ARTHUR GOLDBERG, as Nominee for Judith P. Schlager, v. ALISA SAVITZ and JONATHAN S. SAVITZ, as Trustees of the Peter Savitz 1999 Family Trust, and JONATHAN SAVITZ, PETER H. SAVITZ and ANDREW SHABSELOWITZ, as Personal Representatives of the Estate of Herbert David Savitz.

After their father's death, the defendants Peter, Jonathan, and Alisa Savitz, in their various capacities, decided to sell the condominium in which he had lived. The condominium was in the Belvedere, an exclusive residence on Belvidere Street in Boston. With the help of brokers, they found buyers, Judith and Lawrence Schlager, who agreed to pay $7,344,000. An offer to purchase was reached in early December 2017, and the parties began negotiations for a purchase and sale agreement with a deadline of December 19, 2017. Unfortunately, negotiations foundered on the issues of who would hold the deposit and how title would be passed. At the deadline, the attorneys were prepared to continue negotiating, but the buyers terminated the agreement.

After this termination, the buyers had a change of heart. They urged that the offer to purchase was enforceable, and appeared at the registry of deeds on the closing date ready, willing, and able to close. The sellers did not. The buyers brought this action for specific enforcement of the offer to purchase, which was tried to me. At trial, the buyers' agents—their son and their nominee—testified that the buyers' termination of the agreement on December 19 and 20 was not meant to end the deal, but was really meant to protect their rights under the offer to purchase and was only, in the words of the nominee, "posturing." Tr. 2:190. The problem with posturing is that the other side is entitled to take you at your word. That is what the sellers did, and agreed that the transaction was terminated. As a result, there is no enforceable agreement between the parties for the sale of the condominium, and the complaint must be dismissed.

Procedural History

The Complaint was filed on January 5, 2018. The Plaintiff's Motion for a Short Order of Notice for the Issuance of a Memorandum of Lis Pendens as to property of Defendants Alisa Savitz and Jonathan S. as trustee of the Peter Savitz 1999 Family Trust; and Jonathan Savitz, Perter H. Savitz, and Andrew Shabshelowitz, as personal Representatives of the Estate of Herbert David Savitz was filed and allowed on January 5, 2017. The court heard the motion for lis pendens on January 9, 2018, at which time the court allowed the motion and endorsed the Memorandum of Lis Pendens. The Plaintiff's Motion to Amend Complaint, as a Matter of Right Pursuant to Mass. R. Civ. P. 15(a) for Declaratory Relief, Specific Performance, and Request for the Issuance of a Memorandum of Lis Pendens and First Amended Complaint for Declaratory Relief, Specific Performance, and Request for the Issuance of a Memorandum of Lis Pendens (First Amended Complaint) were filed on January 22, 2018. The Defendants Answer to First Amended Complaint was filed on February 14, 2018. The Defendants' Motion for Leave to Amend Answer and Defendant's Amended Answer to First Amended Complaint (Amended Answer) were filed on February 21, 2018. On February 28, 2018, the Defendants' Motion for Leave to Amend Answer was allowed and the Amended Answer was deemed filed.

The Joint Pre-Trial Memorandum was filed on March 26, 2018. The Pre-Trial Conference was held on April 2, 2018. A trial was held on May 2 and 4, 2018. Exhibits 1-142 were marked and the court heard testimony from Philip M. Saba, Robert Schlager, William R. Bloom, Lili Banani, Hope Krakoff, Joseph Hawkins, Dana Casali, and Arthur Goldberg. Copies of portions of the depositions of Peter Savitz and Jonathan Savitz offered by the plaintiff and by the defendants were filed on May 7, 2018. The transcript of the trial was filed on May 16, 2018. Plaintiff's Post-Trial Brief, Defendants' Post-Trial Memorandum, and Defendants' Requests for Findings of Fact and Rulings of Law were filed on May 31, 2018. The Plaintiff's Motion to Strike Section (V)(C) (pp.28-30) of the Defendants' Post Trial Brief, to Impound Said Stricken Section and Corresponding Reference on P. (II) of the Table of Contents and for Sanctions, and Memorandum in Support of Motion to Strike and for Sanctions were filed on June 4, 2018. I heard closing arguments on June 5, 2018, and took the case under advisement. This Decision follows.

Facts

Based on the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

1. Unit No. 11D of the condominium known as The Belvedere Condominium a/k/a The Belvidere Condominium, located at 100 Belvidere Street, Boston, Massachusetts (the Property) is owned by Alisa Savitz and Jonathan S. Savitz, as trustees of the Peter Savitz 1999 Family Trust (Savitz Trust) and the Estate of Herbert David Savitz. A 99% undivided interest in the Property is held by the Savitz Trust by a deed from Peter Savitz dated February 26, 2009, and recorded in the Suffolk Registry of Deeds (registry) in Book 44900, Page 51, with the remaining 1% being held by the Estate of Herbert David Savitz by a deed from InterCapital Belvedere Limited Partnership dated September 25, 2002, and recorded in the registry in Book 29727, Page 313. Exhs. 110, 111, 135, 141, 142.

2. The Property is a 3059 square foot condominium on the eleventh floor. Herbert Savitz, the father of Peter, Alisa, and Jonathan Savitz, passed away approximately three years ago. Since then, the Property has been vacant. Tr. 1:55; Exh. 110.

3. In early October 2017, the general manager of the Belvedere Condominium told Hope Krakoff (Krakoff), a real estate agent with Coldwell Banker, that Peter Savitz (Savitz) [Note 1], wished to sell the Property. She reached out to Savitz, who lives in Greenwich, Connecticut. Savitz told Krakoff that he wanted to obtain a sales price of $2,500 per square foot for the Property, or $7,650,000. They discussed that Krakoff would not be a listing agent and that she would be entitled to a 4% commission. Savitz authorized Krakoff to seek a buyer. Krakoff brought in a broker at Coldwell Broker, Lili Banani (Banani), to help her. Banani specializes in high-end residential properties in Boston. Exh. 1; Tr. 2:8-11, 25, 70-77.

