MISC 18-000298

July 19, 2018

Essex, ss.



According to a 2016 study, rates of homeownership among those 65 years of age and older greatly exceed that of the population as a whole. That rate is expected to grow over the next twenty years as the "baby boom" generation, with its accumulated real estate, ages. The study also points out that for many elderly, their home is their principal financial asset, an asset that often does double duty as a source of comparatively inexpensive housing. But the same researchers remind us that as people age, they encounter a variety of problems – financial, medical, societal, emotional, and mental – at rates that likewise exceed that of the general population. See Joint Center for Housing Studies of Harvard University, Projections and Implications for Housing a Growing Population: Older Households 2015-2035, 4-11 (2016), available at http://www.jchs.harvard.edu/sites/default/files/harvard_jchs_housing_growing_population_execsum.pdf. These factors can combine to put many elderly homeowners in something of a crisis.

It appears that neither Congress nor the Massachusetts legislature has addressed the circumstances of elderly homeownership comprehensively. To be sure, there are programs that provide aid to the elderly, the disabled, and the poor. Massachusetts law also provides various means (for example, trusts and guardianships) for younger or healthier persons to assist older persons with the management of their affairs. There are also a variety of estate-planning mechanisms and products that can help persons while they're still alive.

None of those programs, laws, mechanisms or products bear on the current dispute, one that arose after George and Maureen Burke – a couple in their seventies -- signed an agreement (the "Agreement") to sell to Christopher Whitlock and Mary Flannery, for $1.075 million, the Burkes' shoreline home in Nahant, Massachusetts, and then regretted their decision. The Burkes claim they shouldn't be forced to perform their Agreement and sell their home because Maureen – the home's owner of record – lacked sufficient mental capacity to sign the Agreement. That defense has a long history under Massachusetts law. It's a defense that also has adapted to changing understandings of mental health and mental illness. The Court nevertheless holds that, under the common law as it stands today, the Burkes have not proved that Maureen lacked the mental capacity to sign the Agreement. Whitlock and Flannery thus are entitled to an order compelling the Burkes to perform all of their duties under the Agreement, even if it means selling their home.

Whitlock and Flannery filed a five-count Verified Complaint against the Burkes in June 2018. (For ease of reading, this Decision will refer to the Burkes by their first names when appropriate.) Count I presented a request for approval of a memorandum of lis pendens pursuant to G.L. c. 184, § 15. Whitlock and Flannery filed with their Verified Complaint an ex parte motion for approval of such a memorandum, to be recorded in the chain of title of the Burkes' home at 11 Lafayette Terrace in Nahant. This Court (Speicher, J.) denied ex parte relief, but at a hearing held on June 21, 2018, the Burkes assented to the Court's (Vhay, J.) endorsement of the proposed memorandum. Count I is thus MOOT at this time.

Count II of the Verified Complaint sought a temporary restraining order and a preliminary injunction preventing the Burkes from "directly or indirectly selling, leasing, transferring, developing, encumbering, wasting or otherwise disposing or using" 11 Lafayette pending the outcome of this lawsuit. Whitlock and Flannery filed with their Verified Complaint an ex parte motion for issuance of a temporary restraining order. This Court (Speicher, J.) denied ex parte relief, but at the same June 21 hearing, without objection from the Burkes, the Court (Vhay, J.) issued a preliminary injunction prohibiting them and their agents, servants, employees, agents and all those in active concert or participation with either or both of them "from conveying, encumbering, damaging, or destroying" 11 Lafayette or any of its improvements. Count II is thus MOOT at this time.

Count III of the Verified Complaint sought two things. Whitlock and Flannery first asked for a declaratory judgment pursuant to G.L. c. 231A, §§ 1-2, that the Agreement is valid and enforceable, notwithstanding later assertions by Maureen that she lacked sufficient mental capacity to sign it. Whitlock and Flannery also asked for an order requiring the Burkes to perform their obligations under the Agreement, especially their duty to transfer title to 11 Lafayette no later than 2:00 p.m. on July 20, 2018. In Counts IV and V of their complaint, Whitlock and Flannery also sought damages from the Burkes for breach of the Agreement and its implied covenant of good faith and fair dealing. At the June 21 hearing, without opposition from any of the parties, the Court dismissed Counts IV and V for lack of subject-matter jurisdiction, leaving only Count III for trial.

