NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-17
KEVIN CONCANNON & another1
vs.
DOROTHY SMITH2 & another.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs brought this action seeking equitable relief
and monetary damages arising out of the breach by Dorothy and
Edward Smith4 of a purchase and sales agreement for a property in
Hull (agreement). Following a jury-waived trial, a Superior
Court judge entered a judgment awarding the plaintiffs specific
performance of the agreement, and the defendants appealed. We
affirm.
1 Laura Sorgi.
2Individually and as personal representative of the estate of Edward Smith.
3 Robert Machinski.
4For the sake of clarity, we refer to the Smiths by their first names where necessary. Edward died during the pendency of this action. Background. "We recite the facts that the judge could have
found, . . . reserving some for later discussion." Spinosa v.
Tufts, 98 Mass. App. Ct. 1, 3 (2020). Dorothy and Edward
married in 1980. Before they were married, Dorothy had
purchased a home at 51 Randolph Street in Abington (Randolph
Street property) and lived there with her four children from a
prior marriage, one of whom is defendant Robert Machinski. In
1984, the Smiths purchased a home together at 23 Meade Avenue in
Hull (Meade Avenue property). The Smiths kept the Randolph
Street property until the late 2010s, but began using the Meade
Avenue property as their primary residence shortly after they
purchased it. Machinski lived with the Smiths at the Meade
Avenue property from 1984 (the year after he graduated from high
school) until 1992, when he moved out of state.
While living at the Meade Avenue property, the Smiths
became friendly with their neighbor, Eugene Allen, and Allen's
wife, Frances. The Allens lived next door to the Smiths in a
single-family home at 52 Valley Beach Avenue (the property).
After Frances passed away in 1997, the Smiths provided company
and assistance to Allen, who was then in his nineties and did
not have any family close by. Among other things, the Smiths
helped Allen write checks to pay his bills, made him meals, took
him to the grocery store and medical appointments, and cared for
him when he was ill.
2 In July 1999, Allen conveyed the three parcels that
comprise the property to Machinski via two deeds in
consideration of $1. Although Machinski was by then living in
California, the deeds identified the Smiths' Meade Avenue
property as Machinski's address. One deed, in which Allen
reserved a life estate, was for the parcel known as the Lois E.
James parcel (James parcel), which is the portion of the
property that is next door to the Meade Avenue property and
contains a single-family home. The second deed was for the
parcels known as parcel P and parcel G. Parcel P is a small
triangular parcel that abuts Valley Beach Road and is contiguous
with the James parcel. Parcel G is a waterfront parcel
consisting entirely of rocks that slope down into the ocean and
located directly across the street from the other two parcels.
At the end of his life, Allen was in a nursing home, where
the Smiths visited him regularly. When Allen passed away in
November 2002, Edward took care of the funeral arrangements.
Allen's death certificate identified Edward as Allen's
"guardian."
Following Allen's death, Machinski deeded parcels G and P
to the Smiths. Though the James parcel was not deeded to the
Smiths, they began to use the single-family home on the James
parcel as a rental around the same time. The Smiths found and
selected tenants, collected all rental income, performed
3 necessary repairs and maintenance, and paid taxes on the
property. In 2012, the Smiths took out a $380,620 mortgage
secured by the property. In the mortgage application, Edward
stated that he had acquired the property in 1990 for $300,000,
and that he was seeking to refinance an existing $377,208.81
lien. The Smiths never discussed the way they managed the
property with Machinski or told him about their decision to
mortgage it.
In April 2020, the Smiths hired a real estate broker to
market the property, representing that they owned and had
authority to sell all three parcels. Together with their
broker, the Smiths, who had enjoyed long careers as real estate
appraisers,5 agreed to list the property for $650,000. On June
26, 2020, the Smiths and the plaintiffs executed the purchase
and sales agreement, agreeing to a sales price of $620,000 and a
closing date of July 24, 2020. The agreement described the
property as "the land and building(s) thereon known and numbered
as 52 Valley Beach Avenue, Hull, MA," and required the Smiths to
"use reasonable efforts (not to exceed $2,500 exclusive of
voluntary liens and mortgages) to remove any defect in title."