4. Judith and Lawrence Schlager are married and are in their 80s. They reside in Palm Beach, Florida, and own a house in Brookline, Massachusetts. Their son, Robert Schlager, lives in Newton, Massachusetts. He is the president of the Bullfinch Companies, a real estate investment, development, management, and construction company headquartered in Needham, Massachusetts. [Note 2] Tr. 1:51-54.

5. Judith and Lawrence are experiencing health issues. They decided that they wanted to move back to the Boston area, but could not live in their house in Brookline because it is not handicapped accessible. In late October, 2017, they told Robert that they were interested in buying a handicapped accessible residence in the Boston area. Tr. 1:53-54.

6. A former client introduced Banani to Judith and Lawrence. Banani arranged for Robert and his son Scott Schlager (Scott) to view the Property in late October, 2017. Judith and Lawrence then viewed the Property on November 20, 2017, and again on November 24, 2017. Exhs. 2-5; Tr. 2:11, 77

7. On November 24, 2017, Judith submitted an offer to purchase the Property for approximately $6,900,000, which was rejected by Savitz. Exhs. 9-10, 12-13; Tr. 2:12, 27.

8. After the rejection, Judith conferred with Banani. They agreed that Judith and Lawrence would pay the brokers' fee in a fixed amount of $156,000 with a promise that the brokers would handle the sale of Judith and Lawrence's Brookline house. On November 27, 2017, Judith submitted a new offer in the amount of $7,344,000, included with which was an offer to pay the broker's commission associated with the sale. Exhs. 16-19; Tr. 2:12, 28.

9. Savitz had his attorney, William Bloom (Bloom), review the offer. Savitz's instructions to Bloom were to try to structure any sale of the Property with as little risk to Savitz as possible. Bloom edited the offer form submitted by Judith to (1) identify Jonathan Savitz Trustee of the 1999 Peter Savitz Family Trust as the seller, (2) identify Bloom as the party holding the deposit, and (3) add an additional term stating that "Buyer is to pay full amount of Broker's Commission." Exhs. 21-22; Tr. 1:208-209; Peter Savitz Dep. at 65-66.

10. On December 4, 2017, Bloom's paralegal sent a signed copy of the offer, including Blooms edits, to Banani attached to an email requesting that a fully executed copy of the offer be returned to Bloom. Banani forwarded the offer to Judith upon receiving the email. Jonathan Savitz signed the final edited offer to purchase (OTP) but it is unknown if Judith ever signed the edited copy or initialed the changes. Exhs. 27, 119; Tr. 1:154-158.

11. The relevant terms of the OTP are as follows. It names as seller "Jon S. Savitz, Trustee of the Peter Savitz 19[illegible] Family Trust" and identifies the Property as the property to be sold. The purchase price is $7,344,000, with $10,000 paid as a deposit to bind the offer, $733,400 to be paid as an additional deposit upon the execution of the purchase and sale agreement, and $6,600,600 to be paid at closing. It provides that the parties shall, on or before 5:00 p.m. on December 19, 2017, "execute the applicable Standard Form Purchase and Sale Agreement recommended by the Greater Boston Real Estate Board or any form substantially similar thereto, which, when executed shall be the agreement between the parties hereto." It provides that a "good and sufficient Deed, conveying a good and clear record and marketable title shall be delivered at 12:00 Noon on January 17, 2018 at the appropriate Registry of Deeds, unless some other time and place are mutually agreed upon in writing." It provides that the "deposit shall be held by William R. Bloom, ESQ., as escrow agent." It provides that "[t]ime is of the essence hereof." It provides that "Buyer is to pay the full amount of the Broker's Commission." Finally, it names as buyer "Judith P. Schlager or Nominee." Exh. 119.

Communications and negotiations following the offer to purchase

12. On December 5, 2017, Bloom's paralegal sent an email to the Schlager's attorney, Joseph Hawkins (Hawkins), which included, as an attachment, a proposed Purchase and Sale Agreement (P&S) prepared by Bloom. Exh. 28.

13. Between December 5 and 18, 2017, Robert, Judith, and Lawrence worked with architects and engineers to determine the feasibility of renovations that they wished to make to the Property, expending nearly $30,000 in the process. They ultimately concluded that such renovations would be possible. Hawkins, their attorney, informed Bloom of these investigations, but did not respond to the draft P&S. Exhs. 25, 26, 29, 30; Tr. 1:66-70, 100-101, 206-208, 2:104-105.

14. Robert wanted Commonwealth Land Title Insurance Company (Commonwealth) to hold the $743,400 in deposits as escrow agent. Commonwealth is a Fortune 400 company with close to $10 billion in assets. As part of its business, it commonly acts as escrow agent and holds deposit funds pending a real estate transaction. The Bullfinch Companies has worked with Commonwealth for 22 years, on multiple transactions, and Robert trusted Commonwealth. Tr. 1:34-37, 43, 70-72.

15. On December 18, 2017 (the day before the OTP's deadline for executing the P&S), at 3:33 p.m., Robert sent an email to Bloom which read, in part:

Mr. Bloom:

Attached is Commonwealth Land Title Insurance Company's standard form of Escrow Agreement for your review. Our office has transferred finds in the amount of $743,400 as the amount of Buyer's deposit due under the [P&S]. Because the title company will be handling the recordation of the Deed and we will be wiring the remaining funds due the day before the closing on Tuesday, January 16, 2018, it is appropriate for the title company to serve as escrow agent, particularly given the large amount of the dollars involved…

Please call me if you have any questions or concerns. Joe [Hawkins] will be forwarding to you final revisions of the [P&S] shortly, which we anticipate will meet your approval and we can arrange for signatures in the morning.

Thanking you in advance for your anticipated cooperation.

Robert

Exh. 33.

16. Bloom disagreed. He felt strongly that he, as attorney for the seller, should hold the deposit. He saw this as customary in a real estate transaction. He was also concerned that because of its business relationship with Robert, Commonwealth could not be a neutral escrow agent. On December 18, 2017, at 3:42 p.m. Bloom responded to Robert's email with the following:

Mr Schlager, I am the attorney for the seller, and is customary in Massachusetts, I will be holding the deposit in my Conveyance IOLTA Account.