On July 11, 2018, George moved to dismiss Count III. He claimed that since he doesn't hold title to 11 Lafayette, he can't be compelled to perform any duties under the Agreement. Following a hearing, the Court denied George's motion without prejudice. At the later trial in this matter, the parties stipulated that should the Court hold that Whitlock and Flannery are entitled to specific performance of George's obligations under the Agreement, those obligations pertaining to delivering a deed would be limited to delivery of a good and sufficient quitclaim deed, and not a deed warranting that George has title in 11 Lafayette.

The parties proceeded to trial on Count III on July 16 and 17, 2018, only days before the Closing under the Agreement. (The parties tried but failed to agree on an extension of the Closing.) Based on the testimony and evidence received at trial, the parties' stipulations, and the arguments of counsel, the Court finds the following facts:

1. Around April 2, 2018, George and Maureen signed the Agreement (Trial Exhibit 1), a Standard Form Purchase and Sale Agreement for the land and buildings located at 11 Lafayette Terrace in Nahant. On April 2, 2018, Christopher A. Whitlock and Mary M. Flannery co-signed the Agreement.

2. The Burkes stipulate that the Agreement is enforceable unless the Court holds that Maureen lacked sufficient mental capacity to sign the Agreement.

3. The events leading to the Burkes' signing of the Agreement began in December 2016, when they first considered selling 11 Lafayette. George was more enthusiastic than Maureen about putting 11 Lafayette on the market. George was worried that it was increasingly difficult for the two of them to maintain their house, which has ten rooms and approximately 3,100 sq. ft. of living area. As of December 2016, Maureen was mostly interested in understanding 11 Lafayette's market value. She also had a strong emotional attachment to 11 Lafayette: Maureen's father had built the house, Maureen had inherited it from her mother, and Maureen had proudly raised the couple's four children there.

4. Through a family friend, the Burkes contacted a realtor, Jessica Schenkel, in December 2016 about selling 11 Lafayette. In early 2017, George contacted a second licensed realtor, C. Andrew Battinelli, about selling 11 Lafayette. Battinelli met in person with both Burkes in early 2017 to discuss listing 11 Lafayette. While George did most of the talking, Maureen appeared to Battinelli to understand the discussion.

5. By May 2017, the Burkes had hired Ms. Schenkel to list 11 Lafayette for sale. The listing price was $1.2 million. The MLS advertisement for the property noted that its most recent assessed value was $994,800. Maureen approved the listing price, after reviewing information from Schenkel regarding comparable properties. Maureen also gave Schenkel photographs that Schenkel used in the property's MLS advertisement.

6. In 2017, and to this day, Whitlock and Flannery have lived at 7 Lafayette Terrace. After seeing the listing for 11 Lafayette, they offered "a million something" for the property. Maureen considered the offer to be too low, and she decided herself to withdraw 11 Lafayette from the market.

7. In late July 2017, the Burkes signed a revolving credit agreement. The agreement allowed them to borrow up to $90,000. They secured their obligation to repay any borrowings under the agreement by putting a $90,000 Revolving Credit Mortgage on 11 Lafayette. No introduced evidence of any other mortgages on 11 Lafayette.

8. In the fall of 2017, Battinelli met again with the Burkes. They told him that they had listed the property with Schenkel, that they'd received an unacceptable offer, and that they'd taken the property off the market. George nevertheless said it was getting harder for him to take care of 11 Lafayette. The Burkes had a number of questions for Battinelli, including whether (a) doing work inside 11 Lafayette would improve its value, (b) they could rent an in-law unit in 11 Lafayette's basement to the general public, and (c) they could engage Battinelli as a listing agent. Battinelli agreed to look into the apartment issue, but he told the Burkes that their agreement with Schenkel gave her exclusive rights to sell 11 Lafayette through sometime in February 2018.

9. Battinelli investigated the Burkes' apartment question. He reported to George that local laws prohibited renting the apartment to persons outside of the Burke family. George asked again about hiring Battinelli as a listing agent. Battinelli told George to contact him closer to the time Schenkel's contract was supposed to expire.

