CHRISTOPHER MARTORELLA vs. STUART RAPP, ESQ., as Partition Commissioner in Stark v. Martorella, 17 MISC 000634 (Land Court); JEFFREY STARK, RACHEL ONALDSON, and LAURA MARTORELLA

This case presents to this Court the first dispute, but likely not the last, concerning the effects of the COVID-19 pandemic upon what once was considered normal commerce. While the virus itself is novel, and while it has had a devastating effect upon the family of plaintiff Christopher Martorella, the principles that guide the Court's decision in this case - chiefly, the common law concerning when performance under a contract may be temporarily excused, owing to unforeseen circumstances that have made one party's performance temporarily impossible --are not new. They dictate that this Court must dismiss Mr. Martorella's claims.

This Court docketed Mr. Martorella's verified complaint on April 6, 2020. He moved at that time under M.G.L. c. 184, §15(b), for endorsement of a memorandum of lis pendens, which he intended to record against the title of a residence at 15 Wigwam Road in Nantucket, Massachusetts. See McMann v. McGowan, 71 Mass. App. Ct. 513 , 519 (2008), quoting Wolfe v. Gormally, 440 Mass. 669 , 700 (2004) ("A memorandum of lis pendens is a notice on the record title of real estate that reflects the pendency of any action that 'affects the title to real property or the use and occupation thereof.'"). Martorella and his family have spent numerous summers at 15 Wigwam Road, and he was the winning bidder at an auction for the property.

After an emergency telephonic hearing on April 6, 2020 (the pandemic having prevented the Court from convening any in-person proceedings), the Court denied the requested endorsement, without prejudice to Mr. Martorella renewing his motion. On April 17, 2020, Martorella amended his complaint. He asked again under §15(b) for endorsement of a memorandum of lis pendens.

Three of the four defendants named in the amended complaint -- Commissioner Stuart Rapp, Jeffrey Stark, and Laura Donaldson -- opposed Mr. Martorella's motion. They also filed pursuant to c. 184, §15(c), special motions to dismiss the complaint. (The fourth defendant in this case, Laura Martorella, is Mr. Martorella's spouse. She did not oppose her husband's motion for endorsement of a memorandum of lis pendens, nor did she move to dismiss his amended verified complaint. But for simplicity's sake, this Order will use "Defendants" to describe all defendants except for Laura Martorella.) The parties appeared on May 27, 2020 for a telephonic hearing on their motions.

Chapter 184, §15(c) allows the filing of a "special motion to dismiss" in any action in which a party seeks, or has received, judicial endorsement of a memorandum of lis pendens. Section 15(c) provides that a special motion to dismiss

shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds. In ruling on the special motion to dismiss the court shall consider verified pleadings and affidavits, if any, meeting the requirements of the Massachusetts rules of civil procedure.

In Ferguson v. Maxim, 96 Mass. App. Ct. 385 , 389-390 (2019) (citations and footnote omitted, brackets in original, quoting Benoit v. Fredrickson, 454 Mass. 148 , 154 n.7 (2009)), the Appeals Court observed that a special motion to dismiss under §15(c)

shares some features with a special motion to dismiss pursuant to G. L. c. 231, §59H, the "anti-SLAPP" statute: like a special motion to dismiss pursuant to § 59H, and unlike a motion pursuant to Mass. R. Civ. P. 12(b)(6), . . . a special motion to dismiss under §15(c) requires the motion judge to consider alleged facts beyond the plaintiff's initial pleading and, based on those allegations, to determine whether the plaintiff's claims are devoid of a factual or legal basis. In the context of a special motion to dismiss pursuant to §15(c), the burden is on the defendant to demonstrate, by a preponderance of the evidence, that the plaintiff's claim is completely lacking in "reasonable factual support . . . or . . . any arguable basis in law." As with a special motion to dismiss pursuant to §59H, "[t]he question to be determined by a judge in deciding a special motion to dismiss [under §15(c)] is not which of the parties' pleadings and affidavits are entitled to be credited or accorded greater weight," but whether the party with the burden of proof (here, the defendants) has shown that the claim made by the moving party was devoid of any reasonable factual support or arguable basis in law.

