EVAGELOS A. PISTOFTZIAN v. JOSE A. CARRASQUILLO

Relying on the principles most familiarly set forth in McCarthy v. Tobin, 429 Mass. 84 (1999), Evagelos A. Pistoftzian seeks to specifically enforce a counteroffer for the purchase of property in Watertown from Jose A. Carrasquillo, notwithstanding the parties' failure to execute a purchase and sale agreement by the deadline set in the counteroffer. On Pistoftzian's motion for summary judgment, the court finds that the counteroffer states all material terms, but that there are issues of fact as to whether the parties legitimately failed to negotiate a purchase and sale agreement by the deadline, thus voiding the counteroffer, or whether they impliedly or explicitly agreed to extend the deadline, thus making the counteroffer enforceable. Because that question must be tried, the motion for summary judgment will be denied.

Procedural History

On May 18, 2018, plaintiff Evagelos A. Pistoftzian (Pistoftzian) filed his Complaint (Compl.). The case management conference was held on June 12, 2018. On June 20, 2018, defendant Jose A. Carrasquillo (Carrasquillo) filed his Answer.

Pistoftzian filed Plaintiff's Motion for Summary Judgment (summary judgment motion), Brief in Support of Plaintiff's Motion for Summary Judgment, Statement of Undisputed Material Facts in Support of Plaintiff's Motion for Summary Judgment (Pl.'s SOF), and Appendix in Support of Plaintiff's Motion for Summary Judgment on September 14, 2018 (Pl.'s App.). Carrasquillo filed Defendant's Opposition to Plaintiff's Motion for Summary Judgment, Defendant's Brief in Opposition to Plaintiff's Motion for Summary Judgment, Statement of Disputed and Undisputed Facts in Opposition to Plaintiff's Motion for Summary Judgment, and Affidavit of Jose A. Carrasquillo in Opposition to Plaintiff's Motion for Summary Judgment on October 19, 2018. On October 29, 2018, Plaintiff filed Plaintiff's Reply brief, Plaintiff's Reply to Defendant's Statement of Disputed and Undisputed Facts, and Appendix in Support of Reply Brief.

The Plaintiff's Motion to Strike and Memorandum in Support of Plaintiff's Motion to Strike was also filed on October 29, 2018. Carrasquillo filed Defendant's Opposition to Plaintiff's Motion to Strike on November 7, 2018. At a conference on November 7, 2018, the court denied Plaintiff's Motion to Strike without prejudice. At this same conference, the court allowed further discovery and continued consideration of Plaintiff's Motion for Summary Judgment until the end of discovery. On November 27, 2018, Pistoftzian filed Plaintiff's Motion to Amend Complaint and Plaintiff's Motion Regarding Jurisdiction of Count III of the First Amended Verified Complaint. The court denied Plaintiff's Motion to Amend Complaint in this court's Order Denying Plaintiff's Motion to Amend Complaint, which was issued on December 6, 2018. On February 22, 2019, the Order of Assignment for Case No. 1881 CV 003562 was issued.

On March 4, 2019, Carrasquillo filed Defendant's Brief in Opposition to Plaintiff's Motion for Summary Judgment, Defendant's Opposition to Plaintiff's Motion for Summary Judgment, Statement of Disputed and Undisputed Facts in Opposition to Plaintiff's Motion for Summary Judgment (Def.'s SOF), Affidavit of Correction of Jose A. Carrasquillo, Appendix in Opposition to Motion for Summary Judgment (Def.'s App.), and Affidavit of Jose A. Carrasquillo in Opposition to Plaintiff's Motion for Summary Judgment. Pistoftzian filed Plaintiff's Second Reply Brief, Plaintiff's Reply to Defendant's Statement of Disputed and Undisputed Facts (Pl.'s SOF Resp.) and Appendix in Support of Plaintiff's Second Reply Brief (Pl.'s Supp. App.) on March 15, 2019. On March 20, 2019, the court heard Plaintiff's Motion for Summary Judgment and took the motion 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).

Facts

The following facts are undisputed:

1. Carrasquillo owns the property known as 311 North Beacon Street in Watertown, Massachusetts (the property) by a deed dated October 19, 1983 and recorded with the Middlesex South Registry District of Land Court as Document No. 649699, Certificate of Title No. 169217. Pl.'s SOF ¶ 1; Def.'s SOF ¶ 1.

2. On or about April 23, 2018, Pistoftzian sent a written offer to purchase the property for consideration of $1,500,000 (the offer) to Carrasquillo. Pl.'s SOF ¶ 2; Def.'s SOF ¶ 2.