Thank you for your cooperation.

Bill

Exh. 34; Tr. 1:176-178, 182-184.

17. At 3:53 p.m. Robert responded to Bloom's email with the following:

Mr. Bloom:

With all due respect, it is typical for our transactions to have the title company hold the deposit, especially one of this magnitude where the proceeds are deposited into one of the nation's largest banks, Bank of America, and protected by our Fidelity bond, which includes employee crime and dishonesty endorsements. Unfortunately, we have never worked with you or your office, have no relationships in Westborough no knowledge of your banking relationships, i.e. financial institutions, insurance coverages, etc. Moreover, since the title company will be recording the Deed and disbursing the proceeds, it would seem unnecessarily complicating to introduce yet having to await receipt of proceeds from a third wire into the process, in order to so not have to delay the recordation of the Deed pending a missing wire from bad weather complications, etc.

Rest assured, Attorney Phil Saba heads up one of the largest title insurance underwriters in Boston, Commonwealth Land Title Insurance Company, and is responsible for hundreds of millions of dollars held in escrow accounts on a daily basis. This is the easiest, simplest and cleanest way to assure an expedited closing.

Thank you for understanding. Joe [Hawkins] should be getting you the [P&S] shortly.

Robert

Exh. 35.

18. About an hour later, at 4:44 p.m. Hawkins sent an email to Bloom attaching revisions to Bloom's draft P&S and stating the following:

Bill,

Subject to client review, attached please find clean and redlined versions of the P&S Agreement for your review.

Please let me know if you have any questions regarding the same. Thank you.

Joe

Exh. 36.

19. The two most material revisions Hawkins made to the P&S were to change the identity of the escrow agent holding the deposit from Bloom to Commonwealth and to add a rider with a more complicated process for transferring title. That process, set forth in ¶ 16 of the rider, required that before or at closing, a nominee trust be created with the sellers as beneficiaries and a trustee chosen by them. The Property would be conveyed to this nominee trust by a deed with nominal consideration. Then, at closing, the beneficiaries/sellers would appoint a new trustee chosen by the buyers and assign their beneficial interests to the buyers by an off-record assignment. The buyers would prepare the documents and bear the costs, except that the sellers would purchase the deed stamps for the purchase price and affix them to a copy of the assignment. Hawkins explained that all of this would be done simultaneously at closing. The purpose of this proposed arrangement was to hide both the identity of the buyers and the purchase price. Exh. 36; Tr. 2:124, 138-139.

20. Bloom objected to the deposit being held by Commonwealth, and had concerns about the proposed process for conveying title. He wondered if it was intended to withhold the Property's value from the City of Boston assessors and whether it might expose the sellers to liability. Savitz shared Bloom's concerns about the potential for liability. Bloom spoke to Hawkins later that day after reviewing the revised P&S. He told Hawkins that the two provisions would be a problem. Hawkins said that the buyers were more comfortable with Commonwealth as escrow agent and explained the nominee trust process. Tr. 1:208-213, 2:126-129; Peter Savitz Dep. at 85-86, 97.

21. At 9:05 p.m., after that conversation, Bloom sent Hawkins an email which read:

Mr. Hawkins,

The most insulting aspect of this ordeal is the fact another Massachusetts attorney would engage in the charade of the last few weeks, particularly the last 2 weeks. I sent you an agreement 2 weeks ago. Until 4:44 this afternoon I did not see any requested revisions to that agreement. If there was in fact an effective offer entered into between the parties, then that is surely not conducive to entering into an agreement by the date specified. In reality, your revisions to the agreement I sent 2 weeks ago make it clear that there has never been a meeting of the minds…

As to the potential transaction itself, I have spoken with my client. If your client wishes to purchase my client's property, forwarding several pages of revisions at the very last minute is not the way to accomplish that. Your revisions are rejected. Some are unacceptable; others simply inapplicable. My client has indicated that he will not entertain an offer to purchase his unit with anything but a straightforward deed to the actual buyer, or at the very least a fully disclosed nominee. My client has instructed me not to engage in any negotiation of requested revisions to an agreement which have clearly not been properly considered on the buyers' end.

Any deposit will be held by seller's attorney in an Atty IOLTA account. And you should be aware that such accounts are fully protected by the Massachusetts Board of Bar Overseers.

I hope the above makes my client's position clear.

Exh. 37.

22. December 19, 2017, was the deadline set forth in the OTP for executing the P&S. That morning, at 11:39 a.m., Hawkins responded to Bloom in an email which read:

Bill,

Thanks for your email. I tried calling you back to discuss the same. There is absolutely no issue with corresponding with my client directly and you have my permission to do the same.

Best,

Joe

Exh. 42.

23. On December 19, 2017, at 12:19 p.m. Bloom responded to Hawkins in an email which read:

I have a very complete schedule today, closing this morning, meeting I am heading out to. Depending on how long that goes I may be able to call later this afternoon. My email was pretty inclusive of my clients position in the matter. Either your client wants to buy or not. I am instructed not to spend time negotiating objectionable or irrelevant provisions. I am also not interested in speaking with your client, approval or not from you. I negotiate with attorneys who are serious about conducting a transaction.

Exh. 42.

24. On December 19, 2017, at 12:23 p.m., Robert emailed Bloom, copying Savitz, Judith, Hawkins, and Banani. In the email, he apologized for any misunderstanding, explained how his and his parents' investigation of whether the Property could be made handicapped accessible delayed the response to the draft P&S, and reiterated why he wanted Commonwealth to hold the deposit. He asked: "Could we all get on a conference call in the next couple of hours and attempt to . . . resolve here please: I will make myself available at any time." Exh. 40.

