MARK D. NELSON v. BANK OF AMERICA & Another.

• Court: Massachusetts Appeals Court
• Decided: March 28, 2024
• Docket: 23-P-0814
• Status: Unpublished

Opinion

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-814

MARK D. NELSON

vs.

BANK OF AMERICA & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Mark Nelson, appeals from a judgment of the

Superior Court that entered pursuant to an order denying his

motion for summary judgment and granting the motion for summary

judgment of defendant town of Wilmington (town).2 We affirm.

Background. The following facts are undisputed. The

history of this dispute traces back to the 1990s, when Nelson's

parents acquired certain parcels of land in the town with the

intention of building several single-family homes. A definitive

subdivision plan (plan) subjected the development to certain

1 Town of Wilmington. To the extent Nelson sued the "Administration of the Town of Wilmington" as an additional defendant, it is not a separate entity from the town. See Doe v. Cambridge Pub. Sch., 101 Mass. App. Ct. 482, 486-487 (2022). 2 Nelson's claims against the bank were resolved on motions by

the bank to deposit funds pursuant to Mass. R. Civ. P. 67, 365 Mass. 835 (1974), and for separate and final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). conditions. The conditions stated that modifications to the

plan needed to be approved by the planning board and that surety

would be required prior to the sale or construction of any

property. The plan also contained two special conditions: the

provision of (1) turnarounds "at end of Polk and Poplar Streets

in accordance with acceptable design standards of the Town

Engineer" and (2) sidewalks "on the southerly side of Walnut

Street and on one side of Poplar and Polk Streets" designed and

constructed "in conformance with subdivision rules and

regulations." In accordance with G. L. c. 41, § 81U, the

developer executed and recorded a "FORM H-Covenant to Secure the

Construction of Ways and the Installation of Municipal Services"

for the approved plan.

In 1997, 2001, and 2003, three properties were released for

sale and construction in exchange for surety in the amount of

$24,900, $24,835, and $33,593, respectively, as permitted by

G. L. c. 41, § 81U. Where over the years the developer has

complied with the public improvement requirements agreed on in

the plan, the town has released escrow funds. There remains

$46,380 in surety, funded by the 2001 and 2003 payments. Nelson

admits that neither the turnaround nor the sidewalks were ever

constructed.

2 The parties cross-moved for summary judgment on Nelson's

claim of breach of the implied covenant of good faith and fair

dealing.3

Discussion. "Summary judgment is appropriate where there

are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law." Boazova v. Safety

Ins. Co., 462 Mass. 346, 350 (2012). When "the opposing party

will have the burden of proof at trial, the moving party must

demonstrate, by reference to materials properly in the summary

judgment record, unmet by countervailing materials, 'that the

party opposing the motion has no reasonable expectation of

proving an essential element of that party's case.'" Carey v.

New England Organ Bank, 446 Mass. 270, 278 (2006), quoting

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991). "We review a decision to grant summary judgment de

novo." Boazova, supra.

The only issue before us is whether Nelson has raised a

genuine issue of material fact that the town breached the

covenant of good faith and fair dealing where it has not

released surety funds and repeatedly denied Nelson's

applications to modify the conditions on the subdivision.

"Every contract implies good faith and fair dealing between the

3 Nelson alleged six other causes of action, all of which were dismissed on motion of the defendant.

3 parties to it." Anthony's Pier Four, Inc. v. HBC Assocs., 411

Mass. 451, 471 (1991), quoting Warners Ins. Co. v. Commissioner

of Ins., 406 Mass. 354, 362 n.9 (1990). The covenant does not

"create rights and duties not otherwise provided for in the

existing contractual relationship." Uno Restaurants, Inc. v.

Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004). "The

scope of the covenant is only as broad as the contract that

governs the particular relationship." Ayash v. Dana-Farber

Cancer Inst., 443 Mass. 367, 385 (2005).

To the extent a contract exists between Nelson and the

town,4 it is governed by the surety covenants and the detailed

plan. Those documents, even viewed in the light most favorable

to Nelson, establish that the surety funds were proffered in

exchange for the release from restrictive easements on the

development land held by the town. Those funds were held to

ensure that Nelson complied with the conditions enumerated in

the plan, including the construction of a turnaround and

sidewalks on the subject parcels. By his own admission, Nelson

has failed to meet those conditions. The town thus cannot be in

breach of any implied covenant of good faith and fair dealing by

not releasing the funds.

4 The town challenges Nelson's standing to receive funds deposited by his parents. Because we affirm the judgment granting the town's cross motion for summary judgment, we do not reach the issue.

4 Nelson further argues that he was not required to file an

application to amend the plan and the application process is

impracticable. That argument is not properly before us. Again,

in any event, the argument lacks merit. The record, including

prior adjudications in the Land Court, establishes that the

parcels at issue were subject to conditions imposed by the plan.

This encompasses a requirement that the developer appeal to the

planning board in order to modify conditions. Though Nelson

contends that the planning board has thus far frustrated his

attempts at completing the application process, records

submitted by the town show that he has yet to submit a complete

application on which the town could act. Should Nelson wish to

recover the surety funds without building the required

improvements, he may seek relief through the amendment process

of the planning board.5

Judgment affirmed.

By the Court (Milkey, Henry & Desmond, JJ.6),

Assistant Clerk

Entered: March 28, 2024.

5 To the extent that the passing references in the parties' briefs to "damages and court costs" and "costs and fees" constitute requests for an award, the requests are denied. 6 The panelists are listed in order of seniority.