3. The offer was electronically signed by Pistoftzian and stated that "I, Angelo Pistoftzian, hereby offer to buy said Property…under the following terms and conditions" which included a description of the property, total purchase price, deposit requirements, closing date, statement concerning the real estate broker's commission, financing contingency provision, and inspection contingency provision. Pl.'s SOF ¶ 3; Def.'s SOF ¶ 3; Pl.'s App. pp. 18-20.

4. The offer included a term requiring a mutually agreeable purchase and sale agreement (the P & S) to be executed by 5:00 P.M. on May 2, 2018 (the P & S deadline) and provided that time is of the essence. Pl.'s SOF ¶ 3; Def.'s SOF ¶ 3; Pl.'s App. p. 18.

5. On April 25th or 26th of 2018, Carrasquillo met with his real estate broker Albert Bouchie (Bouchie) and his real estate attorney Sami Baghdady (Baghdady) to discuss the offer. Def.'s SOF ¶ 39; Pl.'s SOF Resp. ¶ 39; Def.'s App. pp. 3, 25; Pl.'s Supp. App. pp. 14-15, 22-26.

6. At this meeting, Bouchie crossed out the provisions making the purchase contingent upon inspection, Phase 1 Environmental Report of the property, and financing. A provision was added that "buyer will allow seller to stay until August 30, 2018, rent free." Pl.'s App. 19; Def.'s SOF ¶ 40; Pl.'s SOF Resp. ¶ 40.

7. At the above mentioned meeting, Carrasquillo signed the offer with the above mentioned changes (the counteroffer). Def.'s SOF ¶ 42; Pl.'s SOF Resp. ¶ 42; Def.'s App. pp. 4, 23.

8. Pistoftzian did not re-sign the counteroffer or initial the changes made by Bouchie. Def.'s App. pp. 18-21. On or about April 26, 2018, Pistoftzian tendered a $10,000 deposit to Coldwell Banker, Carrasquillo's listing agent as required under the counteroffer. Pl.'s SOF ¶ 5; Def.'s SOF ¶ 5; Def.'s App. p. 21.

9. On Friday, April 27, 2018, Angela Conforti (Conforti), an associate of Baghdady's, emailed a draft P & S to PeggyAnn K. Wollman (Wollman), Pistoftzian's attorney. Def.'s SOF ¶ 44; Pl.'s SOF Resp. ¶ 44; Def.'s App. pp. 27-29.

10. On Tuesday, May 1, 2018, Conforti emailed Wollman to ask for comments on the P & S and to remind her that the P & S needed to be signed by May 2, 2018. Def.'s SOF ¶ 47; Pl.'s SOF Resp. ¶ 47; Def.'s App. p. 30.

11. Later on May 1, 2018, Wollman sent Conforti a revised version of the P & S. Def.'s SOF ¶ 48; Pl.'s SOF Resp. ¶ 48.

12. On May 2, 2018, Conforti emailed Wollman to ask for a one-day extension of the P & S deadline. Pl.'s SOF ¶ 9; Def.'s SOF ¶ 9; Def.'s App. p. 34.

13. Neither Pistoftzian nor Carrasquillo signed the P & S by the P & S deadline. Def.'s SOF ¶ 51; Pl.'s SOF Resp. ¶ 59.

14. On May 3, 2018, Conforti emailed Wollman to ask for another one-day extension of the P & S deadline. Pl.'s SOF ¶ 10; Def.'s SOF ¶ 10; Def.'s App. p. 38.

15. On May 4, 2018, in response to a question from Wollman about when Conforti would review the P & S with her client, Conforti noted "[t]he P & S is in the hands of the brokers now." Pl.'s SOF ¶ 11; Def.'s SOF ¶ 11; Pl.'s App. p. 52.

16. On May 8, 2018, Wollman emailed Conforti a copy of the most recent version of the P & S signed by Pistoftzian and a copy of a deposit check in the amount of $65,000. Pl.'s SOF ¶ 15; Def.'s SOF ¶ 15; Pl.'s App. p. 54.

17. Later on May 8, 2018, Baghdady emailed Wollman that "[t]he [P & S] has not yet been agreed to by the Seller. We still have no final agreement." Pl.'s SOF ¶ 17; Def.'s SOF ¶ 17; Def.'s App. p. 45.

18. In the evening of May 8, 2018, Wollman asked Baghdady about Carrasquillo's objections to the P & S. Def.'s SOF ¶ 57; Pl.'s SOF Resp. ¶ 57.

19. On May 9, 2018, Baghdady emailed Wollman objections concerning various representations, such as environmental and building code representations, and the P & S's requirement of a use and occupancy agreement, which Carrasquillo or his lawyers had not seen. Def.'s SOF ¶ 59; Pl.'s SOF Resp. ¶ 59; Def.'s App. p. 50.