25. On December 19, 2017, at 12:47 p.m. Robert sent another email to Bloom seeking a conference call. Exh. 42.

26. On December 19, 2017, at 3:47 p.m. Bloom sent an email to Hawkins which read:

Just left you a voicemail. I see no benefit to a conference call. Your revisions to the P&S are at issue, and as stated last night, the deposit will be with me, and the deed will be delivered to the buyer from the seller. There really is nothing to discuss as to these issues. This is a residential transaction, and while I acknowledge these are wealthy people, and your client may wish to handle this transaction as if it was a commercial transaction, there is no need for all of that. My client is selling to Mr. and Mrs. Schlager, or a nominee designated by them. My willingness to consider a different form of transaction is no longer negotiable.

Thank you,

Exh. 44.

27. Following Bloom's email at 3:47 p.m., Hawkins and Bloom spoke on the phone. They discussed some possible resolutions to the two issues, including having another title insurance company hold the deposit, and thought that further conversations between them would be productive. Notwithstanding the December 19th deadline, they agreed to speak again the next morning. Tr. 1:198, 214-215, 2:129-133, 143-144.

28. In an email to Bloom on December 19, 2017, at 5:37 p.m. Hawkins wrote:

Bill,

I'm glad we had the chance to speak this afternoon. I look forward to continuing our conversation in the morning. I'll speak with you at 9:00 a.m.

Thanks,

Joe

Exh. 47.

29. I find that counsel for the parties did not agree on the P&S by December 19th, the deadline set forth in the OTP. The issues on which they disagreed and had not resolved were (a) whether the seller's attorney or Commonwealth would hold the deposit, and (b) how title would be conveyed. I further find that the attorneys had discussed options to resolve these issues and were prepared to continue discussing ways to resolve these issues the day after the deadline.

30. Shortly before Hawkins sent his 5:37 p.m. email to Bloom, Judith sent an email at 5:16 to Robert which read: "Only the title company should hold money." Exh. 48.

31. Robert replied at 5:20 p.m. in an email which read: "Agree- on it". Exh. 48.

32. On December 19, 2017, Judith sent an email to Robert which read:

It is 5:40. Just hung up from Lili [Banani] and told her no deal. Bad vibes, aggravation b4 even starting. Am told [sic] old to mentally deal with this. Will pay you and staff for your time.

Exh. 48.

33. On December 19, 2017, at 6:04 p.m. Banani sent an email to Judith and Lawrence which read:

Hi Judith and Larry

I'm sorry the transaction has been a difficult one because of one attorney…

…[Peter Savitz] is having a heat [sic] attack thinking that the deal maybe terminating.

He's crestfallen.

I'm sure if we had one extra day to resolve the issues, things would've been resolves.

Best

Lili

Lawrence responded to Banani's email at 6:05 p.m. saying "No thx a". Judith responded to Banani in an email at 7:36 p.m. which read:

Lili: I have copies of your emails. This deal has been in the works for 3 weeks. His attorney saw that we were taking title under a nominee trust and also that there was a deadline of today and I NEVER heard of a title company not holding the money. Please tell Mr. Savitz that I am sorry he is a cancer patient: I am a 4 time cancer patient; I have endured this for years and years: I speak to cancer patient groups and I am an advocate and I can tell you that much of cancer is exacerbated by stress and I do not need this additional stress either. So I suggest you advise your client that he take a valium, and that he hires another attorney for the next buyer. Thank you for all your efforts on our behalf. Happy holidays, Judie Schlager

Exh. 49.

34. On December 19, 2017, at 6:09 p.m. Robert sent an email to Bloom which read:

Attorney Bloom:

Please consider this termination of Buyer's intent, (the "TERMINATION NOTICE") pursuant to the offer and Acceptance Letter dated as of November 30, 2017 (the "Offer") to terminate all further discussions and negotiations relative to the above and Buyer hereby requests return of their $10,000 deposit placed thereunder.

Your failure to (i) allow a national title insurance company to hold the deposit (ii) permit the transfer of the fee via nominee trust (iii) mark up the [P&S] with reasonable comments and (iv) enter into any telephone discussions to finalize the [P&S] this afternoon leaves us no choice. My parents are in their 80s and have no patience for protracted negotiations with a sole practioner [sic] from a completely different county where the sale is taking place and the property is located demanding to hold a $750k deposit.

Coldwell banker will deliver the release notice to you in the morning which we expect your full cooperation in securing the return of the $10,000. We will notify Commonwealth land title insurance company of the termination as well.

Robert

Exh. 50.

35. On December 19, 2017, at 6:35 p.m. Banani sent Robert an email asking that he not send a termination email that night. Robert responded at 6:42 p.m. in an email which read:

Too late.. already done per her request and I can't defy her- she will murder me DOA!

His attorney was an idiot- sorry for all.

They have no patience for nonsense..

Exhs. 52, 53.

36. In response to Hawkins' earlier email at 5:37 p.m. and Robert's 6:09 p.m. "termination notice" email, Bloom sent an email to Hawkins at 8:49 p.m. which said "I guess no reason to."

Exh. 54.

37. In an email to Robert on December 19, 2017, at 8:49 p.m. Banani said:

Well your mother didn't shoot Hope.

She will sleep on it and talk to Larry and call us back tomorrow.

Call me to give you the details.

We need to come up with 3-4 bullet points for the lawyers with possible suggestions to harness this deal.

Can be done

Robert responded at 9:22 p.m. saying "Will look at [P&S] tonight and put list together." Exh. 55.

38. On December 19, 2017, at 9:44 p.m. Bloom sent an email to Hawkins, referring to Robert's "termination notice," which read:

Joe, I will once again put aside the insult from your client, and tell you as I just told my client, that while Mr. Schlager's (i) may be the case, (ii), (iii), and (iv) are completely untrue. So there seems a disconnect here or your client is grasping at straws.

I have spoken to Mr. Savitz, who is happy to move on if that is your client's final decision. He did wonder if you and I as competent real estate attorneys sought to find a creative way to overcome the deposit issue. I had to admit that we did not. I therefore intend to call you at 9 and hope we can address that issue. Perhaps an independent third party escrow agent agreeable to both parties? Or some other approach if we can't come to agreement, so be it, but it is worth a call. I hope you agree.

Bill

Exh 56; Peter Savitz Dep. at 101.

