EUGENE P. WILLIS, Individually and as Trustee of the Alcor Nominee Trust u/d/t November 14, 2000 v. FRANCIS J. DEVAN, SHARON DEVAN, MARIA C. HAWLEY and NORMAN P. HAWLEY

INTRODUCTION

Plaintiff Eugene P. Willis, individually and as Trustee of the Alcor Nominee Trust u/d/t dated November 14, 2000 ("Mr. Willis"), the owner of undeveloped land located off of Boston Hill Road in North Andover, Massachusetts ("Willis Property"), brought this action on March 10, 2017, initially against defendants Francis J. Devan and Sharon Devan ("Mr. Devan" and "Mrs. Devan," respectively, or "the Devans" collectively) and later against Norman P. Hawley and Maria C. Hawley ("Mr. Hawley" and "Mrs. Hawley," respectively, or "the Hawleys" collectively) as well, claiming that the Devans and the Hawleys had breached agreements to provide easements over their properties that would allow for the installation of utilities and the widening of Boston Hill Road on their properties to the benefit of Mr. Willis and the future development of the Willis Property. For the reasons set forth below, this court concludes that Mr. Willis' misrepresentations to the Devans rendered any reliance he placed on their actions unreasonable and preclude him from obtaining relief in equity, and also establish that his agreement with the Devans was fraudulently induced, thus rendering it voidable by the Devans.

RELEVANT PROCEDURAL HISTORY

Mr. Willis' second amended complaint, filed on September 12, 2017, asserted claims against the Devans and the Hawleys for breach of contract (Count I as to the Devans and Count V as to the Hawleys), breach of the implied covenant of good faith and fair dealing (Count II as to the Devans and Count VI as to the Hawleys), promissory estoppel (Count III as to the Devans and Count VII as to the Hawleys), and declaratory relief (Count IV as to the Devans and Count VIII as to the Hawleys). By affirmative defense with respect to the Devans and by counterclaim with respect to the Hawleys, the defendants contended that their agreements to provide easements had been induced by Mr. Willis' misrepresentations to them. By the time of the pre-trial conference, the parties agreed that the principal issue for trial was whether the defendants were estopped to deny the oral agreements alleged by Mr. Willis.

On August 23, 2019, this court took a view of Boston Hill Road, the Hawleys' property, the Devans' property, two properties previously owned by Mr. Willis, and that portion of the Willis Property abutting the paved portion of Boston Hill Road. Counsel for Mr. Willis and the Hawleys reported the matter settled as between them on the morning of the first day of trial. This matter was tried over three days on September 9 through 11, 2019. Mr. Willis, Daniel R. Morgan and Philip G. Christiansen, P.E. ("Mr. Christiansen") testified on behalf of Mr. Willis. The Devans, Mr. Hawley and Carol H. McGravey, Esq. ("Ms. McGravey") testified on behalf of the Devans. The parties initially stipulated to 37 agreed exhibits, which were admitted in evidence. During the course of trial, another 11 exhibits were admitted. After the receipt of transcripts, the parties submitted post-trial briefs. [Note 1]

FINDINGS OF FACT

Based on the pleadings, the view, the admitted exhibits, the testimony at trial, as well as my assessment of the credibility, weight and inferences to be drawn therefrom, I find the following facts, reserving certain details for the discussion of specific legal issues. To the extent that any witness testified otherwise, I do not find that testimony credible, reliable, or in accord with the weight of the other testimony and exhibits in the case and the inferences I drew from the totality of that evidence.

The Parties

1. Until his move to Salisbury, Massachusetts three years before trial, Mr. Willis had lived in North Andover his entire life, and for more than 20 years had lived at 76 Boston Hill Road, a converted barn on property formerly owned by his wife's parents, who continued to reside in the associated house at 68 Boston Hill Road during their lives. Tr. I - 26:20 - 27:7; I - 33:11 - 14; I - 37:7 - 11.

2. Mr. Willis attended the University of Pennsylvania for two years in the 1970s before leaving to work in various construction jobs, ultimately starting his own construction company in the late 1970s. Tr. I - 27:12 - 19.

3. Thereafter, Mr. Willis obtained associate degrees in business and in engineering from North Essex Community College and a bachelor's degree in engineering from Merrimack College. Tr. I - 27:20 - 28:13.

4. Mr. Willis then had a four-year apprenticeship with the engineering firm of Christiansen & Sergi, Inc. ("C&S") before passing the required test and becoming a licensed professional engineer in Massachusetts. Tr. I - 28:14 - 18.

5. In 2005, Mr. Willis obtained a master's degree in environmental engineering. Tr. I - 28:21 - 23.

6. Also in 2005, Mr. Willis became the Town Engineer for the Town of North Andover ("the Town"), a position that he held until his retirement in May 2016. Tr. I - 28:23 - 24; I - 29:1 - 3.

7. As Town Engineer, Mr. Willis was responsible, among other things, for reviewing subdivision plans, reviewing outside peer reviews of various plans, and designing road drainage and sidewalks or reviewing the designs of others. Tr. I - 29:12 - 30:1.

8. The Devans are husband and wife and have resided at 32 Boston Hill Road since their marriage 45 years ago. Tr. I - 147:3 - 6.

9. Mrs. Devan is a secretary and has worked in that capacity at several local hospitals. Tr. I - 147:3 - 6.

10. Mr. Devan was born on July 15, 1939, received a degree from Center Catholic High School in 1956 and obtained 60 college credits for course work at Merrimack College and Northeastern University. Tr. II - 173:24 - 174:9.

11. Mr. Devan served in the Coast Guard from 1958 until 1962 and was employed by the North Andover Fire Department for 30 years prior to his retirement. Tr. II - 117:19 - 118:1.

12. Mr. Devan has never had any employment in the construction industry, engineering, real estate or law. Tr. II - 118:2 - 10.

The Willis Properties

13. When Mr. Willis was in high school, he began dating Catherine Stewart, who then lived at 68 Boston Hill Road with her parents and who ultimately became Mr. Willis' wife. Tr. I - 31:21 - 32:1.

14. 68 Boston Hill Road then consisted of a house, barn and acreage. Tr. I - 33:9 - 14.

15. According to the deeds in the record of these proceedings, Mr. Willis' mother-in-law, Christine M. Stewart ("Ms. Stewart"), conveyed the barn to Mr. Willis and her daughter in two conveyances, one in January 1985, Ex. 2, and the second in 1988 to clarify that the 1985 deed was intended to convey all of the grantor's interest in the premises. Ex. 3.

16. Mr. Willis and his wife renovated the barn to serve as their home. Tr. I - 37:7 - 24.

17. The barn was known as 76 Boston Hill Road. Tr. I - 39:23 - 40:12.

18. At about that time, 76 Boston Hill Road was subdivided from the balance of Ms. Stewart's property. Tr. I - 38:4 - 19.

