PANKAJ MERCHIA v. SHERRY L. FEMMINO and SYLVIA FEMMINO.

Sherry Femmino (Sherry) and her mother Sylvia Femmino (Sylvia) jointly own the house at 1633 Centre Street, Boston, where they live with Sherry's two sons. For the past several years, Sherry had a practice of listing the house for sale on Zillow.com. In early September 2017, Pankaj Merchia (Merchia) contacted Sherry about purchasing the house. They exchanged telephone calls and emails, and Merchia sent Sherry a draft purchase and sales agreement, but Sherry and Sylvia ultimately declined to sell the house to Merchia. Merchia believed that Sherry and Sylvia had entered a binding agreement with him to sell him the property, and now seeks to enforce that agreement. Sherry and Sylvia have moved for summary judgment. As discussed below, the undisputed facts disclose that the parties never reached a binding agreement on essential terms and that Sherry was never the agent for Sylvia. The summary judgment motion will be allowed, and judgment shall enter dismissing Merchia's amended complaint.

Procedural History

The Complaint in this action was filed on October 4, 2017. The Answer of Sherry L. Femmino was filed on October 13, 2017. The Motion to Amend Complaint and Motion for Lis Pendens were filed on November 2, 2018. On November 15, 2017, the court allowed the Motion to Amend the Complaint, denied the Motion for Lis Pendens, and deemed the Amended Complaint (Am. Compl.) served and filed. The Defendants' Answer to Plaintiff's Amended Complaint was filed on December 4, 2017.

The Defendant Sherry Femmino's Motion for Sanctions Based on Plaintiff's Improper Contact with a Represented Party (Motion for Sanctions), Affidavit of Sherry Femmino in Support of Motion for Sanctions Based on Contact with a Represented Party, and Affidavit of Attorney Roshan Jain in Support of Motion for Sanctions Based on Plaintiff's Improper Contact with a Represented Party were filed on November 15, 2017. The Opposition to Defendant Sherry Femmino's Motion for Sanctions Based on Alleged Improper Contact with a Represented Party and Affidavit of Plaintiff Pankaj Merchia were filed on November 30, 2017. The court denied the Motion for Sanctions in its Order on Defendant's Motion for Sanctions issued on December 12, 2017.

The Defendants' Motion for Summary Judgment, Statement of the Issues Presented, and Memorandum of Law in Support of Motion for Summary Judgment; Defendants' Concise Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (Defs.' SOF); Affidavit of Sylvia Femmino in Support of Motion for Summary Judgment; Affidavit of Sherry Femmino in Support of Motion for Summary Judgment; Affidavit of Roshan Jain; and Defendants' Appendix of Exhibits were filed on February 19, 2019. The court heard the Defendants' Motion for Summary Judgment on March 19, 2019, and took the matter under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed or deemed admitted: [Note 1]

1. Sherry and Sylvia reside at 1633 Centre Street, Boston, Massachusetts (property) with Sherry's three sons. Defs.' SOF ¶ 1.

2. Sherry and Sylvia have owned the property as joint tenants since on or about April 1999 and have resided at the property together for more than a decade. Defs.' SOF ¶ 2.

3. The property was originally purchased by Sylvia's parents. Sylvia has resided at the property since she was 13 years old. Defs.' SOF ¶ 3.

4. Sherry listed the property on Zillow.com for several years during the summer months to see if she could attract a significant offer for the property. Defs.' SOF ¶ 4.

5. Sylvia was generally aware that Sherry had listed the property on Zillow.com at various times. Defs.' SOF ¶ 5.

6. At no time did Sylvia authorize Sherry to act on her behalf to sell the property. Defs.' SOF ¶ 6.

7. At no time did Sylvia engage Sherry to act as her real estate agent for any purpose. Defs.' SOF ¶ 7.

8. At no time did Sylvia authorize Sherry to act on her behalf to accept any offers to purchase the property. Defs.' SOF ¶ 8.