39. On December 20, 2017, at 8:59 a.m. Hawkins forwarded Bloom's email from 9:44 p.m. the night before to Robert in an email which said "FYI (see below)." Robert responded to Hawkins at 9:20 a.m. with an email that said "Dead." Exhs. 57, 61.

40. On December 20, 2017, at 9:24 a.m. Bloom sent an email to Hawkins which said, in part, "Joe, I tried to reach you this morning at 9. Will we be able to speak this morning?" Exh 57.

41. On December 20, 2017, at 9:28 a.m. Hawkins sent an email to Bloom which said "Bill, My client has confirmed that the deal is dead. Joe." Exh. 58.

42. I find that as of 9:28 a.m. on December 20, 2017, the buyers—Judith and Lawrence, and Robert acting on their behalf—had terminated their agreement to buy the Property under the OTP and had declined to extend the OTP's deadline for executing a purchase and sale agreement. Their termination was clear and unequivocal. It was set forth in the termination notice and repeated in multiple emails from Judith, Lawrence, and Robert. It was communicated to Bloom, the sellers' attorney, by both the notice of termination on December 19th and Hawkins's confirmation that "the deal is dead" on December 20th.

43. On December 20, at 11:10 a.m. Banani sent an email to Savitz which said, "Peter[,] Hope will call you shortly. I'm on an appointment[,] trying to resurrect the deal if possible." Savitz responded to Banani, in an email at 11:14 a.m., which said "Hawkins just called Bloom officially terminating the deal. Buyer is out. If you think you have any other interested buyers please let me know." Exh 60.

44. On December 20, 2017, at 11:15 a.m. Bloom forwarded Hawkins' 9:28 a.m. email to Savitz in an email which said "Peter, as per our telephone discussion, please see the email from Atty Hawkins." Exh. 58.

45. On December 20, 2017, at 11:38 a.m. Savitz sent an email to Krakoff which said "Confirmation from Hawkins that the deal is dead. Please do not try to resurrect. These buyers were not the right ones and the [sic] certainly did not act like they were real. Please let me know if you have other potential buyers." Exh. 62.

46. On December 20, 2017, at 12:01 p.m., Robert sent an email to Bloom, which said, in relevant part:

Attorney Bloom:

In my 35-year career as a real estate professional, I have never had an attorney blow up a deal until yesterday. My congratulations! … This should have been a joyous and exciting occasion for my family that you have managed to successfully destroy. The value of that unit is nowhere near the purchase price my parents were prepared to pay and your client will likely never be able to achieve that value again, at least not for a long, long time. Sad and disappointing for all, especially your client, who is out quite a bit of money, but presumably, you have insurance for that? … Mr. Bloom, I truly regret that you are the sole blame for this defunct transaction…The only thing I can suggest at this point, if it's even possible to resurrect which I highly doubt, would be for you to accept the changes, permit Commonwealth Land to serve as escrow and send the signed [P&S] back by your client forthwith by COB today. I can make no promises, but I am heading to Florida this evening and will sit with my parents and see if we can put Humpty Dumpty back together again. Frankly, I don't need the aggravation myself as I am heading out of town at 1:30 p.m. today for the holiday and otherwise, good riddance to this debacle and expect that you will sign a Broker Release Form and return my mother's $10k deposit. You need not contact Mr. Hawkins any further unless your client wishes to pick up the tab for his legal fees.

You have my contact information.

Robert

Exh. 61.

47. On December 20, 2017, at 12:03 p.m. Krakoff sent an email to Savitz hoping to set up a phone call with Savitz to discuss the deal. Savitz responded in an email at 12:16 p.m. which read, in part:

Hope;

The deal is dead. Bob Schlager and Hawkins have confirmed that separately….

My lawyer tried to call Hawkins this morning to discuss the issues we discussed yesterday. I honestly thought that they might be able to find a way forward but it appears that Robert was just too upset to allow his lawyer to pursue conversations with my lawyer so I think we have reached the end.

I am sorry that it appears that everyone has wasted their time and money. …But that is where we are and at this point I don't think it will be helpful to resurrect something that they so adamant about walking away from.

I think it is time for us to move on and to solicit other buyers and for them it is time to look for another place.

Exh. 62.

48. I find that as of 12:03 p.m. on December 20th, the sellers accepted the buyers' termination of the OTP and the sale, and that the agreement between the parties for the sale of the Property was terminated.

49. Between 12:47 p.m. and 3:24 p.m. on December 20, 2017, Savitz telephoned Robert. He asked Robert to allow the attorneys to return to discussing the P&S to see if they could resolve the issues. Savitz believed that Robert agreed. At 3:24 p.m., Robert sent Savitz an email thanking him for the call, but stating that he expected Savitz to execute the P&S as revised by Hawkins and that there was "[n]o reason to have any attorney dialogue—unless of course we adjust Buyers attorneys fees as credit to buyer." Savitz considered this email to have reneged on their conversation and to constitute a final termination of the agreement. Exh. 65; Tr. 1:99-102; Peter Savitz Dep. at 101-102.

50. At 5:10 p.m. Bloom sent an email to Robert which read:

Mr. Schlager,

Mr. Savitz has asked me to let you know that your terms are wholly unacceptable. Your termination is noted, and there is no reason for further contact with my client in this matter.

Thank you,

Robert replied to Bloom in an email at 5:20 p.m., copied to Savitz which read:

True to form to say the least, Mr. Bloom. Your reputation proceeded you, yet, once again with another forfeited transaction.

It's more your clients' loss than ours though, sadly, as Mr. Savitz will never recoup the loss of the $7.4M net to Seller, especially with the market weakening given the new Trump Tax plan and over valuation of what would have been inflated $7.4M purchase price, the highest sale price ever paid in the building.

We will just sit back and watch the show from the grandstand.

Robert

Bloom, in an email to Savitz at 5:29 p.m., referring to Robert's 5:20 p.m. email, said, in relevant part, "Peter, I will not respond to this." Exhs. 67-69.

51. On December 20, 2017, at 9:46 p.m. Krakoff sent an email to Savitz and Bloom which read:

Dear Peter and Bill-

As you are aware, we have procured ready, will and able buyers that have met the terms of an extremely competitive offer with a fast closing date.