19. After Ms. Stewart's death, Mr. Willis, as Trustee of Alcor Nominee Trust, purchased Ms. Stewart's property from her estate in 2009. Ex. 6; Tr. I - 42:20 - 22.

20. The deed for that transaction describes the property as having an address of 68 Boston Hill Road and consisting of 16.5045 acres more or less. Ex. 6.

21. At some point, a lot with the house at 68 Boston Hill Road of approximately one acre was subdivided from the remaining acreage. See Ex. 9.

22. Mr. Willis also purchased property abutting Ms. Stewart's property at a foreclosure sale in 1989. Ex. 4; Tr. I - 42:14 - 20.

23. Mr. Willis subsequently sold both 68 Boston Hill Road, Ex. 9, and 76 Boston Hill Road, Ex. 11, in 2013 and 2015 respectively.

24. Mr. Willis retained ownership of the balance of the land subdivided from 68 Boston Hill Road and the land acquired through foreclosure in 1989. Tr. I - 43:3 - 21.

25. While Mr. Willis testified that the Willis Property consists of approximately 35 acres, consisting of 22 acres from Ms. Stewart's estate and the balance from the foreclosure proceedings, Tr. I - 177:13 - 178:9, a 2015 plan in the record entitled "Plan Of Land Located In North Andover, MA Prepared For Alcor Nominee Trust, Eugene P. Willis, Trustee 76 Boston Hill Road, North Andover, MA & Eugene P. Willis 76 Boston Hill Road North Andover, MA Date: July 14, 2015 Scale 1"=6' Christiansen & Sergi, Inc. Professional Engineers & Land Surveyors 160 Summer Street, Haverhill, Massachusetts 01830 www.CSI-ENGR.com Tel: 978-373-3960," Ex. 16, shows an area of 22.3 acres, and a deed to Mr. Willis as trustee in 2009 references a plan prepared for Ms. Stewart showing 16.5045 acres more or less. See also Ex. 33. [Note 2]

The Devan Property

26. The Devans' property is known as 32 Boston Hill Road, is bounded by that road to the north and by the Willis Property to the west, and contains approximately 1.37 acres ("the Devan Property"). Ex. 1.

27. Mr. Devan acquired the Devan Property in 1969 and then conveyed it to himself and his wife as joint tenants by deed dated June 21, 1976 and recorded in the Registry at Book 1284, Page 474. Ex. 1.

The Hawley Property

28. The Hawleys' property is known as 45 Boston Street, is bounded by Boston Hill Road to the north, by the Devan Property to the west and by Boston Street to the east, and contains approximately 1 acre ("the Hawley Property"). Ex. 5.

29. The Hawleys acquired the Hawley Property by deed dated February 27, 2004 and recorded in the Registry at Book 8592, Page 206. Id.

Boston Hill Road

30. Boston Hill Road is a paved lane of varying widths from 12' to 18' that commences at the intersection with Boston Street and progresses west up an incline past the Hawley Property at the corner of Boston Street and Boston Hill Road and then past the Devan Property. Ex. 33B; Tr. I - 32:18 - 33:6; I - 44:14 - 23.

31. Just past the westerly boundary of the Devan Property, Boston Hill Road continues as an unpaved and overgrown way along the northerly boundaries of the Willis Property, 68 Boston Hill Road and 76 Boston Hill Road. Ex. 33B; Tr. I - 41:2 - 25.

32. A paved driveway servicing the Willis Property, 68 Boston Hill Road and 76 Boston Hill Road continues onto those three properties from its intersection with Boston Hill Road just past the westerly boundary of the Devan Property. Ex. 33B; Tr. I - 41:2 - 8.

33. Boston Hill Road is bounded by stone walls on both sides. Tr. I - 44:22 - 23.

34. At the base of Boston Hill Road and across Boston Street, there is a single family home known as 10 Boston Street that was, at the times relevant to this matter, owned by one Mary Lou Salois ("Ms. Salois"). Tr. I - 45:19 - 46:1.

RECITATION OF THE EVIDENCE AT TRIAL

In this case, the facts regarding the negotiation and execution of the easement at issue are contested. The conflicting evidence is set forth below. The court's findings are set forth in the later discussion of the legal issues raised here.

Mr. Willis' Version Of Events

35. According to Mr. Willis, he learned at some point that Ms. Salois' son was interested in expanding the Town sewer system up Boston Street to serve his mother's property at 10 Boston Street. Tr. I - 45:16 - 46:6.

36. By late 2009, Mr. Willis learned that Ms. Salois' son was going to move forward with the sewer expansion to her property. Tr. I - 46:23 - 47:12.

37. At that time, Mr. Willis was engaged in a substantial renovation of the house at 68 Boston Hill Road and knew that the existing septic system for that property did not comply with Title V. Tr. I - 47:16 - 21.

38. As a result, Mr. Willis considered further expanding the Town sewer system up Boston Hill Road to serve 68 Boston Hill Road and his other property, the Willis Property. Tr. I - 47:22 - 48:3.

39. Mr. Willis estimated the cost of installing a new septic system at 68 Boston Hill Road, which he could design himself rather than pay others, to be approximately $25,000. Tr. I - 48:1 - 3, 13 - 17.

40. Mr. Willis estimated the cost of bringing the Town sewer system up Boston Hill Road to serve 68 Boston Hill Road and the Willis Property to be in the range of $75,000 to $100,000. Tr. I - 48:4 - 12.

Ethical Issues

41. At that time, Mr. Willis also considered his position as the Town Engineer. Tr. I - 48:18 - 22.

42. Mr. Willis was aware of the state ethics law, had attended three of the annual seminars regarding that law during his tenure as Town Engineer, knew that the extension of the Town sewer system to benefit his property posed a possible conflict of interest, and understood that he needed to file a financial disclosure form. Tr. I - 48:24 - 49:7.

43. As a result, on or about May 28, 2010, Mr. Willis prepared a form entitled "Disclosure Of Financial Interest By Municipal Employee And Determination By Appointing Authority As Required by 7 G.L. c. 268A, §19." Ex. 20; Tr. I - 49:8 - 9; I - 50:6 - 11.

44. In addition to this disclosure form, Mr. Willis also testified that he had discussed his plans with his two immediate supervisors, Director of the Department of Public Works, Bruce Thibodeau ("Mr. Thibodeau") and the head of the Sewer Department, Tim Willet ("Mr. Willet"). Tr. I - 49:15 - 20; I - 50:14 - 20; I - 51:3 - 11.

45. According to Mr. Willis, Mr. Thibodeau and Mr. Willet had been to Mr. Willis' home, knew that he owned the Willis Property, and were aware of Mr. Willis' personal interest in this sewer expansion. Tr. I - 55:1 - 13; I - 58:16 - 59:5.

Conversations With The Devans And The Hawleys

46. In the late winter or spring of 2010, Mr. Willis went to the Devans' home to discuss his plans with one or both of them (Mr. Willis could not recall if Mrs. Devan was present). Tr. I - 59:19 - 60:1; I - 62:4 - 6.