See also DeCicco v. 180 Grant Street, LLC, 484 Mass. 1037 (2020) (rescript) (noting similarities between §15(c) and §59H special motions to dismiss).

The parties have submitted several verified pleadings and affidavits. The facts they present are largely undisputed. Whenever those materials present a disagreement over facts, the Court has viewed the record (as Ferguson directs) in Mr. Martorella's favor.

Here's what the parties' sworn materials and the docket in Stark v. Martorella, 17 MISC 000634 (Mass. Land Ct.), show. Fifteen Wigwam Road is the subject of Stark, which is an action for partition pursuant to M.G.L. c. 241. That action is pending before the undersigned judge. Fifteen Wigwam Road's three owners are defendants Stark (a former business associate of Mr. Martorella's, see Affidavit of Matthew Samuelson, Sr., ¶ 3 ("Samuelson Affidavit")), Ms. Donaldson (Stark's spouse), and Ms. Martorella. Stark and Donaldson petitioned for partition of 15 Wigwam Road in November 2017.

Defendant Commissioner Stuart Rapp is the court-appointed commissioner in Stark. This Court charged him in early 2018 with investigating and recommending the best way to partition 15 Wigwam Road. In April 2018, the Commissioner recommended that the property be sold through a real-estate broker, with the net proceeds of the sale divided among the property's three owners. Mr. Stark and Ms. Donaldson agreed with that recommendation, but Ms. Martorella opposed it, contending that (if given a few months) she would be able to buy Stark and Donaldson's interests in the property. This Court eventually adopted the Commissioner's recommendation, and in June 2018, this Court issued a warrant to the Commissioner to sell 15 Wigwam Road through a real-estate broker. Ms. Martorella attempted to appeal the warrant, but she filed her appeal too late.

Fifteen Wigwam Road sat on the market from June 2018 to October 2019. Despite the broker's efforts, various repairs directed by the Commissioner, and several price reductions, the Commissioner received no satisfactory offers for the property. In November 2019, upon the Commissioner's recommendation and with none of the Stark parties objecting, this Court rescinded the June 2018 warrant and instead ordered the Commissioner to conduct a public auction of the property.

On February 14, 2020, the Commissioner convened the auction. He held it at 15 Wigwam Road. Mr. Martorella, a resident of Atlanta, Georgia, personally attended the auction and made the winning bid, $1,827,000. In keeping with the auction's rules, Martorella signed a purchase and sale agreement (the "Agreement") with Commissioner Rapp that same day. The property's auctioneer witnessed the Agreement.

The Agreement is a standard-form real-estate contract. Immediately above the lines on the Agreement that call for the parties' signatures, the Agreement includes this (capitalization in original):

NOTICE: This is a legal document that creates binding obligations. If not understood, consult an attorney.

At the time of the auction, Mr. Martorella wasn't a stranger to real-estate transactions. For at least eight years, he has been a real-estate investor. He is a partner, along with Matthew Samuelson, Sr., in several partnerships that hold "significant real estate interests . . . ." (Samuelson Affidavit, ¶ 2.) Martorella nevertheless did not hire an attorney to assist him at the auction of 15 Wigwam Road, and he didn't have an attorney review the Agreement before Martorella signed it.

The Agreement contains several other terms that bear on the current controversy. The Agreement's ¶ 5 states that the purchase price for 15 Wigwam Road (or as the Agreement calls it, the "Premises") is $1,827,000. Paragraph 5 recites that Mr. Martorella paid a $50,000 initial deposit at the time he signed the Agreement. Paragraph 5 also states that Martorella promised to pay an additional $132,700 deposit by February 18, 2020, and that the balance of the purchase price ($1,644,300) would be paid "at the time of delivery of the Deed . . . ."