Edward worked in the business of real estate investments 5
and appraisals for over twenty-five years, buying and selling real estate in Alabama, Florida, New Hampshire, and Massachusetts before retiring in the early to mid-2010s. Dorothy had also been a real estate appraiser at one time but retired before Edward.
4 In an "escape clause," the agreement further provided that if
the Smiths failed to timely
"remove any defects in title, deliver possession, or make the premises conform, as the case may be, all as herein agreed, . . . then, any payments made under [the] agreement shall be forthwith refunded and all other obligations of all parties hereto shall cease and [the] agreement shall be void without recourse to the parties hereto."
During the title review process, it came to light that
title to the James parcel was in Machinski's name. Edward
explained to his broker that he and Dorothy had "inherited" the
property from Allen but asked Allen to put the deeds in
Machinski's name for "tax purposes." Edward similarly told
plaintiff Kevin Concannon that he "ha[d] all the paperwork
saying [he's] the owner" of the property and was in the process
of trying to find it. In order to resolve the title issue, the
closing date was repeatedly postponed, eventually until
September 23, 2020.
Machinski learned of the title issue in late August 2020,
and was purportedly "shocked" when he found out that the Smiths
were "going to let [the property] go" for $620,000. Machinski
informed the plaintiffs' attorney that he would only convey the
James parcel if the sales price of the property was increased to
$1.1 million. Shortly thereafter, Machinski moved from
California into the house on the James parcel and began making
improvements to it.
5 On September 23, 2020, the plaintiffs appeared at the
closing, ready to pay the agreed-on purchase price. The Smiths
did not attend.
The plaintiffs subsequently filed this action against the
defendants, alleging that Machinski was a straw and agent of the
Smiths, and therefore, the Smiths were required to direct
Machinski to convey the James parcel back to them and he was
required to do so, so that the sale could be completed. The
plaintiffs sought specific performance and asserted claims for
breach of the implied covenant of good faith and fair dealing,
fraud, constructive trust, resulting trust, intentional
misrepresentation, negligent misrepresentation, and breach of
contract.
In January 2023, a jury-waived trial was held pursuant to
Rule 20 of the Rules of the Superior Court (2018) (rule 20).
Over two days, the judge heard testimony from Dorothy,
Machinski, Concannon, the Smiths' broker, and the Smiths' former
real estate attorney. Although Edward had passed away in
December 2021, his deposition transcript was admitted as an
exhibit.6
Following the presentation of evidence, the judge answered
special questions and entered judgment in the plaintiffs' favor
6 Dorothy's and Machinski's deposition transcripts were also admitted in evidence.
6 on their claims for specific performance, breach of the implied
covenant of good faith and fair dealing, constructive trust, and
breach of contract. The plaintiffs' remaining claims were
dismissed. The judge found, among other things, that Allen had
conveyed the James parcel to Machinski as an agent for the
Smiths and that it was necessary to impose a constructive trust
to avoid the unjust enrichment of Machinski. The judge ordered
Machinski to convey the disputed parcel to Dorothy and Dorothy
to convey it to the plaintiffs.
Discussion. 1. Standard of review. "The standard of
review relating to a jury-waived proceeding is well established
-- '[t]he findings of fact of the judge are accepted unless they
are clearly erroneous' and '[w]e review the judge's legal
conclusions de novo.'" Cavadi v. DeYeso, 458 Mass. 615, 624
(2011), quoting T.W. Nickerson, Inc. v. Fleet Nat'l Bank, 456
Mass. 562, 569 (2010). Where, as here, the parties not only
waived their right to a jury trial but, pursuant to rule 20,
"any arguments that required or depended on detailed factual
findings . . ., appellate review is conducted according to the
same standard as that applied to a judgment entered following a
jury verdict." K & K Dev., Inc. v. Andrews, 103 Mass. App. Ct.
338, 344 (2023). "We therefore review to determine whether
anywhere in the evidence, from whatever source derived, any
combination of circumstances could be found from which a
7 reasonable inference could be drawn in favor of the [prevailing
party]" (quotations and citation omitted). Id.