47. Mr. Willis testified that he told Mr., and maybe Mrs., Devan that, if he could get an easement to widen Boston Hill Road to access his other land, the Willis Property, that it would make sense to expand the sewer system rather than install a new septic system at 68 Boston Hill Road. Tr. I - 60:7 - 61:3.

48. According to Mr. Willis, the only purpose for bringing the Town sewer system up Boston Hill Road was to get to the Willis Property to further subdivide it, and the Town would not approve development of the Willis Property without a road widening easement. Tr. I - 61:6 - 13.

49. Mr. Willis testified that, at his meeting at the Devans' house, he told Mr. Devan words to the effect that "I've got to put a septic system in 68 Boston Hill Road, but if I can develop my land then it makes sense for me to bring a sewer up. But in order to develop my land, I need the road to be widened." Tr. I - 62:7 - 11.

50. Mr. Willis also testified that he told Mr. Devan that "if you [Mr. Devan] have sewer, you have much more flexibility." Tr. I - 62:15 - 16.

51. At that point, according to Mr. Willis, Mr. Devan told him that what Mr. Willis had said made sense to him and that Mr. Devan was agreeable to further pursuing the plan. Tr. I - 62:17 - 63:2.

52. Mr. Willis testified that he had the same conversation with the Hawleys, and that every conversation with the Devans and the Hawleys was the same. Tr. I - 63:16 - 24.

53. In his conversation with the Hawleys, Mr. Willis testified that the Hawleys told him that they did not need access to the Town sewer system because their septic system complied with Title V. Tr. I - 64:20 - 22.

54. Mr. Willis emphasized to them the value of a sewer connection if the Hawleys wanted to enlarge their house in the future. Tr. I - 64:22 - 65:4.

55. Mr. Willis also testified that the Devans and the Hawleys all knew that he owned the Willis Property, that his first choice was to sell the Willis Property to the Town, but that it was very clear that the Willis Property was not "going to continue to grow trees" unless the Town bought it with Community Preservation Act ("CPA") funds. Tr. I - 65:5 - 66:9.

56. After his initial meetings with the Devans and the Hawleys, Mr. Willis requested that C&S prepare a concept plan of the sewer going up Boston Hill Road and the road widening easement. Tr. I - 66:13 - 18.

57. Mr. Willis told Mr. Christiansen, who was preparing the concept plan, to show at least a 40' wide easement in order to obtain future Town planning board approval. Tr. I - 68:12 -15.

58. The concept plan, dated May 25, 2010 ("the 5/25/10 Sewer Plan"), shows the limits of Boston Hill Road, the proposed location of the sewer line, and the location of a "proposed 40' wide right-of-way." Ex. 13.

59. According to Mr. Willis, he took the 5/25/10 Sewer Plan to the Devans at their home shortly after it was prepared to show it to them and confirm that they were still agreeable to Mr. Willis' plan. Tr. I - 74:13 - 16.

60. Mr. Willis did not recall if Mrs. Devan was present, but recalled that he showed the 5/25/10 Sewer Plan to Mr. Devan and that Mr. Devan confirmed that the plan was what they had agreed to. Tr. I - 75:11 - 21.

61. Mr. Willis testified that he told Mr. Devan in this conversation that he was about to spend some "serious money" with C&S to prepare more formal plans. Id.

62. Mr. Willis testified that he had the same conversation with the Hawleys: here is a concept plan, I need an easement, you will get a sewer stub to your property if you give me the easement. [Note 3] Tr. I - 76:4 - 77:10.

63. Mr. Willis testified that he did not believe that he mentioned the road widening in his conversation with the Hawleys because, at that time, he thought that the Town was going to buy the Willis Property and so he did not then intend to build a road. Tr. I - 77:11 - 25.

64. Mr. Willis told the Hawleys that if they approved the 5/25/10 Sewer Plan, Mr. Willis would spend the money to design a sewer plan to be submitted to and approved by the Town, and to install the sewer extension. Tr. I - 78:22 - 79:12.

65. Mr. Willis then authorized C&S to prepare a formal plan for the sewer extension on Boston Hill Road and to submit it to the Town's Sewer Department. Tr. I - 80:9 -16.

66. At about that time, Mr. Willis also called the Town's legal counsel, Ms. McGravey, and told her that the abutters to Boston Hill Road would need to execute a road widening easement. Tr. I - 80:17 - 81:2.

67. C&S prepared a formal sewer extension plan entitled "Sewer Improvement Plan for Boston Hill Road In North Andover, Mass. Prepared For Alcor Realty 76 Boston Hill Road North Andover, MA 01845" and dated July 15, 2010 ("7/15/10 Sewer Plan"). Ex. 14; Tr. I - 81:8 - 15.

68. The 7/15/10 Sewer Plan was designed to accommodate Mr. Willis' development of the Willis Property, rather than simply to address the failed septic system at 68 Boston Hill Road: it called for 6" and 8" mains rather than the 4" and 6" mains that would be required for a residential service; and it called for larger man holes. Tr. I - 83:4 - 16.

69. Mr. Willis testified that he brought the 7/15/10 Sewer Plan and a sample road widening easement, one that he had previously used, to show to the Devans shortly after the 7/15/10 Sewer Plan was prepared. Tr. I - 84:12 - 22.

70. Mr. Willis testified that he told the Devans that the sample easement was "what the Town requires" for an easement, and that the 7/15/10 Sewer Plan was "what the Town requires" for a sewer main. Tr. I - 84:19 - 85:4.

71. Mr. Willis further testified that this third conversation with the Devans was "crunch time," and that he told them "this is what I am going to have to pay for. This is an easement that had been used before. This is what you're going to give me before I put anything in the ground. Things may be minorly tweaked, but basically this easement, they're just going to cut and paste your name into here and address. . . . You give me the easement, I'll put the pipe in the ground." Tr. I - 86:24 - 87:13.

72. Mr. Willis testified that he had the same conversation with the Hawleys: "I'm going to put a pipe in the ground and you are going to give me this easement." Tr. I - 87:17 - 23.

73. Mr. Willis testified that he had the 7/15/10 Sewer Plan and the sample easement with him when he met with the Hawleys. Tr. I - 88:7 - 12.

74. Mr. Willis told the Hawleys that the sample easement was what the Town had required previously and that "this is going to be more or less - is going to be executed for the same deal." Tr. I - 89:4 - 10.

75. Regarding the fact that the sample easement ran in favor of the Town, not Mr. Willis, Mr. Willis testified that it was general Town policy that off-site easements run in favor of the Town; that Mr. Willis did not know if he would ever need the easement, but that the Town might need it to improve Boston Hill Road, which was a dangerous intersection (a child had been injured there); and that the Town could widen Boston Hill Road and install sidewalks and drains, which would benefit both Mr. Willis and the Town. Tr. I - 89:11 - 90:24.