10. Shortly before Schenkel's contract expired, George called and asked Battinelli to gather market information about properties comparable to 11 Lafayette. Battinelli met with the Burkes at a Starbucks coffee shop on February 10, 2018. The meeting lasted one hour. Battinelli provided listings for five or six properties he considered comparable to 11 Lafayette. Battinelli told the Burkes that he believed 11 Lafayette's value was around $1.15 million. Maureen said she believed the value was in the $1.2-$1.3 million range. Battinelli told Maureen that he didn't think the comparables supported her estimate. Throughout the conversation, Maureen appeared to Battinelli to be engaged in the discussion. She reviewed the comparables. She asked about their locations, when they went on the market, and how long they stayed on the market. At no time did Maureen express to Battinelli any uncertainty about selling 11 Lafayette.

11. After the Starbucks meeting, George called Battinelli and said that the Burkes wanted to list the property for sale through Battinelli. Battinelli agreed to meet the Burkes at 11 Lafayette on February 21, 2018. Battinelli brought to the meeting a form Exclusive Right to Sell Listing Agreement. The meeting lasted two hours. It included reviewing the Listing Agreement, discussing 11 Lafayette's condition, and explaining each party's duties under the Listing Agreement. (That Agreement is clear as to its objective: "to sell the property described as 11 Lafayette Terrace, Nahant, Essex County, Massachusetts. . . .") Maureen appeared to Battinelli to be fine throughout the meeting. She asked about comparable sales and how 11 Lafayette would be shown. She seemed to be familiar with the Listing Agreement. She agreed to the $1.15 million listing price and Battinelli's proposed fee. She signed the Listing Agreement.

12. The Listing Agreement contains several provisions, including this one: "The BROKER is not hired as a property inspector, tax advisor or attorney and if such services are desired SELLER should hire professionals."

13. Battinelli prepared a new listing advertisement for 11 Lafayette. The ad noted that the property's new assessed value was $1,027,500. George provided Battinelli with two pages of notes regarding the property, which Maureen corrected primarily as to the dates of certain improvements. Throughout the effort of drafting the ad, Maureen appeared to Battinelli to be calm and composed. She didn't object to the final advertisement. Battinelli posted it in late February 2018.

14. On March 12, 2018, Whitlock and Flannery offered $1.025 million for 11 Lafayette. Battinelli relayed the offer to the Burkes. He had several discussions with them about their hoped-for price and the value of comparable properties. Battinelli suggested presenting a counteroffer of $1.110 million. Maureen eventually agreed to that plan, and Battinelli presented the counteroffer on March 13, 2018.

15. On March 14, 2018, Whitlock and Flannery upped their offer to $1.075 million, a number that was within Battinelli's estimate of a fair market value for 11 Lafayette. On March 17, 2018, Battinelli met with Maureen and George at their daughter Katie's house. The four discussed the revised offer for two hours. During the meeting, Maureen said she wanted a higher price, so as to pay off a mortgage and other debts, and to buy a multi-family structure somewhere else. She wondered if listing the property for a longer period might yield a higher price. By the end of the meeting, however, she decided to accept Whitlock and Flannery's offer. She signed their offer sheet.

16. Whitlock and Flannery had 11 Lafayette undergo a standard home inspection. After the house passed inspection, Battinelli called George and asked if the Burkes had an attorney who'd help them with the transaction. George told Battinelli that the Burkes had an attorney, but they thought his proposed fee was too high. Battinelli recommended another lawyer, William H. Miller. Battinelli knew of attorney Miller from his work at several real-estate closings. Battinelli had no business relationship with Miller, however.

17. The Burkes retained attorney Miller to represent them in negotiating the Agreement. Attorney Miller's name appears in the Agreement. George worked more closely with attorney Miller than Maureen did, although Maureen understood that Miller was her attorney too. Maureen spoke at least twice with attorney Miller prior to signing the Agreement. The Burkes also shared a draft of the Agreement with their accountant, so as to understand the Agreement's tax implications.