20. Within twenty minutes of receiving Carrasquillo's objections, Wollman agreed to delete the objected provisions concerning representations from the P & S. Later on May 9, 2018, Wollman emailed Baghdady a copy of a draft use and occupancy agreement. Pl.'s SOF ¶¶ 21-22; Def.'s SOF ¶¶ 21-22; Pl.'s App. p. 59.

21. Later on May 9, 2019, Baghdady emailed Wollman that "the transaction has terminated" and that he was "not authorized to continue negotiating…." Pl.'s SOF ¶ 23; Def.'s SOF ¶ 23; Pl.'s App. p. 65.

Discussion

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. Under the proper circumstances, a written offer to purchase real estate that requires the execution of a P & S may constitute an enforceable contract even if the parties do not execute a P & S. See McCarthy, 429 Mass. at 87-88 (1999) (offer to purchase real estate was enforceable where offer was signed by the buyer and seller and includes "the amount to be paid and when, describes the property bought, and specifies for how long the offer was open."); A.B.C. Auto Parts, Inc. v. Moran, 359 Mass. 327 , 329 (1971) (deposit check that was endorsed with description of property and total purchase price was enforceable). A preliminary agreement creates a binding contract if the agreement resolves "all significant economic issues." Goren v. Royal Invs., Inc., 25 Mass. App. Ct. 137 , 141 (1987).

In the summary judgment motion, Pistoftzian seeks specific performance of the counteroffer; that is, a judgment from this court that Carrasquillo convey him the property on the terms of the counteroffer. For such a judgment to enter, the undisputed facts must show that (a) Carrasquillo made the counteroffer; (b) the counteroffer was accepted; (c) the counteroffer contains sufficient materials terms to make it binding on the parties; and (d) the subsequent failure to execute the P & S by the date set by the counteroffer, as extended, did not constitute a failure to meet a condition subsequent. While the undisputed facts establish points (a), (b), and (c), there is a dispute of material fact about the circumstances surrounding the failure to execute the P & S. Pistoftzian's motion must therefore be denied and this case set down for trial.

The first issue is whether Carrasquillo made the counteroffer to Pistoftzian to sell him the property. The counteroffer is in writing, and Carrasquillo both initialed the changes he made to Pistoftzian's initial offer and signed the counteroffer. That is sufficient to show that Carrasquillo made the counteroffer. Carrasquillo argues that he did not intend to be bound by the counteroffer because he did not understand the purpose of the document. This argument fails because Carrasquillo objectively manifested his assent to the counteroffer's terms by signing it. See Bushskin Assocs., Inc. v. Raytheon Co., 815 F.2d 142, 146 (1st Cir. 1987) ("[C]ontracts depend on objective manifestations of consent and not on uncommunicated subjective expectations."). Carrasquillo is the party that is sought to be bound by the written counteroffer; his signature on the counteroffer means that if it was accepted and is enforceable, he is bound to perform.

The second question is whether Pistoftzian accepted the counteroffer. He did not sign the counteroffer. However, he did tender a $10,000 deposit to Coldwell Banker, Carrasquillo's listing agent as required under the counteroffer. This check was a writing sufficient to constitute an acceptance of the counteroffer. See A.B.C. Auto Parts, Inc., 359 Mass. at 329 (deposit check could create enforceable written contract).

The next question is whether the accepted counteroffer contained sufficient terms to create an enforceable contract to sell the property to Pistoftzian. Here, the counteroffer used contractual language such as "I, [Pistoftzian] hereby offer to buy said Property" and "[t]his offer is hereby accepted." The counteroffer included the description of the property, total purchase price, deposit requirements, closing date, and how long the offer was to remain open. These are more than sufficient terms. See McCarthy, 429 Mass. at 88; A.B.C. Auto Parts, Inc., 359 Mass. at 329.

The counteroffer also included the term that Carrasquillo would be allowed to stay on the property rent-free until August 30, 2018. Carrasquillo argues that he had planned to move to Puerto Rico following the sale of the property. He argues that his concerns about moving to Puerto Rico following hurricane Maria made the terms of his post-closing stay essential terms of the bargain. Although the counteroffer provided for a rent-free period, it did not address the consequences of Carrasquillo's staying past this period. This point was raised for the first time after the counteroffer was signed. This is the sort of detail that, while not agreed on in the counteroffer, could be part of the negotiations for the P & S without affecting the counteroffer's enforceability. See McCarthy, 429 Mass. at 87 (buyer's revisions to P & S affected "ministerial and nonessential terms of the bargain") (citation omitted); Goren, 25 Mass. App. Ct. at 141. Disputed issues that are material to the negotiation of a purchase and sale agreement do not render an accepted offer unenforceable simply because they were not resolved at the offer stage; the relevant question is whether the accepted offer contained all material terms. Goldberg v. Savitz, 26 LCR 362 , 370 (2018). The accepted counteroffer contained all the material terms necessary to make it binding.