Other parts of the Agreement describe the "time for delivery of the Deed." Paragraph 7 states that delivery would occur "on or before 1:00 pm ET Monday, March 16, 2020 . . . ., unless otherwise agreed upon in writing by the Parties hereto. The Parties hereto agree that time is of the essence of this Agreement." [Note 1] Paragraph 9 gives the Commissioner the right to extend the delivery date unilaterally, if needed "to remove any defects in title, or to deliver possession . . . , or to make the . . . Premises conform to the provisions [of the Agreement]." The Agreement doesn't set forth any unilateral rights held by Mr. Martorella that would allow him to extend the time for performance. Moreover, ¶ 20 of the Agreement states that Martorella

acknowledges that this Agreement contains no contingencies affecting [his] obligation to perform. If the sale as contemplated herein is not consummated for any reason, except [the Commissioner's] inability to deliver marketable or insurable title (subject only to the matters set forth in paragraph 4), then the deposit paid by [Martorella] upon the execution of this Agreement shall inure to and become the property of the [Commissioner], and this Agreement shall be and become null and void and of no further force or effect.

As to Martorella's deposits, ¶ 19 of the Agreement provides:

If [Martorella] shall fail to fulfill [his] agreements herein and hereunder then this Agreement shall be and become null and void and of no further force and effect and any and all deposits made by [him] hereunder shall be retained by the [Commissioner] as liquidated damages If [Martorella] should fail to fulfill [his] agreements herein and hereunder then [the Commissioner] shall be free to sell the Premises to whomever he so chooses.

Paragraph 22 of the Agreement concludes: "This instrument . . . is to be construed as a Massachusetts contract signed under seal and sets forth the entire contract between the Parties . . . and may be canceled, modified or amended only by a written instrument executed by both [of the Parties]."

Missing from the Agreement is any "financing contingency" clause. The Appeals Court in Tremouliaris v. Pina, 23 Mass. App. Ct. 722 , 726-727 (1987) (citations and footnotes omitted), describes the purpose and function of those clauses:

Such a clause in a real estate purchase and sale agreement is usually included at the request, and for the benefit, of the buyer. By conditioning the agreement on the buyer's ability to obtain financing in a stated amount and on stated terms, such a provision enables the buyer to escape liability and to assure the return of his deposit should he be unable to obtain financing. . . .

If he gives timely notice [of the lack of financing], the agreement becomes null and void, and he is entitled to the return of his deposit. If he does not [timely] communicate his intention to terminate the agreement and does not request an extension, he runs the risk of losing his deposit and being compelled to perform.

A treatise on Massachusetts law provides this advice: "If the buyer [of real estate] anticipates difficulty in the placing of a mortgage to finance the sale, the purchase and sale agreement should contain a provision whereby the purchaser may be relieved of his obligation if financing, according to his terms, cannot be obtained." Francis T. Talty, et al., 5 M.P.S. Methods of Practice, §3.3 (4th ed. 2020).

A financing-contingency clause, had the Commissioner agreed to one, would have been useful to Mr. Martorella. That's because, as of the time of the auction of 15 Wigwam Road, Martorella didn't have $1,827,000 to spend on the property. He had talked to his business partner, Mr. Samuelson, before the auction about helping with financing a purchase of the property, and Samuelson had agreed to lend a hand. That assistance included applying to Citizens Bank, N.A. with Laura Martorella for a home mortgage.

The record doesn't disclose why Samuelson made the application only with Laura Martorella, as opposed to both Martorellas. But more importantly, the record contains no evidence that anyone told the Commissioner, before or at the time of signing the Agreement, anything concerning Christopher Martorella's sources (or potential sources) of financing. From all that the Commissioner knew on February 14, 2020, by having signed the Agreement, and by having expressly disclaimed in the Agreement anything that would make Mr. Martorella's performance contingent, Martorella had the ability to perform as promised. In fact, two days after he signed the Agreement and put down a $50,000 deposit, Martorella sent the Commissioner the rest of the deposit, $132,700. The Agreement provided that Martorella would get his $182,700 in deposits back only if the Commissioner failed at the closing to deliver a deed to 15 Wigwam Road.