9. At no time did Sylvia authorize Sherry to act on her behalf to make any offers for the sale of the property. Defs.' SOF ¶ 9.

10. In early September 2017, Merchia contacted Sherry and expressed interest in purchasing the property. Defs.' SOF ¶ 10.

11. On the evening of September 4, 2017, Sherry had a phone conversation with Merchia during which Merchia asked Sherry if he would accept $950,000 to purchase the property. Defs.' SOF ¶ 11.

12. While Merchia was still on the phone line, Sherry got Sylvia's attention and asked if she would accept $950,000 for the property. Defs.' SOF ¶ 12. Sylvia responded, "No" or "Na." Defs.' SOF ¶ 13.

13. At no time during Sherry's phone call with Merchia did Sylvia know who was on the other end of the phone line or hear anything that Merchia said. Defs.' SOF ¶ 14.

14. At no time during Sherry's phone call with Merchia did Sylvia participate in the call, speak with or to Merchia, or hear what he was saying to Sherry. Defs.' SOF ¶ 15.

15. Sylvia does not know Merchia, and other than her deposition in this case, she has never met him, seen him, spoken with him, or corresponded with him in any way. Defs.' SOF ¶16.

16. When Sherry checked her sfemmino@yahoo.com email on the morning of September 5, 2017, she noticed an email from Merchia which included as an attachment a modified Standard Residential Purchase and Sale Agreement for the property with a purchase price of $950,000. Paragraph 23 of the attached draft purchase and sale agreement, entitled "Additional Provisions," provided that:

This offer to purchase Premises shall be null and void if a signed copy of this Agreement is not sent by Seller to Buyer by 10am on Wednesday September 5, 2017. Seller may send the signed agreement by email …or by fax…

Defs.' SOF ¶ 17; Defs.' App. Exh. D.

17. The email address sfemmino@yahoo.com was created by and belongs to Sherry. Sherry has had and continues to have exclusive access and control over that email address from the time she created it through the present. Defs.' SOF ¶ 18. Sylvia has never had any access or control to or over the email address sfemmino@yahoo.com. Defs.' SOF ¶ 19.

18. Sherry has never sent or received any email or other written correspondence related to selling the property on behalf of Sylvia. Defs.' SOF ¶ 20.

19. At no time did Sylvia do anything to authorize Sherry to act on her behalf to (1) correspond with Merchia or anyone else regarding making or accepting offers to sell the property, (2) make or accept any offers to sell the property, or (3) enter into any agreement to sell the property. Defs.' SOF ¶ 21.

20. Sherry responded to Merchia's email at approximately 10:18 a.m. on September 5, 2017, stating that "…we would not be interested in any offers less than $1,000,000 (so that would obviously be our counter offer)." Sherry's email did not include any potential terms other than price. Defs.' SOF ¶ 22. Sherry did not have Sylvia's consent or authority to send the 10:18 a.m. email on behalf of Sylvia and Sylvia did not know Sherry had sent the email until sometime after Merchia initiated this action in October 2017. Defs.' SOF ¶ 23.

21. At approximately 12:26 p.m. on September 5, 2017, Merchia sent Sherry an email with a new offer and attached a modified Standard Residential Purchase and Sale Agreement. In his email Merchia wrote:

Attached is a contract at $1 million.

Please confirm this is acceptable so that I may mail you a check and plan a trip to Boston later this week.

The attached draft purchase and sale agreement included new terms for the potential sale, including (1) a closing date of October 19, 2017, (2) a deposit amount of $10,000, and (3) a new date and time the offer would expire. Paragraph 23 of the attached Standard Residential Purchase and Sale Agreement, entitled "Additional Provisions," provided that:

This offer to purchase Premises shall be null and void if a signed copy of this Agreement is not sent by Seller to Buyer by 11:59pm on Tuesday September 5, 2017. Seller may send the signed agreement by email …or by fax…

Defs.' SOF ¶ 24; Defs.' Exh. F.