76. Mr. Willis further testified that he had seen easements used before "a couple of times" with respect to development projects in the Town. Tr. I - 91:7 - 16.

77. After his third meetings with the Devans and the Hawleys, Mr. Willis understood that he had an agreement with them that they would provide the easements. Tr. I - 93:7 - 16.

78. Mr. Willis would not have gone forward with expanding the Town sewer system up Boston Hill Road without the easements from the Devans and the Hawleys. Tr. I - 93:20 - 22.

79. At that point, Mr. Willis told C&S to prepare a plan for final approval by the Town Sewer Department. Tr. I - 94:3 - 7.

80. C&S revised the 7/15/10 Sewer Plan by revisions dated August 18 and 23, 2010, Ex. 15A, and that final design was approved by the Town and given to the contractor to install. Tr. I - 94:11 - 20.

81. At this point, Mr. Willis called the Town's counsel, Ms. McGravey, who he described as the person who "create[s] our easements." Tr. I - 97:14.

82. Mr. Willis forwarded to her a copy of the sample easement that he had showed to the Devans and the Hawleys, asked her to "cut and paste" the Devan and Hawley information into that form, and told her that he would get their signatures on the easements. Tr. I - 97:20 - 98:3; I - 98:15 - 19.

83. Ms. McGravey told Mr. Willis that she would need to draft easements specific to this project and could not simply cut and paste the Devans' and Hawleys' names into the form that Mr. Willis had provided. Tr. I - 98:21 - 99:5.

84. Mr. Willis told Ms. McGravey that the form that he had provided to her was what he had provided to the Devans and Hawleys, and that he would have to go back to them if she prepared a different form. Tr. I - 99:6 - 8.

85. As prepared by Ms. McGravey, the easements for the Devans and the Hawleys were almost identical to what Mr. Willis had provided to Ms. McGravey. Tr. I - 100:2 - 5.

86. Ms. McGravey also told Mr. Willis that she would need a plan to accompany the easements. Tr. I - 101:9 - 23; I - 103:1 - 4.

87. As a result, Mr. Willis contacted C&S to prepare such a plan. Tr. I - 101:24 - 102:3.

88. Thereafter, Mr. Willis dropped off execution versions of the easements with the Devans and the Hawleys, telling them that this was what he needed to go forward with the sewer expansion if the Board of Selectmen approved the easements. Tr. I - 102:22 - 104:25; I - 106:11 - 20.

89. Mr. Willis was not present when the Hawleys in August 2010, or the Devans on September 7, 2010, executed the easement documents. Tr. I - 106:24 - 107:19.

90. According to Mr. Willis, the Devans and the Hawleys returned the executed easements to him and he forwarded them to the Board of Selectmen for approval and acceptance. Ex. 31; Tr. I - 107:20 - 108:18.

91. After the easements were recorded, Mr. Willis' contractor installed the sewer line expansion in September 2010. Tr. I - 115:14 - 17; I - 159:19 - 21.

92. Mr. Willis estimated that he expended at least $70,000 for the design, sewer line installation and road paving to complete the expansion of the Town sewer system on Boston Hill Road. Tr. I - 161:12 -168:8.

Possible Sale Of The Willis Property To The Town

93. Thereafter, Mr. Willis pursued a sale of the Willis Property to the Town. Tr. I - 172:7 - 12.

94. The CPA committee required a commercial appraisal of the Willis Property as part of its consideration. Tr. I - 172:14 - 16.

95. As a result, Mr. Willis obtained such an appraisal, which reflected that the highest and best use of the Willis Property was as a 27 lot residential subdivision or as a continuing care retirement community. Tr. I - 172:14 - 25.

96. As part of the appraisal process, Mr. Willis obtained a drainage easement from the Hawleys. Ex. 12; Tr. I - 171:9 - 172:4.

97. C&S had determined that the Willis Property could not be developed without more drainage, as a result of which Mr. Willis told the Hawleys that he needed to show drainage on the plans that were the basis for the appraisal that would be submitted to the CPA committee. Tr. I - 175:11 - 176:5.

98. Mr. Willis testified that he told the Hawleys that the easement was needed to accommodate storm water runoff from the widened road, that he did not know what was going to happen, but that either he or someone else was going to develop the Willis Property if the CPA committee did not fund the acquisition of it. Tr. I - 176:8- 25.

99. At this point, Mr. Willis testified that he still thought that the road would not actually be built, but that if it were, he would make an additional payment of $2,000 to the Hawleys. Tr. I - 180:5 - 181:5.

100. Mr. Willis described this conversation as occurring at the Hawleys' kitchen table. Tr. I - 181:22.

101. According to Mr. Willis, the Willis Property was appraised as having a value in a range from $1.2m to $3-4m. Tr. II - 13:19 - 14:5.

102. At a CPA committee meeting in February 2015, the committee told Mr. Willis that it was not going to purchase undeveloped property with CPA funds. Tr. I - 185:17 - 23.

103. As a result, the possibility that Mr. Willis would develop the Willis Property increased. Tr. I -185:23 - 186:3.

104. Mr. Willis had earlier conversations with the purchasers of 68 Boston Hill Road, Ms. Flaherty, and 76 Boston Hill Road, Mr. Dube, both of whom asked what was happening with the Willis Property. Tr. I - 184:24 - 185:6.

105. Mr. Willis told them that it was his intention to have the Town purchase the Willis Property for open space but that, if not, he or someone else was going to develop it. Tr. I - 185:7 - 16.

106. After the CPA committee made its decision regarding the Willis Property, Mr. Willis spoke again with Mr. Dube, who offered to assist in fund raising to acquire the Willis Property. Tr. I - 189:24 - 191:3.

The Proposed Development Of The Willis Property

107. Shortly after the February 2015 CPA committee meeting, Mr. Willis contacted C&S to start the plans for the development of the Willis Property. Tr. I - 185:17 - 186:3.

108. Mr. Willis initially told C&S to prepare a one-house lot plan with frontage on a cul de sac. Tr. I - 187:16 - 188:24.

109. On or about July 6, 2016, C&S prepared plans for the improvement of Boston Hill Road showing the existing condition of Boston Hill Road and the proposed widened Boston Hill Road. Ex. 17.

110. On or about October 12, 2016, C&S prepared a definitive subdivision plan showing a cul de sac on the Willis Property coming off of the proposed widened Boston Hill Road ("the Definitive Subdivision Plan"). Ex. 18.

111. The Town Planner told Mr. Willis that the Town wanted to know what was going to be built on the Willis Property before agreeing to a one to three lot subdivision. Tr. I - 187:14 - 188:7.

112. In a meeting with the then Town Manager, Andrew W. Maylor ("Mr. Maylor"), about widening Boston Hill Road, a matter that would go before the Board of Selectmen, the Town Manager also told Mr. Willis that he wanted to know what Mr. Willis intended to do with the Willis Property. Tr. I - 189:14 - 189:19.

