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
23-P-1067
KIT NORMAND & another1
vs.
BRENDA S. HARYSLAK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The seller, Brenda S. Haryslak, appeals from a judgment
issued by a Superior Court judge granting summary judgment to
the buyers, Kit and Jason Normand, and awarding them the return
of their deposit. Concluding that the buyers invoked their
right to void the contract when the seller did not find suitable
housing by the contract's deadline, and that the judgment
properly included costs and prejudgment interest, we affirm.
1. Standard of review. "[T]he standard of review of a
grant of summary judgment is whether, 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
1 Jason Normand. a judgment as a matter of law." Coviello v. Richardson, 76
Mass. App. Ct. 603, 607 (2010), quoting Siebe, Inc. v. Louis M.
Gerson Co., 74 Mass. App. Ct. 544, 548 (2009). "The moving
party bears the burden of demonstrating the absence of a triable
issue of fact on every relevant issue." Scholz v. Delp, 473
Mass. 242, 249 (2015), cert. denied, 578 U.S. 1023 (2016).
"Once the moving party has met this burden, the opposing party
is 'required to respond by "set[ting] forth specific facts
showing that there is a genuine issue for trial."'" Hill-
Junious v. UTP Realty, LLC, 492 Mass. 667, 672 (2023), quoting
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991). "In deciding a motion for summary judgment the court
may consider the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits." Bank of
N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019), quoting
Niles v. Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18
(2017). "Our review of a motion judge's decision on summary
judgment is de novo, because we examine the same record and
decide the same questions of law." Brandt v. Davis, 98 Mass.
App. Ct. 734, 737 (2020), quoting Boston Globe Media Partners,
LLC v. Department of Criminal Justice Info. Servs., 484 Mass.
279, 286 (2020).
2 Where, as here, summary judgment is based on the language
of a contract, we start by interpreting the contract. "The
words of a contract must be considered in the context of the
entire contract." Brigade Leveraged Capital Structures Fund
Ltd. v. PIMCO Income Strategy Fund, 466 Mass. 368, 374 (2013),
quoting General Convention of New Jerusalem in the U.S. of Am.,
Inc. v. MacKenzie, 449 Mass. 832, 835 (2007). "[E]very word is
to be given force so far as practicable," Beninati v. Borghi, 90
Mass. App. Ct. 556, 563 (2016), quoting MacDonald v. Hawker, 11
Mass. App. Ct. 869, 872-873 (1981), to avoid rendering any "part
useless or inexplicable," First Specialty Ins. Corp. v. Pilgrim
Ins. Co., 83 Mass. App. Ct. 812, 819 (2013), quoting Worcester
Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245 (1986). "When
contract language is unambiguous, it must be construed according
to its plain meaning." Balles v. Babcock Power Inc., 476 Mass.
565, 571-572 (2017).
2. Suitable housing contingency. Under the contract, the
sale of the house was "contingent on seller finding suitable
housing on or before December 30, 2021 and closing
simultaneously with this sale on February 2 2022, but if seller
does not find suitable housing 12/30/21 buyer or seller has
option to void contract." The summary judgment record
establishes that there is no genuine issue of material fact
3 regarding whether the buyers properly exercised their right to
void the contract pursuant to this provision.
At no point prior to January 2, 2022, did the seller assert
to the buyers that she had found suitable housing. The seller's
evidence that she met the suitable housing contingency was her
personal affidavit stating, "On December 29th I found a home and
an apartment that either could work for my family." Nothing in
her affidavit suggested that either the house or the apartment
would satisfy the simultaneous closing requirement in the
suitable housing contingency. Moreover, her deposition
testimony clarifies that, by saying that she "found a home and
an apartment," the seller did not mean that she had any
agreement that those options would "clos[e] simultaneously with
[the sale between the buyer and seller] on February 2 2022," or,
for that matter, an agreement of any sort. At her deposition,
the seller said that, as of December 30, 2021, she was going to
move into "the house [she] live[s] in" now. Although she had
made an offer and had "given" money for that home, she "had to
wait on [that seller's] husband to confirm for it to be, like,
legit." The husband did not confirm until the following day.
The deposition testimony, therefore, confirms that she had no
actual agreement by the deadline.
4 In light of the clarification in the deposition, the
affidavit does not create a genuine issue of material fact as to
whether the seller had found a place to live that would close on
February 2, 2022. See Ortiz v. Morris, 97 Mass. App. Ct. 358,
362 (2020), quoting Hanover Ins. Co. v. Leeds, 42 Mass. App. Ct.
54, 58 (1997) ("[a] party cannot create a disputed issue of fact
[simply] by . . . contradicting by affidavit statements
previously made under oath at a deposition"). The buyers,
therefore, had the right to void the contract pursuant to the
plain language in the suitable housing contingency.2 See
Coviello, 76 Mass. App. Ct. at 608, quoting Owen v. Kessler, 56
Mass. App. Ct. 466, 469 (2002) ("parties will be held to the
deadlines they have imposed upon themselves when they agree in
writing that time is to be of the essence"). As a matter of
law, the summary judgment record establishes that the buyers
here exercised their right to void the contract by promptly
notifying the seller.3
2 We note that, contrary to the seller's argument on appeal, suitable housing contingencies protect buyers' interests as well as sellers' interests because such contingencies ensure that buyers are able to move into houses by agreed-upon dates instead of having to go through the complicated process of evicting sellers.