18. Battinelli received what he understood was the final draft of the Agreement in late March or early April 2018. He met the Burkes at a YMCA in Marblehead, MA to review the Agreement and have them sign it. At the meeting, George said that he and Maureen had read the Agreement. Battinelli nevertheless reviewed it with them the Agreement page by page. They had questions about some of the items, and had three new concerns. All three related to "exclusions" from the property to be conveyed. George asked for two new exclusions and Maureen asked for a third. Battinelli hand-wrote an Addendum B to the Agreement's "exclusions," and told the Burkes that he'd propose the changes to Whitlock and Flannery's attorney. The Burkes signed and/or initialed every page of the Agreement, including Battinelli's Addendum B. Throughout the meeting, Maureen appeared to Battinelli to be composed, responsive, and not hesitant to sign the Agreement with its Addendum B.

19. Battinelli sent the Agreement and its proposed Addendum B to Whitlock and Flannery. They co-signed the Agreement, including Addendum B, on April 2, 2018.

20. Between February 25, 2018 and April 16, 2018, Battinelli sent text messages to Maureen's (also known as "Pat") cellphone, and either George or Maureen responded. The messages included a variety of subjects relating to the sale of 11 Lafayette, including showings, the offers, the counteroffer, Battinelli's efforts to find the Burkes a new home, the inspection of 11 Lafayette, attorney Miller's retention, and the Agreement. Maureen didn't communicate in any of the texts any discomfort or unwillingness to sell 11 Lafayette.

21. Maureen claimed at trial that she felt "pressure" from George to sell 11 Lafayette. Battinelli never witnessed in any of his meetings with the Burkes any effort by George to force Maureen to accept or do anything. Battinelli heard George remark several times, "It's Maureen's decision; it's her house." Maureen admitted that what she meant by "pressure" was her feeling that she needed to respond to George's desire to have an easier life, not have to take care of 11 Lafayette, and perhaps use the proceeds of the sale to solve some of the family's problems.

22. The findings set forth in ¶¶ 3-20 above detail numerous events preceding the signing of the Agreement. Only two participants in those events, Maureen and Battinelli, testified at trial. George did not testify, nor did Katie Burke, nor did Ryan Burke, George and Maureen's son, who lives at 11 Lafayette. Maureen also has a medical doctor and, at some point, started seeing a therapist for treatment. Neither testified at trial.

23. Maureen has never been declared incompetent, nor has anyone ever been appointed as her guardian.

24. On May 24, 2018, an attorney for the Burkes, Richard Chambers, wrote a letter to an attorney for Whitlock and Flannery. Attorney Chambers announced that the Agreement was null and void because (a) Battinelli had coerced both Burkes into signing the Agreement, (b) Maureen was on several medications at the time of signing, and (c) she didn't "knowingly, voluntarily, or intelligently sign" the Agreement.

25. The Burkes stipulated at trial that the May 24 letter was their first notice to Whitlock and Flannery concerning the issues raised in that letter. The Burkes further stipulated that they have no defense of coercion, undue influence, or any other defenses to enforcement of the Agreement arising out of Battinelli's conduct.

26. On June 29, 2018, the Burkes visited Dr. Daniel Kriegman. Dr. Kriegman is a clinical psychologist, with a doctorate in psychology. He is not a medical doctor. He has frequently evaluated persons, and provided expert testimony, concerning their mental capacity. He has done that primarily in the context of ascertaining a person's ability to understand Miranda warnings, or their ability to understand releases or waiver agreements. He also has evaluated people to assess their ability to adhere to "behavioral contracts," in a variety of settings.

27. Dr. Kriegman met with the Burkes for one to two hours. Prior to the meeting, Kriegman's only information concerning Maureen came from her attorneys. They gave Kriegman no medical records, and he hasn't seen any such records since. His entire understanding of Maureen's medical history comes from his single interview with the Burkes.

28. Dr. Kriegman first attempted to talk with Maureen alone, but she broke down crying shortly after the interview began. He thus asked George to join the interview. George helped Maureen answer many of Dr. Kriegman's questions.

29. During his interview with the Burkes, Dr. Kriegman performed no standardized tests of Maureen or her functions. He didn't use standard tests accepted in his field for gauging a person's cognitive abilities, her memory, possible personality disorders, or whether she is dissembling.

