R. SCOTT MURRAY & Another v. STEVEN A. MEYER & Others.

• Court: Massachusetts Appeals Court
• Decided: June 24, 2024
• Docket: 23-P-0799
• Status: Unpublished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-799

R. SCOTT MURRAY & another 1

vs.

STEVEN A. MEYER 2 & others. 3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs brought suit for specific performance and

damages, seeking to enforce an offer they made to purchase a

property in Mashpee. Concluding that the offer did not create a

binding agreement, a Superior Court judge granted summary

judgment in favor of the defendants. The plaintiffs appeal,

arguing that there is a genuinely disputed issue of material

1 149 Popponesset Island Real Estate, LLC.

2Individually and as personal representative of the estate of Natalie Rubin.

3 Jenna Harrington and Sassoon Cymrot Law, LLC. fact whether the parties intended to be bound by the offer. 4 We

affirm.

Background. We summarize the essential facts, as taken

from the parties' statements of undisputed fact and from the

undisputed documents in the record. We reserve discussion of

other facts as they become pertinent to our analysis.

The property at issue was an asset of the estate of Natalie

Rubin (estate). In early 2021 defendant Steven A. Meyer, the

estate's personal representative, hired a broker to sell the

property. The MLS (multiple listing service) sheet noted that

the "[p]roperty is part of an estate."

On March 13, 2021, plaintiff R. Scott Murray visited the

property with his broker, Marion Oost-Lievense, and then made an

offer to purchase it for $2,500,000. 5 The offer, which was

submitted on a standard form created by the Massachusetts

Association of Realtors, set out the purchase price, the deposit

requirements, the duration of the offer, and the closing date of

May 7, 2021, among other terms. In addition, paragraph 4 of the

4 The operative complaint contains eleven counts, but only three are at issue on appeal: Count I for breach of contract, Count II for breach of the implied covenant of good faith and fair dealing, and Count IX for specific performance.

5 Murray signed the offer on behalf of Scott Murray Popponesset Real Estate Trust. According to the complaint, this was "a placeholder" for plaintiff 149 Popponesset Island Real Estate, LLC, which "had not yet been formed."

2 offer provided that the parties "shall on or before . . . March

23, 2021 execute the Standard Purchase and Sale Agreement of the

MASSACHUSETTS ASSOCIATION OF REALTORS or substantial equivalent

which, when executed, shall become the entire agreement between

the parties." When Oost-Lievense prepared the offer on behalf

of Murray, she was aware that the property was part of an

estate. She also told Murray on the day he made the offer that

the property would continue to be shown; Murray believed,

however, that "nobody else would pay more than [his] price."

Within a day, Meyer sent the offer back to Murray with the

following change to paragraph 4: he crossed out "the Standard"

before "Purchase and Sale Agreement" and handwrote "mutually

agreeable" above it. Meyer initialed the change and signed the

offer on behalf of the estate. Murray never initialed the

change, nor did he countersign the document sent back by Meyer.

On March 15, 2021, Murray visited the property a second

time with Oost-Lievense and the estate's broker. As they were

walking out, Oost-Lievense told Murray again that the property

would continue to be shown. Two days later, Oost-Lievense sent

an e-mail message to Murray stating, "There have been other

offers, but the good news is that [one of the heirs] liked you

very much. . . . It is these small things that often make a

difference, as you know. I know it is not easy being patient,

but we need to be for now." Murray replied, "Sounds good."

3 Later that same day, Oost-Lievense called Murray and told him

that the estate had received a higher offer and was giving him

the opportunity to counter it. Murray did not have a good

reaction and was "very angry."

On March 18, 2021, Meyer sent a draft purchase and sale

agreement to Murray. Included in the draft was a provision

(paragraph 51) addressing Meyer's fiduciary obligation to the

estate to accept higher offers up to the time of closing:

"Fiduciary Obligations: BUYER agrees that Seller's obligations under this Agreement are conditioned upon SELLER receiving prior to the closing no offer to purchase the Premises, which in SELLER's sole judgment, is at a price higher or upon terms more favorable than specified herein. If SELLER receives such an offer, then, at SELLER's option, all deposits hereunder shall be refunded, and this Agreement shall be null and void and without further recourse to the parties hereto. SELLER agrees that SELLER shall not solicit any additional offers for the purchase of the Premises. For purposes of this Agreement, publication of the time and place of hearings relative to obtaining the License, as provided by law, shall not constitute solicitation of additional offers."