3 Because the buyers voided the contract pursuant to the suitable housing contingency, we need not reach whether the buyers diligently pursued financing, an admittedly dubious proposition.
5 3. Covenant of good faith and fair dealing. "The covenant
of good faith and fair dealing . . . provides 'that neither
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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
23-P-1067
KIT NORMAND & another1
vs.
BRENDA S. HARYSLAK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The seller, Brenda S. Haryslak, appeals from a judgment
issued by a Superior Court judge granting summary judgment to
the buyers, Kit and Jason Normand, and awarding them the return
of their deposit. Concluding that the buyers invoked their
right to void the contract when the seller did not find suitable
housing by the contract's deadline, and that the judgment
properly included costs and prejudgment interest, we affirm.
1. Standard of review. "[T]he standard of review of a
grant of summary judgment is whether, 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
1 Jason Normand. a judgment as a matter of law." Coviello v. Richardson, 76
Mass. App. Ct. 603, 607 (2010), quoting Siebe, Inc. v. Louis M.
Gerson Co., 74 Mass. App. Ct. 544, 548 (2009). "The moving
party bears the burden of demonstrating the absence of a triable
issue of fact on every relevant issue." Scholz v. Delp, 473
Mass. 242, 249 (2015), cert. denied, 578 U.S. 1023 (2016).
"Once the moving party has met this burden, the opposing party
is 'required to respond by "set[ting] forth specific facts
showing that there is a genuine issue for trial."'" Hill-
Junious v. UTP Realty, LLC, 492 Mass. 667, 672 (2023), quoting
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991). "In deciding a motion for summary judgment the court
may consider the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits." Bank of
N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019), quoting
Niles v. Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18
(2017). "Our review of a motion judge's decision on summary
judgment is de novo, because we examine the same record and
decide the same questions of law." Brandt v. Davis, 98 Mass.
App. Ct. 734, 737 (2020), quoting Boston Globe Media Partners,
LLC v. Department of Criminal Justice Info. Servs., 484 Mass.
279, 286 (2020).
2 Where, as here, summary judgment is based on the language
of a contract, we start by interpreting the contract. "The
words of a contract must be considered in the context of the
entire contract." Brigade Leveraged Capital Structures Fund
Ltd. v. PIMCO Income Strategy Fund, 466 Mass. 368, 374 (2013),
quoting General Convention of New Jerusalem in the U.S. of Am.,
Inc. v. MacKenzie, 449 Mass. 832, 835 (2007). "[E]very word is
to be given force so far as practicable," Beninati v. Borghi, 90
Mass. App. Ct. 556, 563 (2016), quoting MacDonald v. Hawker, 11
Mass. App. Ct. 869, 872-873 (1981), to avoid rendering any "part
useless or inexplicable," First Specialty Ins. Corp. v. Pilgrim
Ins. Co., 83 Mass. App. Ct. 812, 819 (2013), quoting Worcester
Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245 (1986). "When
contract language is unambiguous, it must be construed according
to its plain meaning." Balles v. Babcock Power Inc., 476 Mass.
565, 571-572 (2017).
2. Suitable housing contingency. Under the contract, the
sale of the house was "contingent on seller finding suitable
housing on or before December 30, 2021 and closing
simultaneously with this sale on February 2 2022, but if seller
does not find suitable housing 12/30/21 buyer or seller has
option to void contract." The summary judgment record
establishes that there is no genuine issue of material fact
3 regarding whether the buyers properly exercised their right to
void the contract pursuant to this provision.
At no point prior to January 2, 2022, did the seller assert
to the buyers that she had found suitable housing. The seller's
evidence that she met the suitable housing contingency was her
personal affidavit stating, "On December 29th I found a home and
an apartment that either could work for my family." Nothing in
her affidavit suggested that either the house or the apartment
would satisfy the simultaneous closing requirement in the
suitable housing contingency. Moreover, her deposition
testimony clarifies that, by saying that she "found a home and
an apartment," the seller did not mean that she had any
agreement that those options would "clos[e] simultaneously with
[the sale between the buyer and seller] on February 2 2022," or,
for that matter, an agreement of any sort. At her deposition,
the seller said that, as of December 30, 2021, she was going to
move into "the house [she] live[s] in" now. Although she had
made an offer and had "given" money for that home, she "had to
wait on [that seller's] husband to confirm for it to be, like,
legit." The husband did not confirm until the following day.
The deposition testimony, therefore, confirms that she had no
actual agreement by the deadline.