2. Agency. The defendants challenge the judge's
conclusion that Machinski held title to the James parcel as the
Smiths' agent, asserting, among other things, that the
plaintiffs failed to proffer any evidence of agency. This
argument is unpersuasive. As will be explained below, the
circumstances surrounding the July 1999 conveyance of the
property, and the defendants' conduct over the years that
followed, strongly support the judge's conclusion that Machinski
held title for the Smiths' benefit and subject to their control.
See Brown-Forman Corp. v. Alcoholic Beverages Control Comm'n, 65
Mass. App. Ct. 498, 506 (2006) ("An agency relationship is
created when there is mutual consent, express or implied, that
the agent is to act on behalf and for the benefit of the
principal, and subject to the principal's control" [citation
omitted]).
a. Circumstances of the conveyance. Machinski's testimony
regarding the circumstances of the July 1999 conveyance was
vague and contradictory. During his deposition, when asked
about the conversations he had with Allen about deeding him the
property, Machinski responded that he did not recall much other
than that Allen's "health was ailing, and he wanted to deed the
property to me." Later at trial, he claimed Allen deeded him
8 the property out of gratitude, asking him to "look out for the
property and use it with the family." However, at the time of
the conveyance, Machinski had been living out of state for
approximately seven years, and by his own admission, saw Allen
infrequently.7 The Smiths, in contrast, continued to live next
door to Allen and were actively involved in his care to the
point that Allen's death certificate listed Edward as his
"guardian." Notably, the 1999 deeds even identify the grantee's
address as the Smiths' Meade Avenue property rather than
Machinski's California residence.
b. Financial considerations. At the time of the
conveyance, Dorothy was in the middle of Chapter 13 bankruptcy
proceedings, providing an incentive to avoid taking title in her
own name so the property would not become part of the bankruptcy
estate. See Harris v. Viegelahn, 575 U.S. 510, 514 (2015)
(under Chapter 13, "[the] estate from which creditors may be
paid includes both the debtor's property at the time of [the
debtor's] bankruptcy petition, and any wages and property
acquired after filing"). See also 11 U.S.C. § 1306(a)(1). The
broker testified that Edward too wanted to avoid putting the
7 Despite his deposition testimony that he saw Allen infrequently after moving out of state, Machinski submitted an affidavit in connection with an earlier motion to dismiss asserting that he was Allen's "surrogate caretaker" after the death of Allen's wife in 1997.
9 property in his name, for unspecified "tax purposes." These
considerations align with the Smiths' prior conduct with respect
to other properties.
In the early 1990s, before filing multiple bankruptcy
petitions, the Smiths transferred the Meade Avenue and Randolph
Street properties to realty trusts in which Machinski and
Dorothy's other children served as trustees.8 Although the legal
ownership of those properties changed, the Smiths continued to
use the Meade Avenue property as their home address, and the
Randolph Street property appears to have been treated as part of
their bankruptcy estates,9 indicating that the transfer of legal
title alone did not obscure the Smiths' financial interest and
control.
The Smiths' pattern of retaining control of property while
transferring legal title bolsters the inference that they used
Machinski as a nominal title holder to protect the property at a
time of increased financial vulnerability. This inference is
reinforced by the evidence that parcels P and G, along with the
8 Machinski testified that he had did not "have any recollection" of being a trustee of the realty trusts or ever having seen the deeds transferring those properties back to the Smiths.
9 Edward and Dorothy jointly filed a Chapter 7 bankruptcy petition in 1992 and filed separate Chapter 13 bankruptcy petitions in 1995 and 1997. The dockets of the Chapter 13 proceedings reflect efforts by creditors to collect on claims secured by the Randolph Street property.
10 Meade Avenue and Randolph Street properties, were all deeded
back to the Smiths for nominal consideration a little over a
year after a bankruptcy court judge granted Dorothy a discharge
in April 2002.