22. Merchia admits that the 12:26 p.m. email contained a new offer to purchase the property.

Defs.' SOF ¶ 25.

23. Sherry did not accept the new offer set forth in Merchia's 12:26 p.m. email and otherwise did not respond to the email. Defs.' SOF ¶ 26.

24. Merchia sent Sherry another email at 1:11 p.m. on September 5, 2017, which read:

Hi Sherry,

Thanks [sic] you for your message and counter offer.

I hereby accept your counter-offer and am mailing you a check for $10,000 via USPS tracking number…

Attached is an acceptance of your counter-offer with a purchase price of one million dollars ($1,000,000).

Defs.' SOF ¶¶ 28-29; Defs.' App. Exh. H.

25. The "acceptance" attached to the 1:11 p.m. email was another modified Standard Residential Purchase and Sale Agreement form. It provided for a deposit of $10,000 and a closing date of September 29, 2017, and did not include the additional provisions previously included in paragraph 23 of the two previous draft documents. Defs.' SOF ¶¶ 28-29; Defs.' App. Exh. H.

26. Sherry did not respond to Merchia's 1:11 p.m. email. Defs.' SOF ¶ 30.

27. Sylvia never signed or executed any agreement to sell the property. Defs.' SOF ¶ 31.

28. Thereafter, Merchia inundated Sherry with email, text, and phone communications to the extent that she became concerned for the health, welfare, and safety of her family. Defs.' SOF ¶ 32.

29. Because of Merchia's conduct Sherry retained the Law Offices of Jessica Clarke, P.C. to handle Merchia's communications and after that time had no further direct contact with Merchia. Defs.' SOF ¶ 33. Sherry retained the Law Offices of Jessica Clarke, P.C. to represent her individually. The Law Offices of Jessica Clarke, P.C. never represented Sylvia in any capacity. Defs.' SOF ¶ 34.

Discussion

Merchia brought this action alleging that he has a contract with Sherry and Silva for the purchase of the property and seeking either specific performance of the alleged contract or money damages for alleged harms sustained by Merchia in the event that he is unable to purchase the property. Sherry and Sylvia have moved for summary judgment seeking to have Merchia's claims dismissed. They argue that (1) the parties did not form a binding contract for the sale of the property, (2) Sylvia never agreed to sell the property to Merchia, and (3) Sherry was without the authority to bind Sylvia to any alleged contract for the sale of the property.

Massachusetts Rules of Civil Procedure Rule 56(e) provides that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Id. As Merchia filed no response to Sherry and Sylvia's motion, "summary judgment, if appropriate, shall be entered against him." Id. The question is whether the record now before the court contains sufficient undisputed facts so that summary judgment in favor of Sherry and Sylvia is appropriate and the Amended Complaint may be dismissed.

Merchia alleges that Sherry's email at 10:18 a.m. on September 5, 2017, was an offer for the sale of the property and his responses at 12:26 p.m. and 1:11 p.m. that same day were an acceptance of that offer creating a binding contract for the sale of the property. In support of this position Merchia argues that even though the property was held jointly by Sherry and Sylvia, Sherry was an agent of Sylvia and possessed the authority to bind her in a contract for the sale of the property. As a preliminary matter the court considers whether the content of these communications would be sufficient, irrespective of the agency question, to form a binding agreement.

Contracts for the sale of land are enforceable only if they are supported by a writing that includes the agreement's essential terms and is signed by the party against whom enforcement is sought. G.L. c. 259, § 1, Fourth. To be binding, a contract for the sale of land must state all the significant economic terms in the transaction. McCarthy v. Tobin, 429 Mass. 84 , 86-88 (1999); Goren v. Royal Inv., Inc., 25 Mass. App. Ct. 137 , 141 (1987), Donius v. Milligan, 24 LCR 440 , 443 (2016). In the typical course of a real estate transaction in Massachusetts, the parties first execute a written offer to purchase which anticipates the further negotiation and execution of a more detailed purchase and sale agreement for the property in question. See generally McCarthy, 429 Mass. at 86-88. If signed offer to purchase contains sufficient terms, it is a writing that binds the parties thereto to an agreement for the sale of real estate even if it contemplates future negotiations over nonessential terms of the agreement. Id. at 87-88.

