Kelly v. Marx

428 Mass. 877
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 10, 1999
StatusPublished
Cited by52 cases

This text of 428 Mass. 877 (Kelly v. Marx) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. Marx, 428 Mass. 877 (Mass. 1999).

Opinion

Ireland, J.

John E. and Pamela B. Kelly (plaintiffs) commenced this action in the Superior Court in November, 1994, seeking to recover funds that they had paid to Steven A. and Merrill S. Marx (defendants) as a deposit for the purchase of the defendants’ property. Both parties filed cross motions for summary judgment. The Superior Court judge granted the motion of the defendants after concluding they were entitled to the deposit because the liquidated damages clause in their agreement was enforceable.

[878]*878The Appeals Court, in a two-to-one decision, reversed the judgment and ordered the deposit returned to the plaintiffs. Kelly v. Marx, 44 Mass. App. Ct. 825 (1998). Under the “second look” doctrine, contained in Shapiro v. Grinspoon, 27 Mass. App. Ct. 596, 604 (1989), the court reached this conclusion by examining both the circumstances at the time of contract formation and the actual damages suffered by the parties when the breach occurred. See Kelly v. Marx, supra at 826. The court concluded that the defendants were not entitled to keep the deposit because they suffered no actual damages, and, therefore, liquidated damages would serve as a penalty and not as compensation for a loss. See id. at 831. We granted the defendants’ application for further appellate review, and now affirm the Superior Court judgment.

1. Facts. On March 18, 1994, the plaintiffs signed an offer to purchase residential real estate in Worcester for $355,000 from the defendants. The defendants accepted the offer, and the plaintiffs gave $1,000 to the defendants as a partial deposit. By early May, 1994, the parties executed a purchase and sale agreement (agreement). Clause eighteen of the agreement read: “If the BUYER shall fail to fulfill the BUYER’S agreements herein, all deposits made hereunder by the BUYER shall be retained by the SELLER as liquidated damages.” The plaintiffs provided a deposit of $16,750 to the defendants once the agreement was signed, bringing their total deposit to $17,750, five per cent of the purchase price. The offer set September 1, 1994, as the closing date.

The plaintiffs never purchased the property. On August 9, 1994, they notified the defendants in writing to put the house back on the market because they were unable to sell their current home. On August 24, 1994, the defendants accepted the offer of other prospective buyers to purchase, and then signed a purchase and sale agreement with them on September 8, 1994. The new buyers purchased the property for $360,000 on September 20, 1994.

2. Discussion. We affirm the decision of the Superior Court because we reject the “second look” approach, and conclude that a liquidated damages clause in a purchase and sale agreement will be enforced where, at the time the agreement was made, potential damages were difficult to determine and the clause was a reasonable forecast of damages expected to occur in the event of a breach.

[879]*879The Appeals Court, in deciding whether to allow liquidated damages, relied on the three-step analysis described in the Shapiro case.3 First, the Appeals Court noted that potential damages were “within the ordinary range for a real estate purchase and sale agreement,” and “difficult to predict at the time of contracting.” Kelly v. Marx, supra at 829. Next, however, the court examined the agreement in light of the actual damages at the time of the breach, and concluded that liquidated damages were inappropriate because they would punish the plaintiffs, not compensate the defendants, who suffered no loss from the plaintiffs’ breach.

Liquidated damages clauses which provide for the seller of real estate to retain the buyer’s deposit are recognized in Massachusetts, see Lynch v. Andrew, 20 Mass. App. Ct. 623, 627 (1985), and, as both parties concede here and the Appeals Court concluded, they are a common real estate practice. See Kelly v. Marx, supra at 829-830. The question before us is whether enforceability of a liquidated damages clause is to be tested by analyzing the circumstances at contract formation, the prospective or “single look” approach, or when the breach occurs, the retrospective or “second look” approach.

This question has created confusion in our courts, and originates from ambiguous language in the leading, most recent case of this court on liquidated damages in the context of the purchase and sale of read property, A-Z Servicenter, Inc. v. Segall, 334 Mass. 672, 675 (1956). Many decisions, following A-Z Servicenter, have concluded that liquidated damages should be measured, first, by. assessing the reasonableness of the liquidated damages in light of the parties’ ability to anticipate damages at contract formation, and, second, against the actual damages resulting from the breach. This was evident, most notably, in [880]*880the Shapiro case, on which the Appeals Court relied and which contained a three-step analysis based on the Shapiro court’s interpretation of the A-Z Servicenter opinion. See Shapiro v. Grinspoon, supra at 605. See also Colonial at Lynnfield, Inc. v. Sloan, 870 F.2d 761, 765 (1st Cir. 1989) (applying A-Z Servicenter test); Kelly v. Marx, supra at 827-828 (same).4

We agree with the dissenting Justice, id. at 833 (Spina, J., dissenting), and the decisions of many other States,5 that a judge, in determining the enforceability of a liquidated damages clause, should examine only the circumstances at contract formation. Our position is that “[wjhere actual damages are difficult to ascertain and where the sum agreed upon by the parties at the time of the execution of the contract represents a reasonable estimate of the actual damages, such a contract will be enforced.” A-Z Servicenter, Inc. v. Segall, supra at 675. Liquidated damages will not be enforced if the sum is “grossly disproportionate to a reasonable estimate of actual damages” made at the time of contract formation. Lynch v. Andrew, supra at 628.

This approach most accurately matches the expectations of the parties, who negotiated a liquidated damage amount that was fair to each side based on their unique concerns and circumstances surrounding the agreement, and their individual estimate of damages in event of a breach. We agree with the reasoning of the dissenting Justice, who pointed out that the “ ‘second look’ reveals nothing that the parties had not [881]*881contemplated” when they entered their contract. Kelly v. Marx, supra at 833 (Spina, J., dissenting).

In addition to meeting the parties’ expectations, the “single look” approach helps resolve disputes efficiently by making it unnecessary to wait until actual damages from a breach are proved. By reducing challenges to a liquidated damages clause, the “single look” approach eliminates uncertainty and tends to prevent costly future litigation. The “second look,” by contrast, undermines the “peace of mind and certainty of result,” id. at 833, the parties sought when they contracted for liquidated damages.

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Bluebook (online)
428 Mass. 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-marx-mass-1999.