30. Dr. Kriegman offered no opinion at trial concerning whether Maureen's medications interfered with her mental capacity to sign the Agreement.

31. The Burkes told Dr. Kriegman that their family (and Maureen in particular) had experienced a variety of events that Dr. Kriegman considered to be traumatic. They included sexual abuse of Maureen and later her son; substance abuse in a number of generations of the family; and intra-family dysfunction. The Burkes' signing of the Agreement, for the sale of the home built by Maureen's father and in which she had raised her four children, also created a serious rift within the Burke family. There was no suggestion that George perpetrated any of the abuse.

32. Dr. Kriegman concluded from his interview that Maureen could be suffering from post-traumatic stress disorder ("PTSD"), serious depression, and/or anxiety. Such conditions can prevent a person from reading and understanding documents, or cause them not to be able to focus on such tasks. Such conditions also can be temporary.

33. Maureen told Dr. Kriegman that she hadn't read the Agreement, and that she signed it only because George told her to do so. Dr. Kriegman testified that some persons who suffer PTSD, serious depression or anxiety may not read (or have sufficient focus to read) important documents, and might respond to orders from others to sign documents unread. Dr. Kriegman nevertheless testified that (a) Maureen could have understood the Agreement if she had read it, and (b) if someone told her "this is a binding agreement," she would have understood that the Agreement was binding.

34. At trial, Maureen broke down several times while recounting the events leading to the signing of the Agreement. The Court nevertheless found her competent to testify at trial. She capably followed the instructions of counsel at trial. She was able to read and follow portions of her deposition transcript at trial. She provided lucid descriptions of many of the events leading to the sale of 11 Lafayette. She also was appropriately combative on cross examination.


The Burkes don't dispute that the controlling Massachusetts case regarding a person's capacity to contract is Sparrow v. Demonico, 461 Mass. 322 (2012). Sparrow holds that "[t]he burden is on the party seeking to void [a] contract to establish that the person was incapacitated at the time of the transaction." Id. at 301. The question is one of fact. See id. at 327-28.

Sparrow recognizes two ways of demonstrating that a party lacked sufficient capacity to enter into an agreement. The Court will explore each in a moment, but Sparrow observes that under both approaches, a party doesn't need to "demonstrate that [the] party suffers from a mental illness or defect that is permanent, degenerative, progressive, or of significant duration." Instead, "[t]he inquiry as to the capacity to contract focuses on a party's understanding or conduct only at the time of the disputed transaction." Id. at 330-31.

Whitlock and Flannery don't take issue with these holdings, but they insist that the only way a party may prove lack of capacity is through the testimony of a medical doctor. No medical doctor testified at trial, and so Whitlock and Flannery argue that the Burkes' claims must fail as a matter of law. While Sparrow states that "medical evidence is necessary to establish that a person lacked the capacity to contract due to the existence of a mental condition," id. at 331-32, Sparrow isn't so clear that the evidence must come from the lips of a medical doctor. Sparrow observed, with respect what happened at the trial in Sparrow, that

there was no expert or medical testimony to explain the effect of [defendant] Susan [Demonico's] experiences or behavior on her ability to understand the [challenged settlement] agreement, to appreciate what was happening, or to comprehend the reasonableness of the settlement terms or the consequences to her of authorizing the settlement. Without such medical evidence, there was no basis to conclude that Susan lacked the capacity to contract.

Id. at 334 (emphasis added). Sparrow thus may not require testimony from a medical doctor in order for there to be sufficient medical evidence to support a finding of lack of mental capacity.

It turns out, however, that the "medical doctor" question isn't decisive in this case. Even if the Court could accept Dr. Kriegman's qualifications to provide an expert opinion as to Maureen's mental capacity, and even if his evaluation of Maureen were deemed to be a legally sufficient review of her medical condition, Dr. Kriegman failed to provide medical evidence that Maureen's experiences or behavior, in Sparrow's words, affected "her ability to understand the [Agreement], to appreciate what was happening, or to comprehend the reasonableness of the [Agreement] or the consequences to her of authorizing the [Agreement]." Id. It wasn't clear at trial whether Dr. Kriegman had any diagnosis for any of Maureen's conditions, medical or otherwise: he had spent too little time with her, had reviewed none of her records, and had performed no tests whatsoever on her. And having reviewed no records from medical or mental-health professionals, Dr. Kriegman couldn't even relay (as experts sometimes are allowed to do) the medical diagnoses of others.