The analysis begins with the alleged offer. In an email to Merchia, sent at 10:18 a.m. on September 5, 2017, Sherry wrote:

Hi Pankaj,

Thank you for your interest in our property at 1633 Centre Street, West Roxbury, MA. As I stated during out phone conversation on September 4th, we are not interested in any offers less than $1,000,000 (so that would obviously be our counter offer). If you think you would accept out counter offer, we could schedule a visit to our home at your convenience. Having your mail sent here and setting up FIOS would not be a problem. I have another house in mind that I could make an offer for but I don't know exactly how fast I could move along that purchase. My three sons are 7, 9, and 11; I would need to find a house quickly in a desirable school system…

Best,

Sherry

Defs.' App. Exh. E; Am. Compl. Exh. K. This email is a writing signed by Sherry. The question is whether it contains the essential terms necessary to form a contract if it were to be accepted. In A.B.C. Auto Parts, Inc. v. Moran, 359 Mass. 327 (1971) (A.B.C.), Supreme Judicial Court (SJC) found that a writing contained essential terms where it "clearly indicate[d] the nature of the transaction, the parties, the locus of the property, and the purchase price. No essential element of a contract for the sale of land was omitted." Id. at 329. On its face Sherry's 10:18 a.m. email appears to present an offer which includes the nature of the transaction, the purchase price, and the locus of the property. It does not, however, identify both sellers, Sherry and Sylvia, who would be necessary parties to the contract. Further, Sherry's email does not address a deposit. This court in Fiore v. Lindsey, 25 LCR 768 (2017), distinguished A.B.C., finding that "even in A.B.C., the writing contained more terms than the price, parties, and property. The writing itself was on the back of a check intended to act as a deposit to bind the seller pending completion of the sale. The deposit is a significant economic term in any real estate transaction, and the lack of any provision for a deposit means that no contract has been formed and the parties cannot be bound." Id. at 770, citing McCarthy, 429 Mass. at 85; Goren, 25 Mass. App. Ct. at 138, 141; Donius, 24 LCR at 443. Sherry's email lacked essential terms necessary to form the basis of a contract. Therefore, no response from Merchia could, as a matter of law, form a contract for the purchase of the property that would bind the parties.

That conclusion notwithstanding, the court turns to the effect, if any, of Merchia's responses. In his email at 12:26 p.m. on September 5, 2017, Merchia stated, in part, "[a]ttached is a contract at $1 million. Please confirm this is acceptable so that I may mail you a check and plan a trip to Boston later this week." Defs.' App. Exh. F. The document attached to the email was a draft purchase and sale agreement which specified a closing date and deposit amount and stated that "[t]his offer to purchase Premises shall be null and void if a signed copy of this Agreement is not sent by Seller to Buyer by 11:59pm on Tuesday September 5, 2017." Defs.' App. Exh. F.