113. The Town Planner and the Town Manager both told Mr. Willis that the Town would not consider the Definitive Subdivision Plan. Tr. I - 193:8 - 11.

114. When Mr. Willis attempted to file the Definitive Subdivision Plan, it was refused because the Board of Selectmen had taken some action with respect to Boston Hill Road. Tr. I - 194:19 - 195:6.

115. At that time, Mr. Willis did not know what the Board of Selectmen had done, but he later learned that the Board of Selectmen had voted to rescind the easements granted to the Town by the Devans and the Hawleys, without any notice to Mr. Willis. Tr. I - 195:7 - 196:25.

Mr. Devan's Version Of Events

116. According to Mr. Devan, he was first approached by Mr. Willis regarding the sewer system extension during the early summer of 2010. Tr. II - 120:22 - 121:1.

117. Mr. Willis told Mr. Devan that Ms. Salois was thinking of connecting to the Town sewer system and that, if she did, Mr. Willis might connect the house he owned at 68 Boston Hill Road to the Town sewer system, too. Tr. II - 121:23 - 122:4.

118. Mr. Willis asked Mr. Devan if Mr. Devan would allow access by the Town onto his property if there was a problem with the sewer system. Tr. II - 122:13 - 18.

119. At that time, Mr. Willis did not describe the location of the sewer line. Tr. II - 122:22 - 23.

120. Later that summer, Mr. Willis told Mr. Devan that Mr. Willis was going to extend the sewer to 68 Boston Hill Road and that Mr. Devan would need to go to Town Hall to sign a document giving the Town the right to go on Mr. Devan's property to access the sewer line. Tr. II - 123:1 - 6.

121. Mr. Devan understood this to mean that the Town's Department of Public Works would be able to access the sewer line from his property. Id.; Tr. II - 125:20 - 25.

122. According to Mr. Devan, Mr. Willis did not have plans with him during either of these conversations. Tr. II - 123:9 - 124:17.

123. During these conversations, Mr. Willis told Mr. Devan that Mr. Willis would install a sewer stub for Mr. Devan's property when Mr. Willis constructed the sewer expansion. Tr. II - 124:18 - 25.

124. Mr. Devan did not have any interest in such a stub, but he did not object to it, either. Id.; Tr. II - 125:9 - 11.

125. Mr. Devan also testified that Mr. Willis told him that "it would be a toss up," equally expensive for Mr. Willis to install a new septic system at 76 Boston Hill Road or to extend the Town sewer to that property. Tr. II - 173:13 - 18.

126. Mr. Willis did not mention widening the road in these two conversations with Mr. Devan or at any time during 2010. Tr. II - 126:1 - 6.

127. According to Mr. Devan, Mr. Willis did not give Mr. Devan a copy of the easement to review. Tr. II - 126:15 - 17.

128. Mr. Devan testified that he saw the easement for the first time when he went to Town Hall to sign it on September 7, 2010. [Note 4] Tr. II - 128:15 - 18.

129. After signing the easement, Mr. Devan left it at the Town Hall and did not take a copy of it with him. Tr. II - 129:2 - 6.

130. Mr. Devan testified that, when he signed the easement agreement, he understood it to be a sewer easement because that is what Mr. Willis had told him that it was. Tr. II - 129:10 - 14.

131. Mr. Devan did not talk to anyone else before he signed the easement, did not hire an attorney to review it, had no understanding that it was a road widening easement when he signed it, and did not know that the Town or Mr. Willis could widen Boston Hill Road. Tr. II - 129:15 - 130:8.

132. Mr. Devan did not receive a copy of the letter that Mr. Willis sent to the Devans' lender in 2010 regarding the easement and was not aware that it had been sent at the time. Tr. II - 145:22 - 147:13.

133. Mr. Devan first learned that the easement was for more than a sewer in 2016, when a neighbor told him that he had signed a road widening agreement and showed him a copy of the easement that he had signed. Tr. II - 130:12 - 131:11.

134. Mr. Devan then investigated what could be done about this, in view of the fact that the easement was not what had been represented to him by Mr. Willis, a Town official. Tr. II - 131:12 - 132:6.

135. As a result, Mr. Devan ultimately hired a lawyer, [Note 5] a new easement was drafted that gave the Town the right to install, maintain and repair the existing sewer line, and the Board of Selectmen rescinded the earlier easement and accepted the new easement. Tr. II – 140:25 – 144:12.

Mr. Hawley's Version Of Events

136. By way of background, Mr. Hawley testified that he holds a bachelor's degree in technology from the New York Institute of Technology, received in 1987, and that he had most recently been employed as a quality assurance manager and content manager for a mail order catalogue company. Tr. III - 4:16 - 20; III - 5:9 - 12.

137. Mr. Hawley has no experience in civil engineering or in law. Tr. III - 5:18 - 22.

138. Mr. Hawley and his wife purchased their property in 2004. Tr. III - 5:23 - 24.

139. The house had been newly remodeled and had a newly installed septic system as of 2003. Tr. III - 6:15 - 18.

140. According to Mr. Hawley, Mr. Willis approached him in 2010, saying that Mr. Willis had discovered that he needed new septic systems for his properties, and that it was less costly for him to expand the Town sewer system than to replace the existing septic systems. Tr. III - 7:20 - 8:4.

141. Mr. Willis told Mr. Hawley that he would run the sewer line along the edge of the Hawleys' property. Tr. III - 8:19 - 22.

142. Mr. Willis did not show Mr. Hawley any plans during that conversation or at any other time. Tr. III - 8:23 - 9:7; III - 14:5 - 11.

143. At a second meeting at the Hawleys' house, Mr. Hawley and Mr. Willis walked the Hawleys' property and Mr. Hawley told Mr. Willis that Mr. Willis was to return the landscaping to its pre-existing condition once the project was complete in order to satisfy Mrs. Hawley, and Mr. Willis told him that restoration would not be a problem. Tr. III - 10:4 - 13; III - 13:1 - 9.

144. Mr. Hawley did not ask for anything other than that the property be returned to its original condition, but Mr. Willis offered that he would install a sewer stub. Tr. III - 12:10 - 21.

145. Mr. Hawley told him that that was nice, but not necessary, as Mr. Hawley did not want to connect to the Town sewer system. Tr. III - 12:24 - 13:1.

146. Mr. Willis then met with Mr. Hawley and his wife and asked them to sign an easement form that he brought with him. Tr. III - 10:4 - 13.

147. According to Mr. Hawley, Mr. Willis told them that the purpose of the easement was to install a sewer line that might possibly go under their property, and which was for Mr. Willis' houses, not for his undeveloped land. Tr. III - 10:14 - 18; III - 25:18 - 26:23.

