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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 2016-2511
CLIFFORD LEARY, as personal representative of the estate of ELAINE M. LEARY
vs.
CHARLES J. SELLARI, JR.
ORDER ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
’ This dispute is about the right to receive a $30,500 deposit (“the Deposit”), presently held
in escrow by a real estate agent, under the terms of a Purchase and Sale Agreement
(“Agreement”) for the sale of real estate located at 84 Properzi Way, Somerville, Massachusetts.
The Agreement is dated August 14, 2015. Listed as “SELLER” in the Agreement is Elaine M.
Leary. Listed as “BUYER” in the Agreement is defendant, Charles J. Sillari, Jr. or his nominee.
Sillari, as the BUYER, paid the Deposit to be held in escrow by Benoit Real Estate until
“instructions mutually given in writing by the SELLER and the Buyer, or by an order of a Court
of competent jurisdiction.”
It is undisputed that the Agreement was terminated. The property was sold to another
buyer in January 2016, for a price higher than what is stated in the Agreement. The parties are in
a dispute, however, as to whom the Deposit should be paid. Sillari relies upon § 26 of the
Agreement giving him the right to terminate the Agreement if he cannot obtain financing and to
teceive “forthwith” the refund of the Deposit. Plaintiff argues that {26 allows a refund upon
termination only if the BUYER (Sillari) used “diligent efforts” to obtain financing. Plaintiffalleges that Sillari did not use diligent efforts.
The summary judgment record is mixed as to these allegations. It is conceded by Sillari
for purposes of this motion that he did not apply for financing in writing within 2 business days
of the signing of the Agreement, but points to Rider B of the Agreement to argue that a written
application was not required. Sillari explains, under oath, that he did timely apply verbally to his
regular lender for financing. Plaintiff denies that what Sillari says he did constitutes “diligent
efforts.” This dispute over “diligent efforts” and compliance with the Agreement raises issues of
fact that carmot be resolved on summary judgment.
There is a threshold issue, however, that determines the fate of the Deposit. The
Agreement is unenforceable because the selling party to the Agreement, Elaine M. Leary, was
deceased at the time the Agreement was entered into.
The following facts are undisputed. Elaine M. Leary died on April 7, 2014, more than 15
months before the Agreement was signed. Nevertheless the Agreement states that “Elaine M.
Leary, hereinafter called the SELLER, agrees to SELL .. ..” The Agreement goes on to impose
certain obligations on the SELLER with respect to conveying the property. At page 7 of the
Agreement, there is a signature over the line for “SELLER” that is indecipherable. Nowhere in
the Agreement is there reference to Elaine M. Leary’s death, or to her estate, or to a personal
representative of Elaine M. Leary acting in her behalf. At the time of entering into the
Agreement, Sillari did not know that Elaine M. Leary was deceased.
The Agreement was prepared by a lawyer, Cynthia F, Snow, acting for Clifford Leary.
The record reflects that Clifford Leary was, under an Order for Informal Probate, appointed as
personal representative of the estate of Elaine M. Leary on September 19, 2014. It was Snow,however, that conducted the negotiations with Sillari for the Agreement. After the execution of
the Agreement, it was Snow who communicated with Sillari regarding extensions of the closing
date and the date by which financing had to occur. There is nothing in the record to suggest that
Sillari had any direct communications with Clifford Leary or that Sillari knew that Clifford Leary
was the personal representative of the estate of Elaine M. Leary.
In order to create an enforceable contract, both parties to the contract must have the
capacity to enter into the contract. Restatement (Second) Contracts §12, Because Elaine M. Leary
was deceased at the time of the Agreement, she, obviously, did not have the capacity to contract
on that date. Assuming, for purposes of argument, that Clifford Leary, as personal representative
of the estate of Elaine M. Leary, had the capacity and authority to contract for the sale of the
property,' the stark fact is that Clifford Leary was not a party to the Agreement. He is nowhere
mentioned in the Agreement, as the personal representative of Elaine M. Leary or in his own
right.
The Statute of Frauds, G.L. c. 259, § 1, mandates that “[nJo action may be brought...
upon a contract for the sale of lands . . . [uJnless the promise, contract or agreement upon which
such action is brought, or some memorandum or note thereof, is in writing and signed by the
party to be charged therewith or by some person thereunto by him lawfully authorized.” The
party to be charged under the terms of the Agreement was Elaine M. Leary. She did not sign the
Agreement and, of course, she was not alive to have authorized Clifford Leary to sign on her
behalf. The Agreement is, therefore, unenforceable.
