Home 282 SHORE DRIVE REALTY TRUST v. BARRY P. WILENSKY, as Personal Representative of the Estate of Margaret V. Herrity and 25 Naushon Road Realty Trust, and ROBERT LAUCK.

MISC 17-000545

April 12, 2018

Barnstable, ss.



This Court is the latest stop in a running battle over registered land at 25 Naushon Road in Mashpee, Massachusetts. The Court advised the original parties (plaintiff Charlotte M. Gildea, as Trustee of the 282 Shore Drive Realty Trust, and defendant attorney Barry P. Wilensky, the personal representative of the Estate of Margaret V. Herrity) that they might want to consolidate their various skirmishes in one court. Neither party took that advice. This Court thus is able to resolve only a part of this controversy. That part's this: whether this Court may order attorney Wilensky, at this time, to convey 25 Naushon Road to Trustee Gildea or intervenor Robert Lauck; and if not, whether this Court may order Wilensky to take steps that may allow him, someday, to sell the property.

Here are the undisputed facts, which are before this Court on various motions for summary judgment. The current record owner of 25 Naushon Road is the 25 Naushon Road Realty Trust. The last trustee of that trust, and its sole beneficiary, is the now-deceased Ms. Herrity. The record doesn't disclose who (if anyone) is the new trustee, or who (if anyone) is a beneficiary of the trust now that Herrity has passed.

Ms. Herrity left a will that named her son Michael Herrity as executor of Ms. Herrity's estate. As executor, Michael had the power "without license of the court" to sell Ms. Herrity's real property. Nevertheless, in June 2017, the Norfolk County Probate and Family Court appointed attorney Wilensky as the personal representative of Ms. Herrity's estate, with Michael's assent. "Personal representative" is the term that the Massachusetts Uniform Probate Code, G.L. c.190B (effective Mar. 31, 2012, see Acts 2008, c.521), uses for what now-repealed G.L. c. 193 called the "administrator" of an estate. See G.L. c. 190B, § 1-201(37).

At the time the court appointed attorney Wilensky as personal representative, a bank that held the mortgage on 25 Naushon Road was threatening to foreclose on the property. Thus, in his capacity as personal representative, Wilensky arranged to advertise 25 Naushon Road for sale, through real-estate broker Lisa Curran Parenteau. Parenteau included in the multiple listing service advertisement for the property this statement: "Special Listing Cond: Estate Sale." Parenteau received several responses to her adverstisements, including offers from Trustee Gildea.

On August 22, 2017, attorney Wilensky asked the Probate and Family Court to grant him authority to "weigh all offers" for 25 Naushon Road and to "accept the best offer. . . ." The court didn't act on the motion until September 8, 2017. But on the evening of August 22, Trustee Gildea signed and tendered to attorney Wilensky, through Gildea's real-estate broker Jamie Regan, an offer to purchase 25 Naushon Road for $850,000. The first page of the offer, written upon a standard form, contained a blank for the closing date. Gildea drew an asterisk on that blank. In ¶ 8 of the form, Gildea wrote another asterisk and put beside it: "14 days after a license to sell issues from Probate Court." (This Decision will have more to say about "licenses" later.) Gildea also included a one-page addendum to her offer. The addendum contained a box that read: "Subject to court approval. Per the estate instrument, the estate is required to review all offers until this sale is on record." (This Decision will call this version of the addendum the "Disclaimer.") Gildea signed both her one-page offer and her one-page addendum electronically.

Attorney Wilensky didn't sign or otherwise return to Trustee Gildea her August 22 offer. On September 5, 2017, Gildea upped her offer to $875,000. The first page of the offer (on which she wrote "9/5/16," but the parties agree she meant 9/5/17) was identical to the first page of the August 22 offer, except she crossed out what she previously had written in ¶ 8 concerning the closing date and wrote: "* On or before October 15, 2017 or earlier if possible." The offer also included a different one-page addendum. That addendum omitted the Disclaimer.

Later on September 5, attorney Wilensky (via broker Parenteau) returned Trustee Gildea's offer with three changes, only one of which deserves mention: on Gildea's addendum, Wilensky re-inserted the Disclaimer. Wilensky also signed his response, electronically, "Barry Wilensky, Pers. Rep.," a reminder to Gildea that she was dealing with the personal representative of an estate.

Even later on September 5, broker Parenteau informed broker Regan that attorney Wilensky had received an offer that was higher than $875,000. Parenteau invited Trustee Gildea to up her offer. Gildea did so on September 7, 2017 -- one day before the Probate and Family Court ruled on Wilensky's motion. Gildea's September 7 offer contained the first page of what Wilensky had sent to her on September 5, 2017. Gildea modified that first page, increasing her offer to $911,000. She then took her September 5, 2017 addendum (and not the modified addendum that Wilensky had sent back to her on September 5, the one with the Disclaimer), added the date "10/6/17," and made that her new addendum.