148. Mr. Hawley understood the easement that he and his wife signed in August 2010 to allow Mr. Willis to install a sewer line in the road or partially on the Hawleys' property, and he thought that the easement was being granted to Mr. Willis, as an inhabitant of the Town and at his expense and for his benefit. Tr. III - 15:17 - 16:18.

149. Mr. Hawley signed the easement a week later, and separately from his wife. Tr. III - 16:23 - 17:3.

150. The Hawleys did not get legal advice before signing the easement because they did not think it was a big deal; they understood the project to consist of digging a small trench to install the sewer line and then replacing whatever had been moved during that process, and they understood the easement to be temporary. Tr. III - 17:4- 10.

151. Nothing in the easement that they signed indicated to the Hawleys that Boston Hill Road would be widened onto their land. Tr. III - 17:18 - 20.

152. The Hawleys were unaware at the time of the letter that Mr. Willis sent to their lender seeking approval of the easement that they had signed. Tr. III - 18:19 - 19:21.

153. Mr. Willis did not mention widening Boston Hill Road with Mr. Hawley in 2010, or the difficulty of access over Boston Hill Road. Tr. III - 13:12 - 17.

154. Mr. Hawley was surprised when the sewer line was installed because it never touched his property. Tr. III - 31:1 - 4.

155. Later, Mr. Hawley spoke with Mr. Willis about a master plan that Mr. Willis was preparing to present to the The Trustees Of Reservations ("TTOR"). Tr. III - 40:18 - 41:3.

156. Mr. Willis told him that the existence of the drainage easement would be necessary as part of the master plan to sell the Willis Property to TTOR. Tr. III - 41:10 - 14.

157. Mr. Willis did not tell him that there would be any change to Mr. Hawley's yard, or any trees removed, or any installation as a result of this easement. Tr. III - 74:6 - 13.

158. Mr. Hawley and his wife executed a document in 2015 that they understood granted Mr. Willis temporary permission to come on their property and survey a drainage area, which was part of Mr. Willis' plan to offer the Willis Property to TTOR. Ex. 12; Tr. III - 41:18 - 42:23.

159. In 2016, Mr. Hawley attended a meeting of his neighbors regarding the possible development of the Willis Property. Ex. 25; Tr. III - 48:5 - 18; 51:25 - 52:3.

160. Mr. Hawley testified that, while he understood the possibility of development, he was astounded that the 2010 easement had not been "closed out" at the completion of construction of the sewer expansion. Tr. III - 57:21 - 58:3.

161. As a result, Mr. Hawley went to the Board of Selectmen to make sure that the easement was no longer valid because the sewer expansion had been completed. Tr. III - 58:22 - 59:15.

162. A release of easement was executed by the Board of Selectmen and the Hawleys on November 14, 2016. Ex. 37; Tr. III - 61:2 - 24.

The Contemporaneous Written Record

163. On March 3, 2010, Mr. Willis sent a memorandum to the then Town Manager, Mark Rees ("Mr. Rees"), with copies to Mr. Thibodeau and Mr. Willet, in which Mr. Willis informed Mr. Rees of a potential conflict of interest: Ms. Salois was considering extending the Town's sewer system to her home and "I own (through Alcor Nominee Trust) a single family residential building at 68 Boston Hill Rd. I anticipate that it also has a septic system that does not conform to Title 5 regulations. If Ms. Salois extends the municipal sewer, it may be less costly for me to extend that sewer to 68 Boston Hill Rd. than to construct a sub-surface disposal system (septic system) on the property." Ex. 20 (emphasis added).

164. On May 27, 2010, Mr. Willis sent a memorandum to the Board of Selectmen, with copies to Mr. Rees and Mr. Thibodeau, informing them that C&S had recently been awarded two contracts by the Town at a time when Mr. Willis had hired C&S, whom he had engaged previously, to do work for him personally "on my property." Ex. 20.

165. Both the March 3, 2010 memorandum and the May 27, 2010 memorandum were attached to a form entitled "Disclosure Of Financial Interest By Municipal Employee And Determination By Appointing Authority," which form was signed by Mr. Rees indicating that the financial interest identified was not so substantial as to likely affect the integrity of the services that the Town may expect from the employee. Ex. 20.

166. On July 19, 2010, Mr. Willis sent an email to Ms. McGravey attaching draft grants of easement for the Hawleys and the Devans and telling Ms. McGravey that "[w]e are extending sewer in the shoulders of Boston St. & Boston Hill Rd. We have negotiated attached easements for sewer lien/roadway." Ex. 40.

167. The attached easements granted to the Inhabitants of the Town "the non-exclusive perpetual right and easement over the following land to pass and repass over said easement area and to use said easement area as public ways are used in the Town of North Andover." Ex. 40.

168. In the ensuing exchange of emails, Ms. McGravey asked for copies of easement plans, Mr. Willis sought approval of the easement language before the plans were prepared, Ms. McGravey reiterated that she needed to see plans before approving the easement language, Mr. Willis sought clarification of the process by which the easements became effective and noted that "[t]he contractor would like to install pipes next week, if possible," Ms. McGravey warned that "work in the easement area is not authorized until the easements are signed, accepted by the BOS and recorded," and Mr. Willis informed her: "This work is being done for private home owners with failed septic systems. It is being paid for by private residents. We just want the easements for future maintenance and access if needed." Ex. 44.

169. By email dated July 30, 2010 from Ms. McGravey to Mr. Willis, Ms. McGravey expressly asked what was the purpose of the easements: "The drafts only mention purposes for which public ways are used, but I want to be sure that you get the rights that you need." Ex. 46.

170. In his initial emailed response on August 2, 2010, Mr. Willis stated: "I'd like to get as much latitude as possible for potential future use even though not planned for presently (roadway, water & sewer, drainage, other?) therefore wouldn't 'purposes for which public ways are used' be appropriate?" Ex. 47.

171. In a second response later that day, Mr. Willis stated that "[w]hen DPW was first approached about this work, the drafts that I sent to you are what I showed the homeowners. I told them that we would basically need these easements executed by them. I said town counsel had to review and draft the final version. You know how a change can give residents concern so I would prefer not to change them as much as possible." Ex. 46.

172. On August 12, 2010, Ms. McGravey sent Mr. Willis revised easements, which now added the phrase "including but not limited to the installation, repair and maintenance of municipal utilities" to Mr. Willis' proposed language regarding use "as public ways are used in the Town of North Andover." Ex. 45.

173. On September 8, 2010, Mr. Willis sent Mr. Rees a memorandum, with a copy to Mr. Thibodeau, regarding "Boston Hill Rd. sewer easements" in which Mr. Willis attached the executed easements or approval by the Board of Selectmen and stated: "The purpose for these easements is to extend municipal sewer to #68 Boston Hill Rd. which has a failed septic system. The property was purchased in Dec. 2009 by Alcor Realty Nominee Trust for which I am trustee." Ex. 31 (emphasis added).

