake of fact . . . it is also elementary that both parties must share the erroneous state of mind as to the basic assumption on which the contract was made." Id. at 749. A unilateral mistake will not void an otherwise valid contract. However, "'a mistake made by one party to the knowledge of the other is equivalent to a mutual mistake.'" Century Plastic Corp. v. Tupper Corp., 333 Mass. 531 , 535 (1956) (quoting Mates v. Penn Mutual Life Ins. Co., 316 Mass. 303 , 306 (1944)).

Even without a false statement of material fact on the part of Plaintiff, if Plaintiff knew that Defendant misapprehended what she was signing and knowingly accepted her signature, the P&S Agreement could be set aside on that basis. "Every contract implies good faith and fair dealing between the parties to it. The courts always avoid, if possible, any construction of a contract that is unreasonable or inequitable." Clark v. State St. Trust Co., 270 Mass. 140 , 153 (1930). "[T]he plaintiff has the burden of proving a lack of good faith . . . [which] can be inferred from the totality of the circumstances." T.W. Nickerson, Inc. v. Fleet Nat'l Bank, 456 Mass. 562 , 570 (2010). Defendant bore the burden at trial of showing that Plaintiff knew that Defendant was not at all aware of what she was signing, and that Plaintiff nevertheless accepted her signature. While Defendant did attempt to attack the credibility of Mills, Defendant did not carry her burden of showing that Mills obtained Defendant's signature on the P&S Agreement knowing that Defendant thought she was signing her name for some other reason. I have found that Defendant was aware of what it was she negotiated and signed on October 21st. The proposition that Mills and Defendant were not capable of understanding each other, and did not each appreciate what they were accomplishing, is not borne out by the facts as I find them.

I also do not credit Defendant's testimony that she thought she was obtaining only an appraisal from Mills. Defendant testified that she had received an appraisal of the Property in the past, and I find that she was familiar with the appraisal process. She would have appreciated that when a property owner contracts with an appraiser, the appraiser does not give the owner a check. If anything, it is the owner who pays the appraiser. Defendant would have realized for many reasons, including that she was the one to whom the check was payable, as well as the fact that she signed the papers as a seller, and that she had negotiated over price with Mills, that her encounter with Mills on October 21st was the formation of a purchase transaction, and not the leadup to an appraisal. I find entirely unconvincing any evidence presented to show that Defendant, Fernandes, or Barros ever reached out to Plaintiff to inquire about an appraisal. The entire weight of the evidence points to the understanding of Defendant and her daughters from October 21, 2015 onward that Plaintiff's intention was to purchase the Property. I do not find that Defendant was mistaken about the nature of the P&S Agreement she signed. I certainly do not find that Defendant has carried the burden of showing that Plaintiff was aware that Defendant was mistaken about the nature of the P&S Agreement they both signed. The P&S Agreement is not unenforceable on the basis of mistake.

Impossibility

Defendant claims that because the P&S Agreement signed by Plaintiff and Defendant ended up with a closing date set for January 1, 2016, taking place at the Suffolk Registry of Deeds, a government holiday when the Registry is not open, the P&S Agreement is void due to impossibility. I do not find this contention meritorious. I have concluded, based on the testimony and evidence I accept, that this closing date was not part of the contract when first it was signed by Plaintiff and Defendant. I find that Mills entered this date on October 30, 2015, following his conversation with Defendant, in which she said she needed sixty days to evict the tenants from the Property. While that specific closing date was not part of the text of the agreement reached between Mills and Defendant on October 21st, I do not find that the P&S Agreement is in any way invalid because it did not have a date certain for closing when the parties signed it. Rather I find it was appropriate that the closing date be set mutually by the parties after the opportunity, requested by Defendant and granted by the Plaintiff--that her daughters review the P&S Agreement to determine the time frame for removing the tenants--had passed. The date upon which they then settled, January 1st, was just slightly more than the sixtieth day after the October 30th conversation. I conclude that Mills and the Defendant picked this date to afford Defendant the full two calendar months, November and December, after the call, to complete the work of removing the tenants.