Based on a conversation and recommendation to the buyers this afternoon, they have agreed to retain a new attorney.

The new attorney and Hope Krakoff would like to come to Attorney Bloom's office tomorrow-Thursday, Dec. 21th for a face-to-face meeting at an arranged time that is also convenient for Peter Savitz (who could be reached via phone, if need be) to review any open items and come to an agreement regarding the P&S.

Please let us know if this suggestion can work for you all.

We would very much like to make this happen for both parties. Best Regards,

Hope Krakoff

Savitz responded in an email to Bloom at 10:26 p.m. which said "There is nothing to discuss. Both buyer and seller have terminated this transaction." Bloom responded to Savitz in an email at 10:30 p.m. which said "Peter it needs to be stated clearly that the brokers didn't procure a ready willing and able buyer. There was no meeting of the minds. I don't want you being set up for a broker commission claim." Exh. 70.

52. On December 21, 2017, at 9:52 a.m. Scott sent an email to Bloom introducing himself as successor counsel to the Schlager family and seeking to set up a phone call to discuss the deal. Exh. 72.

53. On December 21, 2017, at 12:56 p.m. Krakoff sent an email to Savitz seeking to set up a phone call to discuss the deal. Savitz responded at 12:58 p.m. in an email which said "No. No more discussions." Exh. 74.

54. On December 21, 2017, at 9:20 p.m. Bloom sent an email to Krakoff, copying Scott and Savitz, which read, in part:

If there is going to be any future negotiation between these parties, the initial transaction, which the Buyer terminated, must be completed as Mr. Schlager demanded. The buyer needs to have his deposit returned, and we need to be in a position to rid ourselves of all that acrimony and start afresh. If the parties truly want to do business with each other, that cannot happen until the deposit is returned to Mr. And Mrs. Schlager. I look forward to receiving the release so I can have my client sign it.

Exh. 77.

55. On December 22, 2017, at 8:17 a.m. Bloom sent an email to Scott which said, in part, "We simply need to take this one step at a time if there is any chance of a transaction. That which I need to see today hopefully is a release signed by the buyers and brokers with an acknowledgement of their deposit having been retuned. Then I can assure my client we are starting from scratch." Exh. 79.

56. On December 26, 2017, at 12:03 p.m. Bloom sent an email to Scott which said, in part, "My client is interested in selling the unit. If there is not going to be a negotiation with your client, following the complete termination of the initial offer, and return of your client's deposit, with all parties released; my client will want to move forward and seek some other buyer for the condominium." In an email sent at 1:29 p.m. Scott asked that Bloom mark up the P&S for revisions. Bloom responded in an email at 2:40 p.m. which read:

Scott, I am under instructions to obtain a fully signed release, have the deposit returned to the buyers. I have been very clear about that. There is no agreement at this time. When the above is completed we will turn out attention to the P&S. My client won't wait long however, as he expects a sale, if to your client, by mid-January.

Scott responded to Bloom in an email at 7:48 p.m. which read, in part:

Bill-

I wish this were as simple as you've described…

I understand from the Broker…that the $10k Binder Deposit will be returned per your request. That takes care of issue #1.

…The Buyer believed it would be unreasonable to waive its rights should a sale not go through. Therefore, a necessary condition in any release would have to be a reservation of buyer's rights. That said, I've been assured that Buyer will ABSOLUTELY proceed with the purchase on January 17 as contemplated….

I know you want a release, but we need assurances that the seller is ready, willing, and able to convey the property on January 17, 2018.

My fear is I don't want to give rise to any sort of inducement claims from Buyer. Buyer has no intention of entering into spurious litigation; they just want to finalize the deal and close as agreed on January 17, 2018.

Exhs. 80, 82.

57. I find that Savitz's position, as expressed by Bloom, was that Judith, Lawrence, and Robert terminated the OTP on December 19 and 20, that sellers accepted that termination, that any further discussions about selling the Property to Judith and Lawrence constituted new negotiations toward a new agreement, and that discussions could only take place on the condition that Judith and Lawrence obtain a release from Banani and Krakoff of any obligation of Savitz for their commission. Bloom continued to communicate with Banani, Krakoff, Scott, and attorney Alvin Nathanson between December 26, 2017, and January 4, 2018, but did not change his position that the deal had been terminated and no new deal was further negotiated or agreed on. Exhs. 83-85, 87-94, 98-99; Tr. 1: 203-204.

58. On January 16, 2018, the brokers released the $10,000 deposit that accompanied the OTP to Judith. The $10,000 check from the brokers was held by Judith's attorney without being cashed. Tr. 2:158-159, 191-192; Exhs. 103, 139.

59. On January 17, 2018 at approximately 12:00 p.m., attorney Dana Casali, representing Judith and Lawrence, went to the registry prepared for the closing contemplated in the OTP. Attorney Casali's law firm had previously obtained from the brokers a check for the $10,000 deposit. The remainder of the deposit and the balance of the purchase price were wired to attorney Casali's firm that day. The buyer was to be the named plaintiff, Arthur Goldberg as nominee for Judith (Goldberg). Casali waited at the registry for approximately an hour and twenty minutes and left after it became apparent that Savitz or a representative was not going to appear. Exhs. 132-133, 139; Tr. 2:151-161, 172.

60. Robert testified as follows about his belief about the status of the negotiations and the meaning of the buyers' actions and communications on December 19 and 20, 2017:

a. He sent the termination email at 6:09 p.m. on December 19, 2017, in order to protect the $10,000 deposit. Tr. 1:90-91.

b. In in his belief, his notice of termination was not a termination of the transaction because the offer created a binding agreement. Tr. 1:114-116.

c. Judith's 7:36 p.m. email to Banani on December 19, 2017, did not indicate that Judith did not intend to purchase the Property and her statement regarding how to approach a transaction with the next buyer was a figure of speech. Tr. 1:118-120.

d. When he wrote "Dead" in his 9:20 a.m. email to Hawkins on December 20, 2017, that meant "there was no need to negotiate a purchase and sale agreement based on the offer to purchase which satisfies the statute for a purchase agreement in the Commonwealth of Massachusetts on advice of counsel." Tr. 1:122-123.

e. His email to Bloom at 12:01 p.m. on December 20, 2017, which read, in part, "good riddance to this debacle and expect that you will sign a broker Release Form and return my mother's $10k deposit," was not intended to terminate the offer to purchase or secure the return of the $10,000 deposit, but rather "to protect the $10,000 so I didn't end up in court, where I am today." Tr. 1:127-128.