According to the Verified Complaint, "shortly after entering the [Agreement], Christopher Martorella experienced difficulty obtaining financing for the closing because of the effect of the coronavirus pandemic on the economic markets." On March 4, 2020, Martorella told the Commissioner "that due to the current turbulence in the financial markets caused by the spreading coronavirus pandemic and difficulties completing the appraisal [of the Premises] his financing was experiencing setbacks and he therefore requested a continuance of the closing date." (Verified Complaint, ¶ 13.) The Commissioner agreed to a continuance. The parties memorialized that agreement in a First Addendum to the Agreement. The addendum contained only these terms:

1. The [Parties] agree that Paragraph 7[] of the Agreement shall be amended to change the closing date only from . . . Monday, March 16, 2020 . . . to Monday, March 23, 2020 . . . at the Law Offices of Stuart W. Rapp; and

2. Time continues to be of the essence of this now Amended Agreement and as except for [sic] the modification of the Agreement as set forth herewith above [sic] all other terms and conditions of the said Purchase & Sale Agreement dated February 14, 2020, remain in full force and effect.

On March 10, 2020, the Governor of the Commonwealth declared a state of emergency to facilitate the Commonwealth's response to the COVID-19 pandemic. Three days later, the President of the United States declared a national emergency on account of the pandemic, retroactive to March 1, 2020. The effects of the pandemic were being felt throughout the global economy. See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431 , 433-434 & n.4 (2020) (describing impacts). Citizens Bank was nevertheless able to notify Mr. Samuelson and Laura Martorella on March 13, 2020 that they had qualified for a mortgage for 15 Wigwam Road. One week later, the Commissioner and Christopher Martorella signed a Second Addendum to the Agreement (the "Second Addendum"). The Second Addendum contained only these terms:

1. The [Parties] agree that Paragraph 7[] of the Agreement shall be amended to change the closing date only from . . . Monday, March 23, 2020 . . . to Monday, April 6, 2020 . . . at the Law Offices of Stuart W. Rapp; and

2. Time continues to be of the essence of this now Amended Agreement and as except for [sic] the modification of the Agreement as set forth herewith above [sic] all other terms and conditions of the said Purchase & Sale Agreement dated February 14, 2020, remain in full force and effect.

On March 26, 2020, Laura Martorella became seriously ill. On March 29, 2020, she was diagnosed with COVID-19-related symptoms and pneumonia. She was released to her home and instructed to self-quarantine. Overnight her condition deteriorated, and on March 30, 2020, Christopher Martorella took her to an Atlanta hospital. Laura was admitted and placed in the hospital's COVID-19 wing.

That same day, the Commissioner contacted Laura Martorella's counsel in Stark, Stephen S. Brown, who now is Christopher Martorella's counsel in this action. The Commissioner told attorney Brown that the Commissioner was ready, willing and able to close on the sale of 15 Wigwam Road on the date and the time provided in the Second Addendum, April 6, 2020 at 1:00 PM. The Commissioner offered to conduct the closing via wire transfers and package-delivery services, instead of a closing at the Commissioner's office (as the Second Addendum also provided).

Christopher Martorella responded to the Commissioner's notice with a request to postpone the closing to May 5, 2020. On March 31, 2020, the Commissioner refused the request. Later that day, attorney Brown filed in Stark, on Laura Martorella's behalf, a motion to continue the closing to May 5, 2020. After an April 1, 2020 telephonic hearing, this Court denied the motion on the grounds that Laura's motion sought to benefit her husband, and he was not a party in Stark.

On April 3, 2020, Mr. Martorella signed a document titled, "Assignment of Purchase and Sale Agreement" (the "Assignment"). The document purported to assign to Mr. Samuelson Martorella's right, title and interest in the Agreement. Meanwhile, attorney Brown spoke again with the Commissioner about postponing the closing. As part of those discussions, attorney Brown sent the Commissioner a copy of Samuelson and Ms. Martorella's March 2020 mortgage prequalification notice, along with a copy of the Assignment. In response, the Commissioner offered to postpone the closing to May 5, 2020, provided that Mr. Martorella increased his deposit and agreed to make it non-refundable. Martorella declined the offer.

While Christopher Martorella and the Commissioner were negotiating over a possible postponement, Laura Martorella was diagnosed with Guillain-Barré Syndrome. That condition had left her temporarily paralyzed. She was intubated and placed on a ventilator. On April 4, 2020 (a Saturday), the day after Laura was intubated, Christopher (through attorney Brown) sent this Court and the Commissioner, electronically, the Verified Complaint in this action. Mr. Martorella also moved for an order restraining the Commissioner from selling 15 Wigwam Road in the event that Martorella didn't appear for the April 6, 2020 closing.