4 In light of the clarification in the deposition, the
affidavit does not create a genuine issue of material fact as to
whether the seller had found a place to live that would close on
February 2, 2022. See Ortiz v. Morris, 97 Mass. App. Ct. 358,
362 (2020), quoting Hanover Ins. Co. v. Leeds, 42 Mass. App. Ct.
54, 58 (1997) ("[a] party cannot create a disputed issue of fact
[simply] by . . . contradicting by affidavit statements
previously made under oath at a deposition"). The buyers,
therefore, had the right to void the contract pursuant to the
plain language in the suitable housing contingency.2 See
Coviello, 76 Mass. App. Ct. at 608, quoting Owen v. Kessler, 56
Mass. App. Ct. 466, 469 (2002) ("parties will be held to the
deadlines they have imposed upon themselves when they agree in
writing that time is to be of the essence"). As a matter of
law, the summary judgment record establishes that the buyers
here exercised their right to void the contract by promptly
notifying the seller.3
2 We note that, contrary to the seller's argument on appeal, suitable housing contingencies protect buyers' interests as well as sellers' interests because such contingencies ensure that buyers are able to move into houses by agreed-upon dates instead of having to go through the complicated process of evicting sellers.
3 Because the buyers voided the contract pursuant to the suitable housing contingency, we need not reach whether the buyers diligently pursued financing, an admittedly dubious proposition.
5 3. Covenant of good faith and fair dealing. "The covenant
of good faith and fair dealing . . . provides 'that neither
party shall do anything which will have the effect of destroying
or injuring the right of the other party to receive the fruits
of the contract.'" A.L. Prime Energy Consultant, Inc. v.
Massachusetts Bay Transp. Auth., 479 Mass. 419, 434 (2018),
quoting Weiler v. PortfolioScope, Inc., 469 Mass. 75, 82 (2014).
"The scope of the covenant [of good faith and fair dealing] is
only as broad as the contract that governs the particular
relationship." Ayash v. Dana-Farber Cancer Inst., 443 Mass.
367, 385, cert. denied, Globe Newspaper Co. v. Ayash, 546 U.S.
927 (2005). "[A] breach occurs when one party violates the
reasonable expectations of the other." Robert & Ardis James
Found. v. Meyers, 474 Mass. 181, 188 (2016), quoting Chokel v.
Genzyme Corp., 449 Mass. 272, 276 (2007).
Here, the seller acknowledges that the buyers could put
offers on other houses while under contract with the seller
without breaching the covenant of good faith and fair dealing.
The seller argues, however, that the buyers breached the
covenant of good faith and fair dealing by failing to diligently
pursue a mortgage after they put an offer on another house.4 The
4 The seller further argues that the buyers breached the covenant of good faith and fair dealing by failing to tell the
6 contract, however, already prohibited the buyers from invoking
the mortgage contingency in the absence of diligent efforts to
obtain a mortgage, and the buyers properly invoked the housing
contingency to terminate the contract, making their diligence in
seeking a mortgage a moot point.
Moreover, the contemporaneous text communications between
the buyers and their realtor in early December show that they
were frustrated with the seller because she had not found
suitable housing, and they were concerned that she would not
find suitable housing by December 30, 2021. Expressing
discontent, one of the buyers commented that, "if [she] didn't
love the house and really want it, [she]'d be done." In short,
the summary judgment record establishes that the buyers' concern
about the housing contingency was the reason why this sale
ultimately failed. See Ayash, 443 Mass. at 385.
4. Costs and prejudgment interest. The seller argues that
she should not have been "penalized" by having to pay statutory
costs and prejudgment interest as part of the judgment.
seller that they expected a gift from a family member to secure a mortgage. The seller did not raise this argument to the motion judge, so we do not consider it on appeal. See Fitzpatrick v. Department of Correction, 102 Mass. App. Ct. 617, 624 n.12 (2023), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued below may not be argued for the first time on appeal").
7 Statutory costs and prejudgment interest, however, are not a
penalty here; they are required by law. See G. L. c. 231, § 6C
("In all actions based on contractual obligations, upon a
verdict, finding or order for judgment for pecuniary damages,
interest shall be added by the clerk of the court to the amount
of damages, at the contract rate, if established, or at the rate
of twelve per cent per annum from the date of the breach or
demand"); Mass. R. Civ. P. 54 (d), as appearing in 382 Mass. 821
(1980) ("costs shall be allowed as of course to the prevailing
party"). The judgment properly included statutory costs and
prejudgment interest.5
Judgment affirmed.
By the Court (Ditkoff, Singh & Hodgens, JJ.6),
Clerk
Entered: September 25, 2024.
5 The buyers' request for double costs on appeal is denied. "Although the . . . appeal is unsuccessful, it is not frivolous." Perry v. Zoning Bd. of Appeals of Hull, 100 Mass. App. Ct. 19, 25 n.10 (2021), quoting Filbey v. Carr, 98 Mass. App. Ct. 455, 462 n.10 (2020).
6 The panelists are listed in order of seniority.