I also do not find that the fact that the closing date was set on a legal holiday renders the P&S Agreement void due to impossibility. While the parties certainly could not actually have closed at the Registry on New Year's Day, this date was arrived at by them for the convenience of the Defendant, to give her more time than she said she needed to get the Property ready for sale. Nothing shows that January 1, as opposed to the preceding or following business day, was bargained for with particularity. A closing on January 1 was not essential to the contract. "It is not required that all terms of the agreement be precisely specified, and the presence of undefined or unspecified terms will not necessarily preclude the formation of a binding contract." Situation Mgmt. Sys., 430 Mass. at 878. While the text of the P&S Agreement does state that time is of the essence of the agreement, I do not find that either party had a true and fixed expectation of closing on January 1, 2016. The breach of contract claimed by Plaintiff in this case is not failure timely to sell the Property to Plaintiff on January 1st (indeed Plaintiff gave Defendant additional time to convey the Property). The breach asserted is rather the complete repudiation of the bargain reached.

I further conclude, consistent with Mills' testimony, that it is common and acceptable for parties to a real estate purchase and sale agreement to extend a closing date by agreement. See Simpson v. Vasiliou, 29 Mass. App. Ct. 699 , 701 (1991) ("An oral extension of a closing date may be valid, notwithstanding a requirement in the purchase and sale agreement that any such extension be provided for in writing"); See also Limpus v. Armstrong, 3 Mass. App. Ct. 19 , 21 (1975) ("The mere fact that the agreement specified a date for closing did not make time of the essence"). Furthermore, the legislature has provided an answer to the question of how to deal with performance under a contract when the date for performance falls on a legal holiday: "Except as otherwise provided, when the day or the last day for the performance of any act, including the making of any payment or tender of payment, authorized or required by statute or by contract, falls on Sunday or a legal holiday, the act may, unless it is specifically authorized or required to be performed on Sunday or on a legal holiday, be performed on the next succeeding business day." G.L. c. 4, §9. I do not read the P&S Agreement as insisting on performance on January 1st because or in spite of the fact that that day is, necessarily, a legal holiday. Because it does not, the statute operates to extend the closing date to the next business day, in this case Monday, January 4, 2016. I find and conclude that the closing date set out in the P&S Agreement was not of the essence, and the P&S Agreement is not void due to the impossibility of the parties closing at the Registry on January 1, 2016.

C. Plaintiff is Granted the Equitable Remedy of Specific Performance due to Defendant's Breach of the P&S Agreement

Having concluded that the P&S Agreement is a valid binding contract, and that the P&S Agreement will not be set aside due to misrepresentation, mistake, or impossibility, I now turn to whether or not Defendant has breached the P&S Agreement and, if so, the remedy for that breach. "A breach of contract is a failure to perform for which legal excuse is lacking." Realty Developing Co. v. Wakefield Ready-Mixed Concrete Co., 327 Mass. 535 , 537 (1951). I find and rule that Defendant has not presented any legal basis for her refusal to convey the Property to Plaintiff for the price set out in the P&S Agreement and according to the terms of that agreement. The P&S Agreement was breached in this case due to Defendant's refusal to sell the Property to Plaintiff. This ongoing refusal to perform, for which Defendant has failed to provide any legal basis, and for which, following trial, I have found no legal basis, places Defendant in breach of the P&S Agreement.

Plaintiff in this case seeks specific performance of the purchase and sale agreement, and "in the absence of significant equitable reasons for refusing such relief, specific performance of real estate sale agreements is appropriate." Raynor v. Russell, 353 Mass. 366 , 367 (1967). "It is well-settled law in this Commonwealth that real property is unique and money damages will often be inadequate to redress a deprivation of an interest in land." Greenfield Country Estates Tenants Ass'n v. Deep 423 Mass. 81 , 88 (1996). I conclude that Plaintiff has been and remains ready, willing, and able to perform since the time for closing provided for under the P&S Agreement. Defendant will be ordered to perform under the P&S Agreement signed on October 21, 2015, and to convey the Property to Plaintiff according to the terms of the P&S Agreement, including, without limitation, by conveying the Property free of all tenants and occupants.

Judgment accordingly.