In addition, paragraph 52 conditioned the sale on the seller's

obtaining a license to sell from the Probate and Family Court,

if the seller "deem[ed] it advisable."

After Murray conveyed to his attorney that he would not

agree to paragraphs 51 and 52, his attorney deleted them from

the draft and sent a revised purchase and sale agreement to the

estate's attorney. The estate's attorney replied that Meyer

would not sign the agreement unless paragraphs 51 and 52

4 remained, citing Meyer's fiduciary obligations and noting that

the MLS listing disclosed that the property was part of an

estate. On March 23, 2021, Murray signed the purchase and sale

agreement, with paragraphs 51 and 52 included.

Meyer never countersigned the purchase and sale agreement.

Instead, later on March 23, he notified Murray that he had

received higher offers and did not think it advisable to sign

the agreement only to terminate it later. The next day the

estate's attorney sent an e-mail message to the interested

buyers, including Murray, stating that the estate would accept

offers until March 25, at which point Meyer would present them

to the heirs for input. Murray made an offer, but defendant

Jenna Harrington was the successful bidder. Meyer and

Harrington then executed a purchase and sale agreement, which

reflected a purchase price of $2,975,000.

Discussion. We review a grant of summary judgment de novo.

See Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012).

Summary judgment is appropriate if the evidence, viewed in the

light most favorable to the nonmoving party, raises no genuine

issue as to any material fact and the moving party is entitled

to judgment as a matter of law. See Carey v. New England Organ

Bank, 446 Mass. 270, 278 (2006). "Only those facts that, if

true, provide a basis for a reasonable jury to find for a party

are material." Id. Where, as here, the nonmoving party will

5 have the burden of proof at trial, the moving party can prevail

on summary judgment by demonstrating that the nonmoving party

"has no reasonable expectation of proving an essential element

of that party's case." Kourouvacilis v. General Motors Corp.,

410 Mass. 706, 716 (1991).

The question before us is whether a reasonable jury could

find that a binding agreement was created when Meyer signed

Murray's offer to purchase, but only after altering it to

require the future execution of a "mutually agreeable" purchase

and sale agreement. "Normally the fact that parties contemplate

the execution of a final written agreement justifies a strong

inference that the parties do not intend to be bound by earlier

negotiations or agreements until the final terms are settled."

Rosenfield v. United States Trust Co., 290 Mass. 210, 216

(1935). This "fact does not conclusively establish such

intention," however. Id. See McCarthy v. Tobin, 429 Mass. 84,

87 (1999) ("The controlling fact is the intention of the

parties"). Rather, if the parties have agreed on "all the

material terms which are to be incorporated into a future

writing," it can be inferred that the future writing is "a mere

memorial" of the agreement, "which is already final by the

earlier mutual assent of the parties to those terms."

Rosenfield, supra. On the other hand, if the parties have not

agreed on all the material terms, this "may not merely be

6 evidence of the intent of the parties to be bound only in the

future, but may prevent any rights and or obligations from

arising on either side for lack of a completed contract." Id.

Here, by striking "the Standard" before "Purchase and Sale

Agreement," replacing it in handwriting with "mutually

agreeable," and initialing the change in the offer, Meyer

signaled his intent not to be bound until the execution of a

more formal agreement. See Rosenfield, 290 Mass. at 218

(defendants' refusal to enter into "short form of agreement" and

insistence on having lease drawn showed that "parties did not

intend to be bound until the perfected lease was executed");

Levenson v. LMI Realty Corp., 31 Mass. App. Ct. 127, 129, 131

(1991) (addition of "satisfactory to both parties," after "we

will enter into a purchase and sale agreement forthwith,"

"carried special weight by virtue of having been inserted in

writing in a typewritten letter," and its purpose "was to ensure

that [the seller] would not be bound until [his attorney] had

reviewed the purchase and sale agreement, strongly suggesting,

in turn, that that was to be the decisive document"). Murray

never initialed the change, nor did he countersign the document

returned by Meyer. Because Meyer's acceptance of Murray's offer

was not unconditional but "in the nature of a new offer, or

counter proposal," Murray's failure to accept Meyer's

counteroffer meant that the parties never entered into a binding

7 contract. Lawrence v. Rosenberg, 238 Mass. 138, 141 (1921).