Attorney Wilensky's reply to Trustee Gildea's September 7 offer sparked this and other litigation. Court: Wilensky simply signed the second page of Gildea's $911,000 offer (again, electronically, "Barry Wilensky, Pers. Rep."), and returned it via broker Parenteau to broker Regan. This time, however, Wilensky made no changes to what Gildea had included as an addendum. Wilensky (or possibly broker Parenteau) thus omitted the Disclaimer from Wilensky's September 7 reply. This Decision will call that reply the "Alleged Acceptance."

On September 8, 2017, the Probate and Family Court granted attorney Wilensky "sole authority to weigh all offers. . . ." The court further instructed Wilensky that he "shall accept the best offer to expeditiously pay off the outstanding liens and debts owed" by Ms. Herrity's estate, that he "shall consider traditional factors such as an offer with the least likelihood for a purchase to fail[,] such as the possibility of financing falling through versus a cash offer or unilateral rights to rescind an offer," and "shall have the express authority to be the final decision maker regarding disputed actions for this estate subject to the approval of this Court. . . ."

Two other things happened on September 8. First, an attorney for the Herrity estate sent an attorney for Trustee Gildea a draft of a purchase and sale agreement. The parties did not submit that draft for the record in this case. Second, at mid-afternoon, Robert Lauck sent attorney Wilensky an offer to purchase 25 Naushon Road for $926,000. On September 9, 2017, broker Parenteau e-mailed broker Regan: "Jamie: we are in receipt of a higher offer as of late last night. As you know, the estate is compelled to review, consider and potentially accept all offers until this property closes and is on record. Please let me know if your buyers would like to increase their current offer." This and other communications alerted Gildea that Wilensky didn't view the Alleged Acceptance as, well, an acceptance. In fact, unbeknownst to Gildea, late in the afternoon of September 9, Wilensky replied favorably to Lauck's offer, with two stated conditions: "Subject to court approval. The trust instrument requires review of all offers until this property is sold and on record." Wilensky signed his reply, "Barry Wilensky, Pers. Rep."

On September 13, 2017, attorneys for the Herrity estate and Trustee Gildea discussed the signing of a purchase and sale agreement. The next day, broker Regan sent broker Parenteau a draft Purchase and Sale Agreement, signed by Trustee Gildea. Paragraph 42 of the draft agreement provides:

The parties acknowledge that whereas title to the property was held in the name of a Trust and the Trustee and Beneficiary of said trust is deceased, this transaction may require . . . a License to Sell from the Norfolk Probate Court. SELLER agrees to file for said court approvals at SELLER's sole expense. In the event that SELLER can't obtain any required court approval despite reasonable efforts prior to the closing date . . . , SELLER shall have the right to terminate this Agreement by written notice to BUYER and this agreement shall become null and void without further recourse to the parties.

On September 14, 2017, attorney Wilensky filed a motion with the Probate and Family Court. Its title pretty much sums it up: "Personal Representative's Emergency Motion for Court Intervention of [sic] Two Competing Offers to Purchase Real Estate and to Compel All Beneficiaries of the Estate to Sign Assents for an S-Petition as Directed by the Court Previously on September 8, 2017."

One week later, Trustee Gildea sued attorney Wilensky in this Court. Gildea's complaint contained four counts. Count I called for specific performance of the Alleged Acceptance. Count II claimed that Wilensky had breached a contract with Gildea. Count III asserted that Wilensky had violated the covenant of good faith and fair dealing in his dealings with Gildea. Finally, Count IV contended that Wilensky had violated G.L. c. 93A. The latter three counts sought damages.

On October 2, 2017, in its first hearing with all of the parties, this Court learned of attorney Wilensky's request to the Probate and Family Court for "court intervention." This Court ruled that it would await the Probate and Family Court's decision before proceeding further with Trustee Gildea's complaint in this Court. On October 18, 2017, the Probate and Family Court issued an order (the "October 18 Decision") declining to "intervene" with respect to the competing offers for 25 Naushon Road. Two days later, after giving the parties the opportunity to request a transfer of Gildea's claims to a court that could adjudicate all of them, the Court dismissed Counts II-IV for lack of subject-matter jurisdiction.

That left for this Court Count I, Gildea's claims for specific performance. The Court ordered Gildea to move for summary judgment on that count. Mr. Lauck soon applied to intervene in this case; the Court allowed his request. Lauck answered Gildea's complaint and cross-claimed against attorney Wilensky, claiming that Lauck was entitled to specific performance of his allegedly accepted offer for 25 Naushon Road. The Court now has before it (a) Trustee Gildea's motion for summary judgment on Count I of her complaint, for specific performance; (b) attorney Wilensky and Mr. Lauck's cross-motions for summary judgment against Gildea on Count I of her complaint; and (c) Lauck's motion for summary judgment against Wilensky on Lauck's cross-claim for specific performance.