As a rule, if a purported acceptance of an offer varies the terms of the offer, there is no binding contract. David J. Tierney, Jr., Inc. v. T. Wellington Carpets, Inc., 8 Mass. App. Ct. 237 , 240-241 (1979). Further, when an offeree "accepts" the offer, but adds to the acceptance material conditions not contained in the original offer, it has made a counteroffer requiring acceptance by the original offeror in order to create a binding contract. See Tull v. Mister Donut Dev. Corp., 7 Mass. App. Ct. 626 , 631 (1979) (documents revised "in more than trifling detail" stood as a counteroffer); Peretz v. Watson, 3 Mass. App. Ct. 727 , 728 (1975); Restatement (Second) of Contracts § 59 (1981). Here, Merchia's first purported "acceptance" described itself at paragraph 23 as an "offer to purchase" and stated that it "shall be null and void if a signed copy of this Agreement is not sent by Seller to Buyer by 11:59pm on Tuesday September 5, 2017." Defs.' App. Exh. F. A document which by its own terms requires an affirmative act by the alleged offeror in order for the agreement to ripen into a binding contract—in other words an acceptance—cannot be an effective acceptance of an offer. Rather, it is a counteroffer. A counteroffer "is in effect a rejection" of the initial offer. Peretz, 3 Mass. App. Ct. at 728. "[A]n offer once rejected cannot thereafter be revived by an attempted acceptance thereof." Id.

Further, Merchia's first purported acceptance stated, for the first time in his communications with Sherry, a closing date and a deposit amount. As discussed, the amount of a deposit required in a real estate transaction is a material term. Were Merchia's first purported acceptance treated by this court as forming a binding contract, Sherry and Sylvia would be bound to a contract which includes a deposit amount dictated solely by the buyer. Here, Merchia's proposed deposit of $10,000 is only one percent of the purchase price. While this may have been acceptable to Sherry and Sylvia following a negotiation, as a matter of law a response to a purported offer which introduces a term essential to the contract, and allows the offeror no opportunity for negotiation of the term, is a counteroffer which functions as a rejection of the initial offer and does not form an enforceable contract.

In his second purported acceptance in an email to Sherry at 1:11 p.m. on September 5, 2017, Merchia further attempts to cast Sherry's 10:18 a.m. email as a counteroffer to his initial offer of $950,000. The text of the email states that Merchia "hereby accepts [Sherry's] counter- offer" and attaches another form purchase and sale agreement which contains the same deposit provision as the first, an earlier closing date, and no acceptance provision in paragraph 23 as the previous two drafts had contained. Defs.' App. Exh. H. This purported acceptance is also of no effect, because it gives the offeror no opportunity to negotiate the deposit amount stated in the purported acceptance. Moreover, the second purported acceptance has no effect because the first purported acceptance served as a counteroffer and a rejection of the initial offer (if it could indeed be characterized as an offer at all). This rejection means that the initial offer "cannot thereafter be revived by an attempted acceptance thereof." Peretz, 3 Mass. App. Ct. at 728. [Note 2]

Having found that as a matter of law Sherry's email at 10:18 a.m. on September 5, 2017, could not have been an offer for the sale of the property and in any event neither of Merchia's purported acceptances of that alleged offer could have formed a contract for the sale of the property, it is unnecessary to reach the issue of whether and agency relationship existed between Sherry and Sylvia such that Sherry's communications could have bound Sylvia in a contract with Merchia for the sale of the property. Nevertheless, in the interest of completeness, the court turns briefly to the issue of agency.

In a contract for the sale of real estate, "[t]he signature of a duly authorized agent, rather than the party to be charged, is sufficient to be binding." St. Johns Holdings, LLC v. Two Electronics, LLC, 24 LCR 654 , 658 (2016), citing Slover v. Carpenter, 24 LCR 1 , 4 (2016) and A.B.C., 359 Mass. at 329; aff'd Mass. App. Ct., No. 16-P-1701(Nov. 15, 2017) (Rule 1:28 Decision). There are two theories of agency which could imbue Sherry with the authority to bind Sylvia in a contract for the sale of the property, actual authority and apparent authority. Actual authority is an agent's power to affect the principal's relations with third parties and is grounded in the principal's actions towards the agent, through words or conduct, and towards the agent's reasonable understanding of the principal's manifestations. Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736 , 742-743 (2000); Kirkpatrick v. Boston Mut. Life Ins. Co., 393 Mass. 640 , 645 (1985); Barrow v. Dartmouth House Nursing Home, Inc., 86 Mass. App. Ct. 128 , 132 n.8 (2014); Restatement (Third) of Agency §§ 2.01, 3.01 (2006). In contrast, "[a]pparent authority is 'created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.'" Theos & Sons, Inc., 431 Mass. at 745, quoting Restatement (Second) of Agency § 27 (1958).