See Moss v. Old Colony Trust Co., 246 Mass. 139, 148 (1923) ("an

offer must be accepted in the terms in which it is made in order

to become a binding contract, and . . . a conditional acceptance

or one that varies from the offer in any substantial respect is

in effect a rejection and is the equivalent of a new

proposition").

Moreover, even had Murray accepted the counteroffer, the

undisputed evidence in the record shows that the parties had not

agreed on all the material terms that were to be incorporated

into a future purchase and sale agreement. The plaintiffs do

not contest that paragraph 51 of the draft purchase and sale

agreement, concerning Meyer's fiduciary duties to the estate,

was material. 6 When the offers were exchanged, there was no

meeting of the minds on that issue, as evidenced by Murray's

initial rejection of paragraph 51 and Meyer's response that he

would not sign a purchase and sale agreement without paragraph

51 included. This demonstrates that the parties "had reached

the stage of 'imperfect negotiation' and not of a completed

contract." Rosenfield, 290 Mass. at 217, quoting Kaufman v.

Lennox, 265 Mass. 487, 489 (1929). See Germagian v. Berrini, 60

6 We therefore need not decide whether paragraph 52 was material, an issue that the parties do not address in any detail in their briefs.

8 Mass. App. Ct. 456, 457, 460 (2004) (seller's "addition of the

words 'on or before' to the closing date contained in the

offer" -- which he initialed but buyer did not initial -- and

buyer's "subsequent request to extend the closing date" showed

that parties did not "agree in the offer upon an essential

term"); Nelsen v. Rebello, 26 Mass. App. Ct. 270, 274 (1988)

(sellers had right to reject purchase and sale agreement because

it included terms about payment of broker's commission "to which

they had not previously agreed"); Blomendale v. Imbrescia, 25

Mass. App. Ct. 144, 147 (1987) (buyer's introduction of "new

elements which had not been discussed, let alone agreed upon"

demonstrated that "parties did not intend to be bound by the

preliminary document").

The facts of this case are distinguishable from those in

McCarthy, 429 Mass. 84, on which the plaintiffs heavily rely.

In McCarthy, although the offer to purchase (which was signed by

both parties) contemplated the future execution of a

"satisfactory" purchase and sale agreement, id. at 85, the court

held that the offer was binding because the parties had already

agreed on all material terms of the transaction. See id. at 87-

88. Numerous cases have since distinguished McCarthy on the

ground that it was "manifest" that the parties there intended to

be bound by the terms of the offer. Battle v. Howard, 489 Mass.

480, 492 (2022). See, e.g., Walsh v. Morrissey, 63 Mass. App.

9 Ct. 916, 917 (2005); Coldwell Banker/Hunneman v. Shostack, 62

Mass. App. Ct. 635, 639 (2004); Germagian, 60 Mass. App. Ct. at

459-460. For example, in Battle, supra, the court held, in the

context of a partition proceeding, that the commissioner's

acceptance of a buyer's offer did not create binding obligations

where any purchase and sale agreement would have been subject to

court approval and the parties' right to object, and the

commissioner reported that he accepted the offer "subject to

approval by th[e] Court." The court reasoned that these facts

"did not evidence the same definite intent to be bound as the

acceptance of the firm offer in McCarthy." Id. at 493.

Similarly, here, Meyer's belief that he had a fiduciary duty to

the estate to accept the best offer for the property

demonstrated his lack of intent to be bound by Murray's offer.

In arguing otherwise, the plaintiffs point to statements

that Meyer made to third parties suggesting that he believed he

was bound by the offer. 7 It is undisputed, however, that Murray

was not aware of these statements until after he sued and so

7 In particular, the plaintiffs point to Meyer's statement to one of the heirs, who was living at the property, that Meyer had "accepted an unconditional offer to purchase the property"; his statement to the same heir that "a mutually agreed upon offer is a binding contract . . . regardless of any issues arising under a subsequent Purchase and Sale Agreement"; and his instruction to the estate's broker to tell a prospective buyer that he had "obligations associated with the accepted initial offer."