174. By letter to the Board of Selectmen from Mr. Willis also dated September 8, 2010, Mr. Willis enclosed the two easements executed by the Hawleys and by the Devans and stated that "[t]he purpose of the easements is to allow Alcor Realty Nominee Trust, Eugene P. Willis trustee, to extend municipal sewer to a residence at 68 Boston Hill Rd. which presently has a failed septic system. There are no costs to be incurred by the town for this extension; the design and installation will be paid for by Eugene Willis." Ex. 32 (emphasis added).

175. The September 20, 2016 minutes of the Town's Board of Selectmen's meeting reflect the following entry under the consent agenda: "Grant of Easement - Municipal Sewer Extensions Richard Nardella made a MOTION, seconded by Tracy Watson, to approve an easement at 45 Boston Street and 32 Boston Hill Road to extend the municipal sewer to residents because of failed septic systems. Vote approved 5-0." Ex. 41 (emphasis added).

176. On September 27, 2010, Mr. Willis arranged for the recording of the two Grants of Easement together with plans showing the easement area encumbered by each grant. Exs. 7-8.

177. By letter to the Hawleys' lender dated September 27, 2010, Mr. Willis enclosed an "Assent to Easement" for the lender's signature and a copy of the easement signed by the Hawleys, stating that "[t]he purpose of the easement is to allow for the extension of the municipal sewer to the property at 45 Boston St. and beyond. There are no costs incurred by the Grantor for this sewer installation. The easement has no effect on property lines or existing setbacks." Ex. 39.

178. By letter of the same date to the Devans' lender, Mr. Willis made the same statements, except that the extension of the municipal sewer was to "the property at 32 Boston Hill Rd. and beyond." Id.

179. In a "memo to file" dated September 29, 2010, Ms. McGravey stated: "Note that today's receipt of the memo dated September 8, 2010 was the first notice this office received that Gene Willis is the owner of the property at #68 Boston Hill Road. No request was made of this office re: any possible conflict of interest." Ex. 48. [Note 6]

180. By letter dated September 7, 2017 from Mr. Maylor to the Hawleys, Mr. Maylor informed the Hawleys that, after examining the easement and the actual placement of the sewer line in Boston Hill Road, the Town had determined that the easement was not necessary as the sewer line was not installed within the easement area, and that "[s]ince the easement is not needed, the Town is proposing to terminate and void the easement." Ex. 43.

DISCUSSION

Mr. Willis contends that, in reliance on the Devans' commitment to grant an easement in the form that they executed in 2010, Mr. Willis expended substantial sums of money to expand the Town sewer system to the Willis Property and that he would not have done so in the absence of that commitment, an argument based on the theory of promissory estoppel. Mr. Willis also contends that he and the Devans were parties to an express contract, the requirement of a writing evidencing the same being satisfied by the easement signed by the Devans, which the Devans breached when they provided the Town with a substitute easement in 2016. The Devans contend that they were fraudulently induced to grant the easement, the terms of which did not reflect what had been represented to them by Mr. Willis; that their commitment is void because it is lacking in consideration to them; and that the substitute easement granted by them to the Town in 2016 satisfies their commitment to Mr. Willis. The arguments based on promissory estoppel and breach of contract are addressed in turn.

Promissory Estoppel

Promissory estoppel [Note 7] "consists simply of a promise that becomes enforceable because of the promisee's reasonable and detrimental reliance." Suominen v. Goodman Indus. Equities Mgmt. Group, LLC, 78 Mass. App. Ct. 723 , 701 (2011), quoting Rooney v. Paul D. Osborne Desk Co., 38 Mass. App. Ct. 82 , 83 (1995). The Restatement formulation, which has been cited favorably by the Supreme Judicial Court, [Note 8] states:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Restatement (Second) of Contracts § 90 (1981).

The Supreme Judicial Court has outlined three elements to a claim for promissory estoppel:

Circumstances that may give rise to an estoppel are (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.

Anzalone v. Admin. Office of the Trial Court, 457 Mass. 647 , 661 (2010) quoting Sullivan, 448 Mass. at 27-28, and Bongaards v. Millen, 440 Mass. 10 , 15 (2003). "All of the elements of estoppel must be present and the party asserting the estoppel theory 'has a heavy burden to prove that all three elements are present.'" Sullivan, 448 Mass. at 28, quoting Clickner v. Lowell, 422 Mass. 539 , 544 (1996).

Reliance by the party asserting the estoppel must be reasonable. Sullivan, 448 Mass. at 28, quoting Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119 , 125 (1992) ("The reliance of the party seeking the benefit of estoppel must have been reasonable."); Barrie-Chivian v. Lepler, 87 Mass. App. Ct. 683 , 685 n.8 (2015) ("Promissory estoppel requires more than 'mere' reliance; it requires a showing that the promise was intended to induce reliance, and that such reliance was reasonable.") citing Anzalone, 457 Mass. at 661.

Notably, consideration is not required. Rhode Island Hosp. Trust Nat'l Bank v. Varadian, 419 Mass. 841 , 850 (1995) ("The clear implication of our decision in Loranger, supra, is that an action based on reliance is equivalent to a contract action, and the party bringing such an action must prove all the necessary elements of a contract other than consideration."); 2 Corbin, Contracts, §5.1 (rev. ed. 1995) (citing promissory estoppel as an example of a contract enforceable without consideration).

The Supreme Judicial Court's decision in Anzalone is of particular relevance to this case. There, the plaintiff appealed from a judgment of the trial court dismissing his claims against the Administrative Office of the Trial Court and the Chief Justice for Administration and Management of the Trial Court ("CJAM"). The plaintiff had completed an employment application in which he named three relatives as employed within the Massachusetts judicial system, but neglected to name three others, as a result of which the CJAM did not approve his appointment. The plaintiff contended that he had been appointed as a probation officer by the Commissioner of Probation and then wrongfully denied that appointment by the CJAM's untimely and improper failure to approve the appointment, and asserted, among others, a claim based on detrimental reliance.

Regarding the detrimental reliance claim, the Anzalone court described it as "essentially . . . a claim for promissory estoppel." 457 Mass. at 661. The plaintiff contended that the Commissioner of Probation appointed him as a probation officer with the intent that the plaintiff forego other employment opportunities and accept the appointment, that the plaintiff reasonably relied on that appointment as being imminent, and that the plaintiff was harmed by the CJAM's refusal to accept the appointment. Id. at 661-662. The Supreme Judicial Court rejected the plaintiff's argument, finding that the plaintiff's reliance was unreasonable as a matter of law both because the plaintiff knew that his appointment was contingent on the CJAM's approval and because of the trial court's nepotism standards and the plaintiff's "own incomplete disclosure on the employment application." Id.