c. Subsequent conduct. The Smiths testified that they
thought Machinski had deeded them the entire property in 2003,
and from then until the title issue arose in 2020, they had
believed that the property was theirs. Consistent with that
belief, the Smiths managed it, paid all expenses, kept rental
proceeds, and pledged it as security for a mortgage, all without
input from Machinski. Machiniski, who resided in California
until he learned of the title issue in August 2020, testified
that if the plaintiffs had agreed to his offer to sell the
property for $1.1 million, he would have "given [his parents]
all the money." These statements and behaviors are consistent
with an agency relationship. See Bellemare v. Clermont, 69
Mass. App. Ct. 566, 571, 575 (2007) (defendant titleholder who
"never derived any benefit from the subject property, never
received any compensation or income from the property, and never
exercised any management or control of the property," was not
owner but agent "for the principals' convenience"); Restatement
(Second) of Agency § 14B comment f (1958) ("Where a person
transfers property to another, the question whether there is an
agency depends upon the amount of control agreed to be exercised
11 by the person for whose benefit the transferee is to act, or, in
doubtful situations, upon the amount of control in fact
exercised").
d. Testimony regarding parcels G and P. Machinski's
testimony about deeding parcels G and P to the Smiths further
underscores his role as an agent for the Smiths. Despite his
assertion that he deeded the Smiths these parcels to alleviate
their concerns about potential development obstructing their
view, Dorothy disclaimed such a concern, testifying that she did
not recall being worried about development, even acknowledging
at one point that parcel G was "[n]ot buildable." If the Smiths
feared development blocking their view, it is also unclear why
Machinski would have conveyed both parcels rather than just the
parcel across the street. The most plausible explanation for
the conveyance of parcels G and P is that Machinski was acting
at the direction of the Smiths when he deeded them those
parcels, consistent with an agency relationship in which he took
title to the property for the Smiths' benefit.
Lastly, it is worth noting that Machinski's failure to
speak up until August 2020, despite clear notice that the
property was being marketed for sale,10 suggests that he did not
10Although Machinski denied having noticed it, a "for sale" sign, visible from the Smiths' Meade Avenue home next door, was in front of the property during a July 2020 visit to his parents' Meade Avenue property.
12 view himself as the rightful owner until he learned the James
parcel was still in his name and realized he could leverage his
legal title to interfere with the sale and increase the purchase
price by $480,000.
Based on the foregoing evidence, the judge's finding that
Machinski held title to the James parcel as the Smiths' agent
was not clearly erroneous. See T.D. Downing Co. v. Shawmut
Corp. of Boston, 245 Mass. 106, 113 (1923) (principal-agent
relationship "may arise wholly by implication from the conduct
of the parties and the circumstances of the particular case");
Shear v. Gabovitch, 43 Mass. App. Ct. 650, 670 (1997) ("The
existence of an agency relationship is ordinarily a question of
fact, not to be reversed unless clearly erroneous").
3. Contract claims. The agreement required the Smiths to
voluntary liens and mortgages) to remove any defect in title."
The trial judge reasonably concluded that the Smiths' actions
not only failed to satisfy this obligation but breached the
implied covenant of good faith and fair dealing.
During her deposition, Dorothy testified that she had no
control over what Machinski did with the property and was
uncertain whether she could legally compel him to deed it to
her. Had she taken any steps to explore the legal options
available to her, Dorothy would have learned that an agent with
13 title to land must surrender it upon demand of the principal or
termination of the agency. Restatement (Second) of Agency
§ 422. See Restatement (Second) of Agency § 14B ("One who has
title to property which he agrees to hold for the benefit and
subject to the control of another is an agent-trustee and is
subject to the rules of agency"). See also Gagnon v. Coombs, 39
Mass. App. Ct. 144, 155 (1995) ("it is the agent's duty to obey
the will of the principal, to respond to the principal's wishes,
and not to act contrary to the principal's directions").
At trial, Dorothy testified that she and Edward had in fact
asked Machinski to convey the James parcel to them, but he
refused. However, the seriousness of any such request is
undermined by Edward's testimony that Machinski was "his own
man" and he could not make him do anything. When asked whether
he had "attempted to ask" or "make" Machinski deed the James
parcel to the Smiths, Edward responded:
"I am laughing because that is -- to me . . . that is such an absurd question. [Machinski] has been -- he thinks and probably is smarter than everybody in the room. There is no way that I was going to convince him to do what he didn't want to do and certainly I would not tell him to do that. It is not my place to tell my children what they should do."