The final issue is whether the subsequent failure to execute the P & S by the date set by the counteroffer, as extended, rendered the counteroffer void. The counteroffer provided that the parties would, "on or before 5:00 P.M. on May 2, 2018, execute[] a mutually acceptable Purchase and Sale Agreement." Pl.'s App. 18. The counteroffer further provided that "[t]ime is of the essence hereof." Id. at 19. When parties agree that time is of the essence, "[c]ourts hold parties to deadlines they have imposed on themselves…." McCarthy, 429 Mass. at 88, citing Vickery v. Walton, 26 Mass. App. Ct. 1030 , 1031 (1989). Thus, "[a]bsent a waiver, the deadline for the execution of a P & S is a condition subsequent where 'without an executed [P & S] by that date, the [offer to purchase] provides that the parties' obligations to each other are extinguished.'" Goldberg, 26 LCR at 370, quoting McCarthy, 429 Mass. at 88. Because the counteroffer provided that time is of the essence, without a waiver of the P & S deadline, the parties' obligations to each other disappeared after the P & S Deadline. See id. at 370-371.

"The issue of waiver is ordinarily one for the fact finder." McCarthy, 429 Mass. at 88 n.5. Where facts are undisputed, courts look to the words and conduct of the parties to determine waiver. See id. at 88 n.5; Church of God in Christ, Inc. v. Congregation Kehillath Jacob, 370 Mass. 828 , 833-834 (1976) (party's conduct constituted waiver where seller accepted buyer's payments and buyer continued performing its obligations under contract). For example, in McCarthy, the seller's lawyer sent the first draft of a P & S after the agreed August 16th deadline. McCarthy, 429 Mass. at 86. Over the ensuing days, the parties' lawyers discussed the P & S, but they did not discuss extending the P & S deadline nor did the seller's lawyer object that the deadline had expired. Id. On August 25th, the parties reached agreement on the P & S, but it was not signed by the buyer until August 26th. Id. Holding that the seller had waived the agreed P & S deadline, the court ruled that "time was no longer of the essence." Id. at 89. Although the parties disputed whether the lawyers had decided to sign and deliver the agreed P & S by August 25th or 28th in the lawyers' August 25th conversation, the court deemed this dispute "irrelevant in light of the consequences of the waiver" of the P & S deadline. Id. at 89 n.6.

Here, attorney Conforti requested one-day extensions of the P & S deadline on May 2nd and 3rd. On May 4th, attorney Conforti emailed Attorney Wollman that "[t]he P & S is in the hands of the brokers now." Pl.'s SOF ¶ 11; Def.'s SOF ¶ 11; Pl.'s App. p. 52. While attorney Conforti's words and conduct during the period from May 2nd to May 4th "implied that a date later than [the P & S Deadline] was satisfactory," the parties did discuss extending the P & S deadline during this period. See McCarthy, 429 Mass. at 86 (noting lawyers had not discussed extending P & S deadline during the period after P & S deadline when they negotiated P & S). On May 8th, attorney Baghdady emailed Attorney Wollman that "[t]he [P & S] has not yet been agreed to by the Seller. We still have no final agreement." Def.'s App. p. 45. On May 9th, attorney Baghdady sent Attorney Wollman one email concerning Carrasquillo's objections to the most recent P & S and another email noting that Carrasquillo had not received a draft of the use and occupancy agreement. Pl.'s SOF ¶ 23; Def.'s SOF ¶ 23; Def.'s App. pp. 50, 55. Attorney Baghdady claims his May 9th emails were sent as a "courtesy" rather than as negotiation. Def.'s App. pp. 47-48. Thus, viewing the evidence in the light most favorable to Carrasquillo, a genuine issue of material fact exists as to whether the emails and communications between Baghdady and Wollman constituted ongoing negotiations past the P & S deadline, thus constituting a waiver of the deadline, or whether the parties did not extend or waive the deadline, so that the failure to agree to the P & S rendered the parties' agreement in the counteroffer void. See Regis College, 462 Mass. at 294; Goldberg, 26 LCR at 370-371 (failure to extend P & S deadline voids agreed offer); Privitera v. Cappozzoli ex rel. Carl II Realty Tr., Middlesex County Superior Court, No. 994927 (June 27, 2001), 2001 WL 914551 at *2 (denying summary judgment where each party "dispute[d] each others' [sic] characterizations of those facts that took place after [the P & S deadline] and the inferences to be drawn therefrom"). Thus, while the counteroffer is binding, the issue of whether the parties waived the P & S deadline or failed to meet the deadline must be tried.

Conclusion

For the foregoing reasons, Plaintiff's Motion for Summary Judgment is DENIED. A telephone status conference is set down for August 27, 2019 at 9:30 a.m.

SO ORDERED