MISC 18-000298

July 19, 2018

Essex, ss.



Plaintiffs Christopher A. Whitlock and Mary M. Flannery filed a five-count Verified Complaint against defendants George and Maureen Burke in June 2018. Count I presented a request for approval of a memorandum of lis pendens pursuant to G.L. c. 184, § 15. Plaintiffs 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' residential property at 11 Lafayette Terrace in Nahant, Massachusetts ("11 Lafayette"). This Court (Speicher, J.) denied ex parte relief, but at a motions hearing held on June 21, 2018, the Burkes assented to the Court's (Vhay, J.) endorsement of Plaintiffs' 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 action. Plaintiffs 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 June 21, 2018 motions 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 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 forms of relief. Plaintiffs first asked for a declaratory judgment pursuant to G.L. c. 231A, §§ 1-2, that a purchase and sale agreement (the "Agreement") that the Burkes signed on April 2, 2018, for sale of 11 Lafayette to Plaintiffs, is valid and enforceable, notwithstanding later assertions by Ms. Burke that she lacked sufficient mental capacity to sign the Agreement. Plaintiffs also asked for an order requiring the Burkes to perform their obligations under the Agreement, especially their obligation to participate in a closing under the Agreement scheduled for July 20, 2018. In Counts IV and V of the Verified Complaint, Plaintiffs sought damages from the Burkes for breach of the Agreement and its implied covenant of good faith and fair dealing. At the June 21, 2018 hearing in this matter, 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 further proceedings.

On July 11, 2018, Mr. Burke moved to dismiss Count III. He claimed he does not have legal title to 11 Lafayette (he claimed that only Ms. Burke owned the property). On July 13, 2018, following hearing, the Court denied Mr. Burke's motion without prejudice. At the later trial in this matter, the parties stipulated that should the Court hold that Plaintiffs are entitled to specific performance of Mr. Burke's obligations under the Agreement, his obligations under the Agreement regarding delivery of a deed would be limited to delivery of a good and sufficient quitclaim deed running to Plaintiffs, and not a deed warranting that he has title in 11 Lafayette.

The parties proceeded to trial on Count III on July 16 and 17, 2018. In accordance with this Court's Decision this same date, this Court ORDERS, ADJUDGES and DECREES that:

A. Counts I-II of Plaintiffs Christopher A. Whitlock and Mary M. Flannery's Verified Complaint are hereby DISMISSED as moot.

B. Counts IV-V of Plaintiffs' Verified Complaint are hereby DISMISSED without prejudice for lack of subject-matter jurisdiction.

C. Judgment is hereby entered in FAVOR of Plaintiffs and AGAINST defendants George and Maureen Burke on Count III of Plaintiffs' Verified Complaint.

D. The Standard Form Purchase and Sale Agreement dated April 2, 2018 and signed by Plaintiffs and the Burkes (the "Agreement") is valid and enforceable.

E. George and Maureen Burke are ORDERED to perform all of their duties and obligations under the Agreement, including but not limited to their obligations under paragraph 8 of the Agreement to deliver a deed "on or before 2:00 PM on the 20th day of July 2018. . . ."