Moreover, Dr. Kriegman testified that if someone told Maureen that the Agreement was binding, she would have understood that fact. Andrew Battinelli said that very thing to Maureen – "this is a binding agreement" – at the Marblehead YMCA, at the time of signing the Agreement. Dr. Kriegman also testified that if Maureen had read the Agreement, she would have understood it. While Maureen testified she didn't read the Agreement, George told Battinelli in Maureen's presence, at the YMCA meeting, that they had read the Agreement. Battinelli nevertheless reviewed the Agreement with both Burkes page by page before they signed it. They gleaned enough from that review to insist that Battinelli draft Addendum B, a minor (yet completely new) proposal to change the terms of a supposedly done deal. That Addendum didn't respond just to George's concerns: it addressed Maureen's too.

The Addendum B episode is one of several that demonstrate that at the moment she signed the Agreement, Maureen understood she had the ability to demand changes or walk away. It also illustrates a significant problem with the Burkes' effort to carry their burden in this case: at critical points leading up to and including the YMCA meeting, there were people besides Maureen Burke and Andrew Battinelli who were witnesses Maureen's conduct and affect. Three quickly come to mind: George Burke, Katie Burke, and Maureen's doctor. None of them testified at trial. And while lay witnesses (in the case of George and Katie) can't offer expert medical opinions, they could have rebutted Battinelli's lay testimony concerning Maureen's physical appearance, condition, and acts at each of his meetings with her. See Sparrow, 461 Mass. 333 -34. They offered no such evidence.

The Burkes thus have failed to show, under the first of Sparrow's tests for mental incapacity, that at the time of the YMCA meeting, Maureen lacked the ability to "'understand the nature and quality of the transaction or grasp its significance.'" Sparrow, 461 Mass. at 328, quoting Sutcliffe v. Heatley, 232 Mass. 231 , 232 (1919). Sparrow describes its second and more modern test, its so-called "affective" test, thus: "'[w]here a person has some understanding of a particular transaction which is affected by mental illness or defect, the controlling consideration is whether the transaction in its result is one which a reasonably competent person might have made.'" Sparrow, 461 Mass. at 330, quoting Krasner v. Berk, 366 Mass. 464 , 469 (1974) (brackets in Sparrow). "Also relevant to the inquiry in these circumstances is whether the party claiming mental incapacity was represented by independent, competent counsel." Sparrow, 461 Mass. at 330.

The Burkes fail to meet Sparrow's alternative test. The Agreement's terms are reasonable, and are ones that a reasonably competent person could have accepted. See id. at 334 & n.15. The Burkes had tried for several months, and had engaged two brokers, to sell 11 Lafayette: first for $1.2 million, then $1.15 million, and eventually for $1.075 million. That effort required repeated decisions by Maureen starting in December 2016 and ending in April 2018. By the time she signed the Agreement, Maureen had received the advice of two real-estate brokers and an attorney (whom the Burkes had selected, solely for cost reasons, over their prior attorney). She had access to an accountant. She had the advice of her long-time husband George (who told Battinelli, with Maureen present, that the "decision" to sell was up to Maureen) and her daughter Katie. The price that Maureen received for 11 Lafayette far exceeds the only evidence debt on the property, the Burkes' $90,000 revolving-credit line. The price is higher than the Town's assessed value for the property. There's also no evidence that Whitlock and Flannery knew that Maureen was suffering from any medical or mental-health conditions as of April 2, 2018. The first they suspected any issues was when attorney Chambers's May 24, 2018 letter arrived.

Accordingly, the Court will enter judgment in FAVOR of Mr. Whitlock and Ms. Flannery, and AGAINST the Burkes, on Whitlock and Flannery's claims in Count III of their Verified Complaint. The Court also will order the Burkes to perform their obligations under the Agreement. Judgment to enter accordingly.