Merchia argues that Sherry had the authority to bind Sylvia in a contract for the sale of the property because Sherry was a licensed real estate agent listing the property for sale with Sylvia's knowledge and further that Sylvia was aware of and consented to the terms of the purported agreement discussed by Sherry and Merchia. This argument is belied by the law and the undisputed facts in the summary judgment record which were not opposed by Merchia. In the context of a real estate transaction, the SJC has held that "[a] real estate agent or broker is not an agent of general powers. As a rule he has no authority to bind his principal beyond the terms of the specific authority conferred upon him by the agreement for employment." Harrigan v. Dodge, 216 Mass. 461 , 463 (1914), citing Coddington v. Goddard, 16 Gray 436 , 445 (1860) and Stollenwerck v. Thacher, 115 Mass. 224 , 227 (1873). Moreover, the record reflects that at no time did Sylvia actually authorize Sherry to make or accept any offers to sell the property or enter into any agreement to sell the property on her behalf. Sherry did not possess actual authority to bind Sylvia.

This does not foreclose to possibility that Sherry possessed the apparent authority to do so. The record is devoid, however, of any factual evidence which would tend to support a finding that there was any conduct by Sylvia which could reasonably have been interpreted by Merchia as authorizing Sherry to enter a contract for the sale of the property on her behalf. The record reflects that Sylvia had no access to or control over Sherry's email account and that during the September 4, 2017, phone call between Sherry and Merchia, Sylvia had no knowledge of who was on the other end of the call and said nothing more than "no" or "na" when Merchia's offer of $950,000 was conveyed to her. To the extent that Sherry's use of plural pronouns such as "we" or "our" may have lead Merchia to believe that she was acting on Sylvia's behalf, such a conclusion in light of the limited contact he had with either Sherry or Sylvia was unreasonable. Moreover, the use of those words by Sherry, the supposed agent, rather than by Sylvia could not be the basis for finding that Sherry had the apparent authority necessary to bind Sylvia.

At oral argument, Merchia argued that his continued communications with Sherry's attorney, see Am. Compl. ¶¶ 26-28 & Exhs. G, K, raise an issue as to whether Sherry believed that she had reached an agreement with him or had extended the deadline for reaching an agreement. Based on the undisputed facts, there was no agreement between Sherry and Sylvia on the one hand and Merchia on the other, and any continued discussions were negotiations that did not result in an agreement. To the extent that Merchia has raised a promissory estoppel argument, see Am. Compl. ¶¶ 26-28 & Exhs. G, K, he has provided no evidence which supports his detrimental reliance on any representation made by Sherry or Sylvia. See Cellucci v. Sun Oil Co., 2 Mass. App. Ct. 722 , 728 (1974) ("essential factors giving rise to an estoppel are…(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made. (2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3) Detriment to such person as a consequence of the act of omission." (internal citations and quotations omitted)).

Conclusion

Summary judgment dismissing the Amended Complaint is appropriate because the undisputed facts reflect that (1) the assent of both Sherry and Sylvia was required to form a contract for the sale of the property, Sylvia was not a party to the email which Merchia alleges constituted the offer, and Sherry was not an agent for Sylvia capable binding her interest in the property; (2) the alleged offer by Sherry lacked material terms necessary for the formation of a contract for the sale of the property; and (3) the purported acceptances by Merchia constituted counteroffers which did not have the effect of forming a binding contract for the sale of the property.

For the foregoing reasons, the Plaintiffs' Motion for Summary Judgment is ALLOWED. Judgment shall enter dismissing the Amended Complaint with prejudice.

SO ORDERED