61. I do not credit Robert's testimony. I find that in the multiple communications with their attorney and Bloom on December 19 and 20, 2017, Judith, Lawrence, and Robert intended to and did terminate the OTP. It was only after they terminated the OTP that they sought to resurrect the transaction and restart negotiations. Robert's testimony about what they really meant at the time is only a post hoc rationalization.

Discussion

The legal issues in this case are simpler than the facts. The buyers seek specific performance of the sale of the Property, arguing that (1) the OTP alone was sufficient to bind the parties; (2) any purported termination by the buyers was an anticipatory repudiation which is not recognized by Massachusetts law; and (3) Savitz's actions breached the implied covenant of good faith and fair dealing. The sellers challenge the claim for specific performance, arguing that (1) the OTP is unenforceable because it was not signed or accepted by Judith Schlager; (2) a P&S was never executed; (3) the buyers terminated the transaction; or, alternatively, (4) the buyers breached the OTP. Finally, the sellers seek costs and attorneys' fees, arguing that this lawsuit by the buyers was frivolous and the Memorandum of Lis Pendens was obtained in bad faith. As discussed below, the OTP was valid and binding when entered, but the buyers—Judith, Lawrence, and Robert as their agent—terminated the transaction after the parties failed to execute a P&S by the deadline in the OTP. Therefore, the OTP is unenforceable. However, this action was not frivolous or advanced in bad faith and the sellers are not entitled to recover costs and attorneys' fees.

The sellers argue that Bloom's edits to the OTP constituted a counteroffer which was never signed or accepted by Judith Schlager and the OTP is therefore unenforceable. A contract for the sale of land is enforceable only if it is supported by a writing that includes the agreement's essential terms and is signed by the party against whom enforcement is sought. G.L. c. 259, § 1. Here, Jonathan Savitz signed the OTP on behalf of the sellers and it is the buyers who seek to enforce it. The sellers further argue that the identity of the escrow agent and the transfer mechanism were material terms that the buyers did not agree to, thus rendering the OTP unenforceable as an unaccepted counteroffer.

Whether the buyers signed the OTP is immaterial to their claims in this action. The OTP, signed by Jonathan Savitz, is enforceable against the sellers if it contained all the material terms of the agreement. While the disputed terms—the identity of the escrow agent and the title transfer mechanism—were important to both parties, they did not need to be resolved at the signing of the OTP for it to be enforceable. Generally, the resolution of all significant economic issues in the preliminary agreement is sufficient to create a binding contract. Goren v. Royal Investments Inc., 25 Mass. App. Ct. 137 , 141 (1987). Here, those issues were the property to be conveyed, the purchase price, and the amount of the deposit. Other issues such as those disputed here "are not without importance and may, on occasion, be the subjects of bargaining. They are, however, subsidiary matter and norms exist for their customary resolution." Id. "‘If parties specify formulae and procedures that, although contingent on future events, provide mechanisms to narrow present uncertainties to rights and obligations, their agreement is binding.'" McCarthy v. Tobin, 429 Mass. 84 , 87 (1999), quoting Lafayette Place Assocs. v. Boston Redevelopment Auth., 427 Mass. 509 , 518 (1998). The negotiation and execution of a P&S is one such mechanism. The disputed issues were material to the parties during the negotiation of the P&S, but the fact that they were not resolved at the time Jonathan Savitz signed the OTP is not fatal to its enforceability.

Notwithstanding the statute of frauds, the sellers are estopped from denying the enforceability of the OTP because all parties moved forward with the agreement and the buyers changed their position in reliance on the OTP when they expended approximately $30,000 working with engineers and architects to determine the feasibility of renovations they wished to make to the Property. "The familiar criteria for an estoppel are, specifically, that a party says or does something intended to induce conduct on the part of another; that the other person reasonably relies on the representation, and therefore acts or refrains from acting; and that the other person incurs a detriment as a result." Safety Ins. Co v. Day, 65 Mass. App. Ct. 15 , 23-24 (2005). The buyers relied on the OTP as a valid agreement binding the parties to the sale of the Property subject to the execution of a P&S. By expending money to determine the feasibility of desired renovations, the buyers were acting under the expectation that if they wished they could go forward under the OTP to negotiate the P&S and purchase the Property. Alternatively, if they had found out that the desired renovations were impracticable the buyers could back out but would forfeit the binder deposit of $10,000. The buyers' reliance on the parties' clear mutual understanding that the OTP was valid and enforceable estops the sellers from claiming that the entire agreement was void ab initio for lack of the buyers' acceptance of the edited OTP.

The enforceable OTP required, as a condition, the execution of a P&S on or before 5:00 p.m. on December 19, 2017, and stated that "[t]ime is of the essence hereof." Exh. 119. The buyers argue that under McCarthy, the OTP alone was sufficient to bind the parties to the sale of the Property. However, as in McCarthy, "[c]ourts hold parties to deadlines they have imposed on themselves when they agree that time is of the essence," McCarthy, 429 Mass. at 88. Absent a waiver, the deadline for the execution of a P&S is a condition subsequent where "[w]ithout an executed purchase and sale agreement by that date, the OTP provides that the parties' obligations to each other are extinguished." Id. The parties can mutually extend the deadline, either by their words or their actions, and if they do, the OTP remains binding. Id. at 88-89. Here, the attorneys for the parties, Bloom and Hawkins, had agreed to continue to discuss the P&S after the December 19th deadline. The buyers, however, overruled their attorney. They sent a termination notice directly to Bloom on December 19th, and told the brokers and Hawkins on December 19th and 20th that the agreement was "[d]ead." Exh. 57. Hawkins dutifully forwarded this message to Bloom.