Specific performance is merely a type of equitable remedy, albeit one that G.L. c. 185, § 1(k) specifically mentions as being within this Court's jurisdiction to grant. In order to obtain specific performance of a contract to convey real estate, one must first show that (a) there is a binding contract to sell property, (b) the agreed time for performance has arrived, and (c) the party seeking performance has performed (or is prepared to perform) his or her end of the bargain. See, for example, McCarthy v. Tobin, 429 Mass. 84 , 86-88, 89-90 (1999); Raynor v. Russell, 353 Mass. 366 , 367-68 (1967).

Trustee Gildea and Mr. Lauck's claims for specific performance founder, at the moment, for lack of an enforceable contract to sell real estate. It is undisputed that attorney Wilensky has been acting at all times as the personal representative of the Estate of Margaret V. Herrity. Under the Massachusetts Uniform Probate Code, "[e]xcept as restricted or otherwise provided by the will or by [a court] order in a formal proceeding . . ., a personal representative . . . , acting reasonably for the benefit of the interested persons," may sell the real estate of a decedent to "an arm's length third party," and have that sale be conclusive against those who are parties to the probate of the decedent's estate,

provided that: . . . (ii) if the decedent died with a will, either: (a) the will, probated formally or informally, empowered the personal representative to sell, lease or encumber that real estate or an interest in that real estate, or (b) a license has been issued under chapter 202.

M.G.L. c.190B, § 3-715(a)(23½). It's clear from the October 18 Decision that the Probate and Family Court has not yet authorized, "by order in a formal proceeding," Wilensky to sell 25 Naushon Road. It is also undisputed that Ms. Herrity "died with a will," but that the will did not empower Wilensky to sell 25 Naushon Road.

Absent authorization from Ms. Herrity's will or other order of court, § 3-715(a)(23½) denies Wilensky the power to sell 25 Naushon Road unless and until he obtains a license to sell the property under G.L. c. 202. This is a principle with a long history. See, for example, Litchfield v. Cudworth, 32 Mass. (15 Pick.) 23, 31 (1833) ("An administrator, without a license from a competent court, has no power to sell the real estate of his intestate."). Gildea and Lauck concede that, at the time of each of his competing acceptances, Wilensky didn't have a license under c. 202 to sell 25 Naushon Road, nor had he even applied for a license -- a fact that's abundantly clear from the October 18 Decision. Moreover, Gildea twice acknowledged before filing suit in this Court that Wilensky had to seek a license in order to convey 25 Naushon Road. She hand-wrote in her August 22, 2017 offer that the parties' closing would occur after Wilensky obtained a license. She referred to the license a second time in her September 14, 2017 draft of the parties' purchase and sale agreement.

Attorney Wilensky thus has not entered into an enforceable contract for the sale of 25 Naushon Road, one capable of specific performance, with either Trustee Gildea or Mr. Lauck. See Dresel v. Jordan, 104 Mass. 407 , 414 (1870) (purchaser not entitled to specific performance of contract for sale of real estate signed by executors of estate who lacked power to sell the property, "because the estate in which the title to the land stands is not bound by the agreement"); Onanian v. Leggat, 2 Mass. App. Ct. 623 , 626 n. 1 (1974) (discussing Dresel's holding and distinguishing it from cases in which an executor has a power of sale, either by will or by license). See also Grennan v. Pierce, 229 Mass. 292 , 292-93 (1918) (refusing to grant specific performance where a trustee, who had authority under a will to sell real estate, but who had made a particular sale contingent on obtaining a license, applied for but did not receive the license after informing the court that he had received a higher offer).

Trustee Gildea suggested at oral argument that attorney Wilensky may have agreed to do something short of conveying 25 Naushon Road: perhaps one can construe the Alleged Acceptance, for example, as Wilensky's agreement to seek in good faith a license to sell 25 Naushon Road to Gildea for $911,000, and if a license is granted, convey the property to Gildea. Gildea offers no authority that suggests that this Court possesses jurisdiction under c. 185, § 1(k), not only to order a party to convey real estate, but also to order that party to obtain (or even just try to obtain?) authority to sell that real estate. Such an order also would risk putting this Court, in this case, in the awkward position of having to judge the "good faith" of a court-appointed representative (here, Wilensky) in applying to the appointing court for a license that's issued exclusively by the same court. This Court will not stretch its powers under § 1(k) that far. Instead, this Court will leave to other courts the question of whether Wilensky, either individually or in his fiduciary capacity, entered into any enforceable agreements with Gildea or Lauck – excepting, of course, the two alleged agreements to convey 25 Naushon Road for which Wilensky lacks a license, and can't at this time perform.

This Court thus GRANTS attorney Wilensky and Mr. Lauck's cross-motions for summary judgment against Trustee Gildea, DENIES Trustee Gildea's motion for summary judgment, and DENIES Mr. Lauck's motion for summary judgment against attorney Wilensky.

Judgment to issue accordingly.