Simon Allen Wentworth v. Whitco Properties LLC.

• Court: Massachusetts Appeals Court
• Decided: January 7, 2025
• Docket: 23-P-1207
• Status: Unpublished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-1207

SIMON ALLEN WENTWORTH

vs.

WHITCO PROPERTIES LLC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Pursuant to a verified complaint in the Superior Court,

Simon Allen Wentworth sought declaratory relief and specific

performance against Whitco Properties LLC (Whitco) for a

property in Worcester. The complaint alleged that Whitco

breached the purchase and sale agreement (P&S) that the parties

entered into in the fall of 2020. After a jury-waived trial,

the judge entered judgment for Whitco and dismissed Wentworth's

complaint. This appeal followed; we affirm.

Background. Wentworth endeavored to buy a multifamily home

in Worcester from Whitco. The parties executed a P&S for the

property, which called for the closing to occur on October 15,

2020. Paragraph 27 of the P&S required that all modifications to the agreement be in writing. Wentworth's title examination

revealed a prior mortgage that had not been discharged. As a

result, the closing could not go forward on October 15, 2020.

The parties then signed a written agreement to extend the

closing until October 22, 2020.1 The property did not close on

October 22, 2020, and there was never a written, agreed upon

closing date set thereafter.

In the months following October 2020, the parties continued

to work together to resolve the issue of the undischarged

mortgage. On March 5, 2021, the mortgage discharge was

recorded. Upon learning this, Wentworth's attorney emailed

Whitco's attorney to request that the parties set a closing date

of April 12, 2021. In response, Whitco's attorney stated that

Whitco was no longer interested in selling the property and set

in motion the return of Wentworth's deposit and escrow funds.

Wentworth filed suit.

Discussion. At bottom, a P&S is a contract. "The

interpretation of a contract is a question of law, which we

review de novo." James B. Nutter & Co. v. Estate of Murphy, 478

Mass. 664, 667 (2018). "When the words of a contract are clear,

they control, and we must construe them according to their plain

meaning, in the context of the contract as a whole." Lieber v.

1 The extension request did not state a reason, and it was not expressly linked to paragraph 4 of the buyer's rider.

2 President & Fellows of Harvard College (No. 2), 488 Mass. 816,

823 (2022). A party's own understanding or intent regarding the

meaning of a contract is immaterial. See Chambers v. Gold Medal

Bakery, Inc., 83 Mass. App. Ct. 234, 245 (2013). "A [contract]

term is ambiguous only if it is susceptible of more than one

meaning and reasonably intelligent persons would differ as to

which meaning is the proper one." Citation Ins. Co. v. Gomez,

426 Mass. 379, 381 (1998).

"When reviewing the trial judge's decision, we accept his

findings of fact as true unless they are clearly erroneous, and

we give due regard to the judge's assessment of the witnesses'

credibility." Andover Hous. Auth. v. Shkolnik, 443 Mass. 300,

306 (2005), citing Mass. R. Civ. P. 52 (a), as amended, 423

Mass. 1402 (1996). A finding of fact is clearly erroneous "only

when, although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed" (quotations and

citation omitted). Demoulas v. Demoulas Super Mkts., Inc., 424

Mass. 501, 509 (1997). Critically here, "[i]t is the

appellant's burden to show that a finding of fact is clearly

erroneous." Id.

Wentworth claims that Whitco breached the P&S by refusing

to sell him the property after the encumbering mortgage was

discharged in March 2021. Wentworth sought a declaration to

3 that effect and specific performance. Wentworth is not entitled

to relief as, on the facts the judge found, there was no breach.

As the judge properly held, Whitco as the seller was

obligated under the P&S to deliver at closing a good and clear

record and a marketable title. The undischarged mortgage of

which the seller and buyer were both aware prevented Whitco from

delivering such a title. See Hastings v. Gay, 55 Mass. App. Ct.

157, 161-162 (2002). The deadline for performance under the

P&S, as extended in writing, was October 22, 2020. The closing

did not occur on that date, and neither party requested in

writing a further extension with a date certain for closing.

As stated above, paragraph 27 required that any changes to

the agreement be made in writing and signed by both parties.

Although such a provision is capable of being waived by words or

conduct, see Simpson v. Vasiliou, 29 Mass. App. Ct. 699, 701-702

(1991), the judge found, as a matter of fact, that Whitco did

not waive this requirement. This conclusion is supported by the

evidence that the only modification to the P&S, i.e., the

parties' course of conduct, was done in a writing signed by the

parties' representatives. See Psychemedics Corp. v. Boston, 486

Mass. 724, 745 n.26 (2021). Although there is evidence from

which the judge might have reached a different conclusion,2

2 For example, there was evidence that Whitco did not return Wentworth's deposit and continued, through its attorney, to work

4 Wentworth does not argue that the judge's finding was clearly

erroneous. Accordingly, any claim related to the applicability

of paragraph 27 is waived. See Mass. R. A. P. 16 (a) (9) (A),

as appearing in 481 Mass. 1628 (2019).

Rather, Wentworth claims that paragraph 4 of the "buyer's

rider" to the P&S required the seller to use reasonable efforts

to cure any title defects and restricted the right of

termination solely to the buyer, with no associated time

limitation.3 The judge properly rejected this claim.

Notwithstanding the expiration of the P&S on October 22,

2020, the judge also concluded that when an agreement includes

no outside time for performance, performance must be made within

a reasonable time. "What is a reasonable period of time depends

on the nature of the contract, the probable intention of the

parties, and the attendant circumstances." Prism Group, Inc. v.

Slingshot Techs. Corp., 104 Mass. App. Ct. 785, 796 (2024),

quoting Plymouth Port, Inc. v. Smith, 26 Mass. App. Ct. 572, 575

(1988).

The judge determined, based on the P&S and the financing

commitment documents, that the parties intended that this matter

collaboratively with Wentworth's attorney to track down and record the errant mortgage discharge.

3 Wentworth couples this provision with the fact that the parties worked together to discharge the encumbering mortgage, which he claims evidenced an intent to waive paragraph 27.

5 close in 2020. Included in the P&S are several provisions that

allow for thirty-day extensions, and the financing commitment

letter obtained by the buyer contained a 120-day commitment as

of September 2020. Because the parties disputed whether the

contract was still in effect after October 2020, the

reasonableness of the delay was a question of fact. Cf.

Middleborough v. Middleborough Gas & Elec. Dep't, 47 Mass. App.

Ct. 655, 658 (1999). To the extent that Wentworth argues that

the judge's decision that a five-month extension of the parties'

obligations without an agreed upon closing date was not

reasonable given the parties' intentions and the circumstances

underlying the P&S, Wentworth has not carried that burden.

Judgment affirmed.

By the Court (Vuono, Meade & Hand, JJ.4),

Clerk

Entered: January 7, 2025.

4 The panelists are listed in order of seniority.