Thus, as discussed above, by 9:28 a.m. on December 20, 2017, the buyers had terminated their agreement to buy the Property and had declined to extend the OTP's deadline for executing a P&S. At that point, it is the sellers who could have sought specific performance (whether they would have prevailed on such a claim is a different question). Instead, as of 12:03 p.m. on December 20th the sellers accepted the buyers' termination of the OTP, at which time the agreement between the parties was mutually terminated or rescinded and the OTP became unenforceable. See Watkins v. Simplex Time Recorder Co., 316 Mass. 217 , 223 (1944) ("Whether the acts and conduct of the parties showed mutual assent to an abandonment or rescission is a question of fact"); Puma v. Gordon, 9 Mass. App. Ct. 489 , 495 (1980); Drake Boatbuilding Co. v. Davenport, 83 Mass. App. Ct. 1107 (2013) (Rule 1:28 Decision) ("‘[F]or a rescission or abandonment of a contract to be implied from the conduct of the parties, their actions must be positive and unequivocal.' 29 Williston, Contracts § 73.16 (4th ed.2003)").

Once the parties' agreement was terminated, there was no longer any agreement to be enforced. In other words, the OTP was unenforceable. Once their termination of the OTP was accepted, the buyers could not turn around and try to enforce it against the sellers. The only way for the OTP to become enforceable again was for the buyers and sellers to agree to it anew, in writing. While they had discussions, the buyers and sellers never reached and executed such a new agreement. Therefore, the buyers' appearance at the registry ready, willing, and able to close on the original OTP was meaningless. There was no enforceable OTP on which to close.

The buyers' remaining arguments are of no avail. First, the sellers did not breach the covenant of good faith and fair dealing. Implicit within the OTP—and every contract in the Massachusetts—is a covenant of good faith and fair dealing between the parties during the negotiation of the P&S. Shawmut Bank, N.A. v. Wayman, 34 Mass. App. Ct. 20 , 25, (1993). "The implied covenant provides ‘that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.'" Targus Group Intern., Inc. v. Sherman, 76 Mass. App. Ct. 421 , 435 (2010), quoting Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451 , 471–472 (1991). "Usually, a breach of the implied covenant involves ‘bad faith' conduct 'implicating a dishonest purpose, consciousness of wrong, or ill will in the nature of the fraud.'" Id. at 435-436, quoting Equipment & Sys. for Indus., Inc. v. Northmeadows Constr. Co., 59 Mass. App. Ct. 931 , 932–933 (2003). Savitz's and Bloom's objections to Commonwealth holding the deposit and the proposed method of title conveyance do not evince a breach of the covenant of good faith and fair dealing. At the stage of negotiating the P&S, these were material issues, and their concerns were not unreasonable or unfounded. Bloom reasonably wanted the deposit to be held by a party not related to the buyers, and the buyers' proposed method for transferring title was unusual enough to legitimately raise questions about the sellers' exposure to liability. Moreover, while they vigorously argued their position, the sellers did not ultimately draw a line in the sand over these terms. Bloom and Hawkins actively discussed options for resolving those two issues and were prepared to continue seeking solutions to bring the parties together the day after the P&S deadline. Rather, it was the buyers who insisted that the sale go forward with Commonwealth holding the deposit and title being conveyed to the trust as proposed in Hawkins's draft P&S or no deal, and terminated the OTP, as was their right. Certainly, emotions ran high throughout the shaping of this deal. However, while the parties could not ultimately agree on the terms of the P&S, I find that neither side acted unfairly or in bad faith during the P&S negotiations. The OTP became unenforceable because of failure of the parties to execute a P&S by the deadline and not because of any lack of good faith on either side. [Note 3]

The buyers' claim that their termination was an anticipatory repudiation which is not recognized in Massachusetts and therefore had no effect on the parties' obligations to perform under the OTP also fails. It is true that, outside of a few narrow situations not applicable in this action, Massachusetts does not recognize anticipatory repudiation as suspending the non-repudiating party's obligation to perform. Thermo Electron Corp. v. Schiavone Const. Co., 958 F.2d 1158, 1164 (1st Cir. 1992); Cavanagh v. Cavanagh, 33 Mass. App. Ct. 240 , 243-244 (1992); Tucker v. Connors, 342 Mass. 376 , 381-382 (1961); Daniels v. Newton, 114 Mass. 530 , 541 (1874). However, as discussed above, the failure of the parties to execute a P&S by the deadline or agree to extend or waive the deadline, formalized by the termination notices conveyed by the buyers which were accepted by the sellers, released both parties from their obligations to perform under the P&S. The parties' interactions on December 19-20, 2017, amount to a mutual rescission of the agreement rather than an unrecognized and ineffective anticipatory repudiation.

Finally, the sellers claim that they are entitled to costs and attorneys' fees for their defense of this action because (1) the Complaint and First Amended Complaint contained false statements, (2) material facts were omitted from the Complaint and First Amended Complaint, and (3) Goldberg improperly verified the Complaint and First Amended Complaint. I find that there were no material misstatements or omissions in either the Complaint or the First Amended Complaint. Further, I find that Goldberg as nominee plaintiff made adequate inquiry into the facts and circumstances described in the Complaint and First Amended Complaint such that his verification of each was not improper. Tr. 2:184-186. Finally, I find that this action was not frivolous or advanced in bad faith. The sellers' request for costs and attorneys' fees is therefore DENIED. Further, consistent with these findings the Plaintiff's Motion to Strike Section (V)(C) (pp.28-30) of the Defendants' Post Trial Brief, to Impound Said Stricken Section and Corresponding Reference on P. (II) of the Table of Contents and for Sanctions is DENIED.

Conclusion

For the foregoing reasons, the OTP became unenforceable on December 20, 2017, and the buyers are not entitled to specific performance of the sale of the Property. Judgment shall enter (a) declaring that the OTP has been terminated and is not enforceable, (b) dismissing the First Amended Complaint with prejudice, and (c) dissolving the lis pendens.

Judgment accordingly.