Mr. Martorella stated in his Verified Complaint (signed April 4, 2020) that "[t]he COVID-19/coronavirus crisis has made it impossible for me to continue with the closing on April 6, 2020, because of the catastrophic effect it has had on my family, and the financial effect it has had on the financing process for the closing." (He states in his later-filed Amended Verified Complaint that he was "required to self-quarantine" for an unspecified period of time because of his exposure to his wife.) Martorella submitted with his Verified Complaint an affidavit, also signed on April 4, 2020. While he expresses in that affidavit his expectation that he could "close on the purchase as soon as real estate and mortgage markets are functioning normally," he also says that, "[f]or the forgoing [sic] reasons I request a ninety-day continuance of the closing scheduled for April 6, 2020, to allow financial conditions to return to some state of normalcy so that Laura, Matthew Samuelson, Sr. and I can close on the P&S as initially planned before the unforeseen coronavirus emergency."

On April 6, 2020, this Court denied without prejudice Mr. Martorella's motion for a temporary restraining order. During telephonic arguments over the motion, the Commissioner alerted the Court to the Assignment. The Commissioner questioned whether Martorella had standing to assert any rights arising under the Agreement, having apparently assigned those rights to Mr. Samuelson.

On April 17, 2020, Martorella filed his Amended Verified Complaint. In ¶ 34 of that complaint, Martorella says this about the Assignment:

In an attempt to secure agreement outside of court on a continuance date for the [closing], Christopher Martorella, through counsel provided counsel for . . . Stark and . . . Donaldson . . . with a mortgage preapproval letter from Citizens Bank as evidence that the financing was in process. Counsel for Stark and Donaldson objected to the preapproval letter on the grounds that it was in the name of Laura Martorella, and a certain Matthew Samuelson, Sr. For the purpose of assuaging the concerns of Stark and Donaldson, and to prove that the preapproval letter did relate to the [Agreement], Christopher Martorella executed [the Assignment] and provided it to counsel for . . . Stark and Donaldson. That assignment was never delivered to Matthew Samuelson, Sr., was created [sic] only for settlement discussion purposes, and is neither enforceable nor valid nor effective.

To underscore his point, Martorella insisted that Samuelson sign a document in May 2020 that assigned back to Martorella all of Samuelson's alleged rights under the Agreement.

Those are the operative facts. The Court now turns to the Defendants' arguments for why this Court should dismiss Mr. Martorella's claims. Defendants first argue that this Court lacks subject-matter jurisdiction over Martorella's Amended Verified Complaint. They direct the Court to Cooper v. Beaudet, 27 LCR 160 (2019) (Speicher, J.). There the court dismissed, for lack of subject-matter jurisdiction, the parties' claims and counterclaims regarding alleged breaches of a real-estate purchase and sale agreement. The Cooper parties asserted (as Martorella does here) that the Land Court had jurisdiction over their claims pursuant to M.G.L. c. 185, §1(k). That statute gives this Court jurisdiction over "[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts."

The Cooper court disagreed with the Cooper parties' interpretation of §1(k):

Nothing in the complaint or counterclaims properly raises any question of title to real estate, nor does anything in the complaint . . . or the counterclaim properly seek any judgment . . . that would alter title, or make a declaration as to title. Rather, the central issue is a contractual dispute over damages for breach of a contract that happened to be for the sale of real estate. This issue, concerning the parties' duties under the contract and whether they are subject to damages for breach of those duties, does not "implicate any special expertise of the Land Court."

Cooper, 27 LCR at 160, quoting Steele v. Kelley, 46 Mass. App. Ct. 712 , 725 (1999). Cooper rested its conclusion, however, on concessions by both parties that neither of them sought specific performance of their purchase and sale agreement: each sought damages only. See Cooper, 27 LCR at 160.