10 could not have appreciated them as manifestations of Meyer's

assent. See Restatement (Second) of Contracts § 19(2) (1981)

("The conduct of a party is not effective as a manifestation of

his assent unless he . . . knows or has reason to know that the

other party may infer from his conduct that he assents"). And

even putting this aside, statements of assent do not "bar a

defendant from asserting that he had made no completed

agreement" if the facts show that "all material matters had not

been agreed upon." Rosenfield, 290 Mass. at 217-218. Thus, in

Rosenfield, the court held that statements by a defendant to the

plaintiffs that the "deal was closed" and "[t]hat is all

settled" did not give rise to a binding contract given the

undisputed fact that the parties had not agreed on several

material terms. Id. See Kaufman v. Lennox, 265 Mass. 487, 488

(1929), quoting Knowles v. Griswold, 252 Mass. 172, 175 (1925)

(plaintiff's "case [was] not strengthened by the allegation as

to the expression of satisfaction by [defendant]" because "[i]t

is essential to the existence of a contract that its nature and

the extent of its obligations be certain"). Likewise, Meyer's

statements do not create a genuine dispute as to whether

Murray's offer was binding where the undisputed evidence shows

that the parties had not agreed on all the material terms

governing the purchase and sale. See Rosenfield, supra at 218

(insufficient evidence to submit case to jury, even drawing

11 "every assumption in favor of the plaintiffs of which the

evidence is fairly susceptible").

Relatedly, the plaintiffs argue that, viewing the evidence

in the light most favorable to them, a reasonable jury could

conclude that "Meyer had 'seller's remorse' and concocted his

story that he always intended to require Paragraph 51 [l]anguage

in the eventual purchase and sale agreement as a way to try to

undo his contractual obligations to [Murray]." We agree that

Meyer could have made his intent plainer in the offer by

including the paragraph 51 language or a proviso similar to what

we recommended in Goren v. Royal Invs., Inc., 25 Mass. App. Ct.

137, 142-143 (1987), which we set out in the margin. 8 But unlike

in Goren, where the seller was found to have invented reasons to

back out of the agreement upon receiving a higher offer, id. at

139, the evidence here shows that Meyer always intended to

entertain other offers and that Murray was aware of this. As

mentioned, the MLS listing stated that the property was part of

an estate, and Oost-Lievense informed Murray when he submitted

his offer and afterwards that the property would continue to be

8 "The purpose of this document is to memorialize certain business points. The parties mutually acknowledge that their agreement is qualified and that they, therefore, contemplate the drafting and execution of a more detailed agreement. They intend to be bound only by the execution of such an agreement and not by this preliminary document." Goren, 25 Mass. App. Ct. at 143.

12 shown. Murray told Oost-Lievense that he believed no one would

make an offer higher than his, demonstrating that he knew that

Meyer would entertain other offers. Also, a few days after

Murray made his offer, Oost-Lievense told him that the estate

had received other offers and that they needed to be patient, to

which Murray replied, "Sounds good." These facts are undisputed

and show that Meyer, who was acting not in his personal interest

but as the estate's personal representative, did not concoct

paragraph 51 as a way to renege on contractual obligations he

owed to Murray. See Nelson, 26 Mass. App. Ct. at 274 ("matter

of the broker's fee was not a pretext but was in fact the

principal reason the sellers refused to sign the agreement").

In sum, we conclude that there is no genuine issue as to

any material fact, that the parties did not reach a meeting of

the minds on all essential terms of the transaction, and that

they therefore never entered into a binding agreement as a

matter of law. See Coldwell Banker/Hunneman, 62 Mass. App. Ct.

13 at 640 ("The summary judgment materials show that the [disputed]

clause was material as matter of law"). Summary judgment for

the defendants was thus proper. 9,10

Judgment affirmed.

By the Court (Vuono, Shin & Toone, JJ. 11),

Clerk

Entered: June 24, 2024.

9 To the extent we have not specifically addressed any of the plaintiffs' arguments, we have considered all of them and see no basis on which to disturb the judgment.

10 Meyer's request for attorney's fees is denied.

11 The panelists are listed in order of seniority.