As applied to this action, Mr. Willis bears the burden of proof as to all three elements of estoppel, a burden that he has failed to carry with respect to two of the three elements. The first element requires proof of a representation intended to induce reliance on the part of the person to whom the representation is made. If the court credited Mr. Willis' testimony that he told the Devans of his plans, not just to correct the failing septic system at 68 Boston Hill Road, but also to provide access to the Town sewer system and a widened Boston Hill Road for purposes of the future development of the Willis Property at a far greater cost to him, then the Devans' agreement to provide an easement to accomplish those goals could constitute such a representation. However, the weight of evidence in this case does not support Mr. Willis.

Mr. Devan testified that Mr. Willis only told him that Mr. Willis wanted to connect 68 Boston Hill Road to the Town sewer system, that the cost to Mr. Willis of replacing the septic system or extending the Town sewer system was a "toss up," that the easement Mr. Willis was seeking was a "sewer easement," and that Mr. Willis did not mention widening Boston Hill Road during their conversations. Mr. Hawley testified consistently with Mr. Devan: that Mr. Willis approached Mr. Hawley because the septic system of Mr. Willis' property was failing; that it was less costly for him to expand the sewer system than to replace the septic system; and that the purpose of the easement was to install a sewer line to Mr. Willis' houses, not to his undeveloped land. Similarly, the Hawleys did not understand that Mr. Willis intended to widen Boston Hill Road onto their land.

Even Mr. Willis testified that he told the Devans and the Hawleys that the form of easement that he was requesting that they execute was "what the Town required" when it was he who told Ms. McGravey what he wanted for easement language. Similarly, Mr. Willis testified that he told the Devans and the Hawlyers that the 7/15/10 Sewer Plan was "what the Town required" for a sewer main. In fact, according to Mr. Willis, the 7/15/10 Sewer Plan called for larger mains and larger man holes than would be required to connect 68 Boston Hill Road to the Town sewer system. The easement and the 7/15/10 Sewer Plan were both designed to accommodate Mr. Willis' future development of the Willis Property.

Perhaps most tellingly, Mr. Willis' contemporaneous writings confirm Mr. Devan's and Mr. Hawley's testimony, not his. In Mr. Willis' first communication to the then Town Manager in March 2010, Mr. Willis stated that "[i]f Ms. Salois extends the municipal sewer, it may be less costly for me to extend that sewer to 68 Boston Hill Rd. than to construct as sub-surface disposal system (septic system) on the property." In his email exchange with Ms. McGravey, Mr. Willis informed her, without mentioning his personal involvement in the matter, that "[t]his work is being done for private home owners with failed septic systems. It is being paid for by private citizens. We just want the easements for future maintenance and access if needed." In his memorandum to the then Town Manger in September 2010, enclosing the easements executed by the Devans and the Hawleys, Mr. Willis stated that "[t]he purpose for these easements is to extend municipal sewer to #68 Boston Hill Rd. which has a failed septic system." And, in his letter to the Board of Selectmen in September 2010 regarding the easements, Mr. Willis stated that "[t]he purpose of the easements is to allow Alcor Realty Nominee Trust, Eugene P. Willis trustee, to extend municipal sewer to a residence at 68 Boston Hill Rd. which presently has a failed septic system."

Based on this evidence, the court concludes that Mr. Willis only told the Devans and the Hawleys about his intent to expand the Town sewer system to 68 Boston Hill Road, did not tell them that it would be at a substantially greater cost to Mr. Willis than replacing the existing septic system at 68 Boston Hill Road, and did not tell them about any potential plans to further develop the Willis Property, or the necessity of widening Boston Hill Road to do so, or that the road widening would be over their properties. Without that knowledge, the Devans cannot be found to have made a representation to Mr. Willis with the intent that he rely on it to accomplish goals of which they were completely unaware.

The second element of promissory estoppel requires an act or omission in reasonable reliance on the representation made. As was the case in Anzalone, Mr. Willis cannot be found to have reasonably relied on representations made by the Devans in response to his own incomplete (at best) disclosures.

In addition to the elements described above, the Supreme Judicial Court has also stated that "the doctrine of estoppel is not applied except when to refuse it would be inequitable." Cleaveland v. Malden Sav. Bank, 291 Mass. 295 , 297 (1935). This is in accord with the Restatement, quoted above. On these facts, Mr. Willis has not shown that injustice can be avoided only by enforcement of the Devans' promise. In fact, the contrary would appear to be true.

Breach Of Contract

The findings of fact relevant to Mr. Willis' promissory estoppel claim are equally relevant to Mr. Willis' breach of contract claim and the Devans' defense thereto that any agreement between them is unenforceable because of fraud in the inducement. [Note 9] "One party cannot enforce a contract against another whose signature he has procured by fraud or fraudulent misrepresentations, which induced the signer reasonably to believe and understand that the instrument was substantially different from what it really was." Boston Five Cents Sav. Bank v. Brooks, 309 Mass. 52 , 56 (1941). Accord Restatement (Second) of Contracts §164 (1981) ("If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient."). "Deception need not be direct to come within reach of the law. Declarations and conduct calculated to mislead and which in fact do mislead one who is acting reasonably are enough to constitute fraud." Boston Five Cents Sav. Bank, 309 Mass. at 56.

Mr. Willis' statements and conduct were deceptive. As outlined above, he did not tell the Devans his true intent, which was to put the pieces in place to render the Willis Property developable, whether for purposes of valuing the Willis Property in a sale to the Town or, failing that, for purposes of developing it himself. Instead, he told them that the limited purpose of the easement was for the expansion of the Town sewer system for the benefit of 68 Boston Hill Road. While what matters here is what he said, or did not say, to the Devans, Mr. Willis' entire course of conduct is telling. He did not reveal his true interest and intent to the then Town Manager, Mr. Rees, to the Town's counsel, Ms. McGravey, or to the Board of Selectmen. In fact, in his communications with Ms. McGravey, Mr. Willis stated that the proposed work was being done "for private home owners with failed septic systems," not for him, and that the easements were "for future maintenance and access if needed," not for the possible development of the undeveloped Willis Property. That Ms. McGravey felt the need to document the fact that she was unaware of Mr. Willis' interest in 68 Boston Hill Road until September 29, 2010, after the easements had been executed by the Devans and Hawleys, accepted by the Board of Selectmen and recorded at the Registry of Deeds, is equally telling.

Mr. Willis contends that he "offered to extend the Town's public sewer system up Boston Hill Road and to provide the Devans with a connection stub in exchange for the Devans' granting of the [2010] Easement." Plaintiff's Post-Trial Memorandum at 21. Based on this record, this court concludes that the Devans' "agreement," if as Mr. Willis describes, was induced by Mr. Willis' fraud and is voidable by the Devans.

CONCLUSION

For the foregoing reasons, judgment shall enter on Counts I, II and III of the second amended complaint dismissing those counts with prejudice and, on Count IV, declaring that there is no enforceable agreement between Mr. Willis and the Devans under the terms of which the Devans are to provide Mr. Willis with an easement over the Devan Property for the benefit of Mr. Willis or the Willis Property.