The key thing missing from Cooper --a request for a remedy affecting someone's right, title and interest in land --is present in this case. While the Amended Verified Complaint contains two prayers for declarations that pertain solely to the enforceability of the Agreement, in the alternative Mr. Martorella asks the Court to issue two injunctions. One would order the Commissioner "to continue the closing date to July 6, 2020." The other would direct the Commissioner to "make a good faith effort to accommodate [Martorella] with regard to the unforeseen circumstances regarding the COVID-19 pandemic and [his] procurement of financing for the purchase of the Property." Both orders would protect Martorella's alleged right, title and interest in 15 Wigwam Road as a purchaser of the property. That relief is akin to an order of specific performance of a real-estate contract, something that c. 185, §1(k) expressly places within the Land Court's jurisdiction. This Court thus has subject-matter jurisdiction under §1(k) to hear Martorella's equitable claims. And since this Court has subject-matter jurisdiction over the core of his complaint, this Court also may adjudicate the parties' ancillary contract claims. See Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 301-302 (2008).

Defendants raise a second jurisdictional issue: they claim that Mr. Martorella lacks standing to assert any rights under the Agreement, on account of the Assignment. In Defendants' eyes, only Mr. Samuelson may enforce the Agreement, including its alleged implied terms pertaining to unforeseen circumstances. While it's a bedrock principle of Massachusetts law that only the parties to a contract and its intended beneficiaries may enforce that contract, see Harvard Law Sch. Coalition for Civ. Rights v. President and Fellows of Harvard College, 413 Mass. 66 , 71 (1992), Martorella has presented facts that show that he's still the "buyer" under the Agreement. Sure, the Assignment creates questions as to who is the real buyer, but Ferguson requires this Court, in considering Defendants' special motion to dismiss, to accept Martorella and Mr. Samuelson's sworn accounts of the Assignment-that-allegedly-never-was, at least for now. See Ferguson, 96 Mass. App. Ct. at 389-390. [Note 2]

While Defendants aren't successful in obtaining dismissal for jurisdictional reasons, or on account of Mr. Martorella's lack of standing, they prevail on the question of whether his amended verified complaint states a claim under Massachusetts law for the relief Martorella seeks.

The Massachusetts doctrine of contractual impossibility applies

"where from the nature of the contract it appears that the parties must from the beginning have contemplated the continued existence of some particular specified thing as the foundation of what was to be done, then, in the absence of any warranty that the thing shall exist . . . the parties shall be excused . . . [when] performance becomes impossible from the accidental perishing of the things without the fault of either party."

Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371 , 373 (1991), quoting Boston Plate & Window Glass Co. v. John Bowen Co., 335 Mass. 697 , 700 (1957) (brackets in Chase Precast). See also Wells v. Calnan, 107 Mass. 514 , 516-517 (1871) (same effect); Restatement (Second) of Contracts, §261 (1981) ("Restatement") ("Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render contrary."). [Note 3] that performance is discharged, unless the language or the circumstances indicate the contrary.”).3 The doctrine's focus on the parties' expectations at the time of contracting

is essentially aimed at the distribution of certain kinds of risks in the contractual relationship. By directing the inquiry to the time when the contract was first made, we really seek to determine whether the risk of intervening circumstance was one which the parties may be taken to have assigned between themselves. . . . It is implicit in the doctrine of impossibility . . . that certain risks are so unusual and have such severe consequences that they must have been beyond the scope of the assignment of risks inherent in the contract, that is, beyond the agreement made by the parties. To require performance in that case would be to grant the promisee an advantage for which he could not be said to have bargained in making the contract. The question is, given the commercial circumstances in which the parties dealt: Was the contingency which developed one which the parties could reasonably be thought to have foreseen as a real possibility which could affect performance? Was it one of that variety of risks which the parties were tacitly assigning to the promisor by their failure to provide for it explicitly? If it was, performance will be required. If it could not be so considered, performance is excused.

Mishara Constr. Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122 , 128-129 (1974).