The record thus provides an ample basis on which to conclude
that rather than making a serious effort to have Machinski
convey title, or exploring legal remedies within the $2,500
threshold set forth in the agreement (which could include, for
14 example, cooperating with the plaintiffs to bring an action
against Machinski), the Smiths simply disclaimed responsibility,
allowing Machinski to take possession and claiming that they
were mistaken about their ownership interest. In doing so, the
Smiths attempted to convert Machinski's legal title into a
beneficial interest -- encumbering the very title that they had
already agreed to convey to the plaintiffs. See J.J. Newberry
Co. v. Shannon, 268 Mass. 116, 119 (1929) (defendant "could not
without violating his contract bring into existence a right in a
third person incumbering the title which he had agreed to
convey").
The Smiths' conduct, viewed together with Machinski's
testimony that he believed the $620,000 sales price undervalued
the property by hundreds of thousands of dollars, supports an
inference that the defendants sought to take advantage of the
situation and sabotage the sale to secure a higher price, and in
turn, the judge's finding that the Smiths failed to act in good
faith and use reasonable efforts to fulfill their obligations
under the agreement. This conclusion is strengthened by
Edward's candid admission that he did not believe he owed the
plaintiffs a duty of good faith -- a striking repudiation of the
covenant of good faith and fair dealing that is implicit in
every contract under Massachusetts law. See Robert & Ardis
James Found. v. Meyers, 474 Mass. 181, 188 (2016). For these
15 reasons, the judge did not abuse his discretion in finding that
the Smiths had breached the purchase and sale agreement as well
as the implied covenant of good faith and fair dealing.
The escape clause of the agreement, stating that the
Smiths' failure to timely "remove any defects in title" would
void the parties' obligations, does not absolve the Smiths of
liability. It is well established that such escape clauses do
not allow sellers to avoid liability for failure to make
reasonable efforts to cure title defects. See Durkin v.
Ferreira, 21 Mass. App. Ct. 771, 774-776 (1986). More
particularly, where a party agrees to remove defects in title in
exchange for consideration, that party cannot later "set up
[those] defects as a ground for putting an end to the
obligations of the contract." J.J. Newberry Co., 268 Mass. at
118. See Hastings v. Gay, 55 Mass. App. Ct. 157, 162 (2002)
(escape clause "will not apply to void an agreement where the
seller's inability to convey good and clear title was the result
of his own fault or collusion").
Accordingly, under the circumstances, neither the
plaintiffs' lack of direct involvement in the agency
relationship between Machinski and the Smiths nor the fact that
Machinski was not a party to the agreement precluded the trial
judge from ordering Machinski to convey the James parcel to
Dorothy, and in turn, ordering Dorothy to convey the property to
16 the plaintiffs. See Merrill v. Ewen, 103 Mass. App. Ct. 37, 45-
46 (2023) ("Equity generally regards as done that which ought to
be done" [citation omitted]). Cf. Forte v. Caruso, 336 Mass.
476, 481 (1957) ("Specific performance may be decreed
notwithstanding the conveyance of the land to one who was not a
bona fide purchaser"); Dooley v. Merrill, 216 Mass. 500, 500
(1914) (equitable obligation to convey land "will be enforced
not only against the holder of the legal title, but against
others taking an interest in the legal title with notice, and
adequate remedy will be afforded to carry out this principle");
Kelly v. Cucchiella, 26 Mass. App. Ct. 983, 983 (1988) (straw
purchaser bound by actions of true owner); Young v. Reed, 6
Mass. App. Ct. 18, 21-22 (1978) (seller's equitable obligation
to convey property to plaintiffs enforceable against third party
who took title with knowledge of seller's prior agreement to
convey property to plaintiffs); Morris v. Costa, 174 Conn. 592,
601 (1978) (interest of parties holding bare legal title to
property "cannot prevent the doing of complete justice as
'[e]quity can always look behind the technical legal title if
17 necessary to work out under its principles the rights of the
parties'" [citation omitted]).11
Judgment affirmed.
By the Court (Henry, Desmond, & Englander, JJ.12),
Clerk
Entered: June 25, 2025.
11 We need not address the defendants' challenge to the judge's findings on the constructive trust and unjust enrichment claims since we have determined on independent grounds that the judgment awarding specific performance on those counts was appropriate. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
12 The panelists are listed in order of seniority.