Mr. Martorella frames the issue as whether he and the Commissioner contemplated at the time of the auction the horrifying effects of COVID-19 or, more specifically, how complications from the virus would prevent Ms. Martorella, an essential party to her husband's financing, from doing what she needed to do in order for him to deliver $1,644,300 at the scheduled closing. There are two troubles with this argument. The first is this: under Massachusetts law, "[o]nce one party has made itself responsible for the disposition of the subject matter of a contract, it cannot claim later that the occurrence in question was not in the contemplation of the parties at the time of contract." Winchester Gables, Inc. v. Host Marriott Corp., 70 Mass. App. Ct. 585 , 596 (2007). It's undisputed that the Agreement addresses the subject of financing, albeit in the simplest of ways: at the time of the delivery of a deed to 15 Wigwam Road, Martorella was to pay $1,644,300. And as to that promise, Martorella acknowledged in ¶ 20 of the Agreement --a contract that (along with the two later addendums) set forth fully the parties' promises, see id. at ¶ 22 --that the Agreement contained "no contingencies affecting [his] obligation to perform." Through his promises and acknowledgements, Martorella knowingly assumed the risk of delivering $1,644,300 at closing.

The second trouble with Mr. Martorella's impossibility argument, one that distinguishes this case from the circumstances covered in Restatement §262 ("Death or Incapacity of Person Necessary for Performance"), is that the person who suffered (and perhaps still suffers) incapacity in this case, Ms. Martorella, wasn't a party to the Agreement. Under §262 of the Restatement, a party's performance under a contract may be excused on account of non-contracting person's death or incapacity only "[i]f, as both parties understand, the existence of a particular person is necessary for the performance of a duty." Restatement §262, comment a (emphasis added). Mr. Martorella has presented no evidence that he disclosed to the Commissioner, before or at the time of execution of the Agreement, that a healthy, financially capable Ms. Martorella was essential for Mr. Martorella to deliver $1,644,300 at closing. To the contrary: Martorella acknowledged in the Agreement that there were no contingencies to his performance.

The result here may feel harsh, but it's consistent with an even more discomfiting, not-so-ancient Massachusetts precedent, Watters v. Thompson, 354 Mass. 642 (1968). There John and Audrey Vranizan executed a purchase and sale agreement to buy a parcel in Weston, Massachusetts. They provided a $5,000 deposit. Watters doesn't disclose the total purchase price for the property, but it does summarize, based on Audrey's affidavit, what happened next. The affidavit

enumerates that John . . . died after [executing the agreement] and before the time set for passing papers, leaving [Audrey] a widow with three minor children; that it became financially impossible for her to complete the purchase; that the [plaintiff sellers], knowing of her financial condition, agreed to return the $5,000 deposit when and if they resold the property to some other party; and that . . . the plaintiffs did resell the property but did not return the deposit.

Id. at 645-646. Watters then observes, cryptically but with citation to several authorities, that the facts in Audrey's affidavit "are not facts which constitute a valid defence [sic] of impossibility of performance." Id. at 646. Watters goes on to hold that, by the terms of the Vranizans' purchase and sale agreement, the sellers weren't obligated to return Audrey's deposit. The court also held that the sellers' later alleged promises to return the deposit lacked consideration, and thus were unenforceable. Id.

Perhaps recognizing the sometimes harsh consequences of Massachusetts contract law, the Massachusetts legislature has passed at least one statute during the COVID-19 emergency that arguably has the effect of modifying certain private agreements. See Acts of 2020, c. 65 (limiting rights of lessors, creditors and mortgagees during the state of emergency). The legislature hasn't extended similar protections to those who were obliged during the pandemic to buy real estate, but were unable to do so. As the Agreement as amended called for Mr. Martorella to deliver $1,644,300 at an April 6, 2020 closing, and contained no financing contingencies, his failure to make that delivery excuses the Commissioner from further performance under the Agreement, regardless of Laura Martorella's illness. Mr. Martorella's breach also entitles the Commissioner to retain Martorella's deposit.

For these reasons, pursuant to c. 184, §15(c), this Court DISMISSES Mr. Martorella's Amended Verified Complaint. The Court ORDERS Commissioner Rapp, Mr. Stark and Ms. Donaldson to submit by June 15, 2020 any motion they may have for an award of attorney's fees and costs. See id. (providing an award of fees and costs in connection with a special motion to dismiss). As Martorella's claims affect right, title and interest in land, this Court will ENDORSE his proposed memorandum of lis pendens, but the Court will issue a further order dissolving the memorandum once the time for appealing this dismissal has expired. See DeCicco, 484 Mass. at 1037 & n.2.

SO ORDERED.