' The record reflects that when the property was subsequently sold, the Purchase and Sale
Agreement, dated November 6, 2015, identified Clifford Leary as the SELLER.
3CONCLUSION
Plaintiff's complaint seeks relief in two counts: Count I for breach of contract and Count
Il for violation of G.L. c. 93A. The premise of both counts is that there was an enforceable
Agreement by which plaintiff was entitled to the Deposit. Defendant’s motion for summary
judgment will be ALLOWED because the Agreement is unenforceable. As a result, it is hereby
ORDERED that the escrow agent holding the Deposit pay the money to defendant, Charles
Salliri. Plaintiff's complaint is DISMISSED.
Defendant also moves for summary judgment in his favor on his counterclaims for fraud
and intentional interference with contractual relations. Because those claims alleging intentional
acts require a finding as to plaintifi’s state of mind, ] conclude that summary judgment is
inappropriate. Accordingly, the cross-motions for summary judgment with respect to the
counterclaims are DENIED.
By the Court,
Lard 8 Teherogey ~
Edward P. Leibensperger
Justice of the Superior Court
Date: June 19, 2018
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[3 —_ COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION No. 2016-2511 CLIFFORD LEARY, as personal representative of the estate of ELAINE M. LEARY vs. CHARLES J. SELLARI, JR. ORDER ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT ’ This dispute is about the right to receive a $30,500 deposit (“the Deposit”), presently held in escrow by a real estate agent, under the terms of a Purchase and Sale Agreement (“Agreement”) for the sale of real estate located at 84 Properzi Way, Somerville, Massachusetts. The Agreement is dated August 14, 2015. Listed as “SELLER” in the Agreement is Elaine M. Leary. Listed as “BUYER” in the Agreement is defendant, Charles J. Sillari, Jr. or his nominee. Sillari, as the BUYER, paid the Deposit to be held in escrow by Benoit Real Estate until “instructions mutually given in writing by the SELLER and the Buyer, or by an order of a Court of competent jurisdiction.” It is undisputed that the Agreement was terminated. The property was sold to another buyer in January 2016, for a price higher than what is stated in the Agreement. The parties are in a dispute, however, as to whom the Deposit should be paid. Sillari relies upon § 26 of the Agreement giving him the right to terminate the Agreement if he cannot obtain financing and to teceive “forthwith” the refund of the Deposit. Plaintiff argues that {26 allows a refund upon termination only if the BUYER (Sillari) used “diligent efforts” to obtain financing. Plaintiffalleges that Sillari did not use diligent efforts. The summary judgment record is mixed as to these allegations. It is conceded by Sillari for purposes of this motion that he did not apply for financing in writing within 2 business days of the signing of the Agreement, but points to Rider B of the Agreement to argue that a written application was not required. Sillari explains, under oath, that he did timely apply verbally to his regular lender for financing. Plaintiff denies that what Sillari says he did constitutes “diligent efforts.” This dispute over “diligent efforts” and compliance with the Agreement raises issues of fact that carmot be resolved on summary judgment. There is a threshold issue, however, that determines the fate of the Deposit. The Agreement is unenforceable because the selling party to the Agreement, Elaine M. Leary, was deceased at the time the Agreement was entered into. The following facts are undisputed. Elaine M. Leary died on April 7, 2014, more than 15 months before the Agreement was signed. Nevertheless the Agreement states that “Elaine M. Leary, hereinafter called the SELLER, agrees to SELL .. ..” The Agreement goes on to impose certain obligations on the SELLER with respect to conveying the property. At page 7 of the Agreement, there is a signature over the line for “SELLER” that is indecipherable. Nowhere in the Agreement is there reference to Elaine M. Leary’s death, or to her estate, or to a personal representative of Elaine M. Leary acting in her behalf. At the time of entering into the Agreement, Sillari did not know that Elaine M. Leary was deceased. The Agreement was prepared by a lawyer, Cynthia F, Snow, acting for Clifford Leary. The record reflects that Clifford Leary was, under an Order for Informal Probate, appointed as personal representative of the estate of Elaine M. Leary on September 19, 2014. It was Snow,however, that conducted the negotiations with Sillari for the Agreement. After the execution of the Agreement, it was Snow who communicated with Sillari regarding extensions of the closing date and the date by which financing had to occur. There is nothing in the record to suggest that Sillari had any direct communications with Clifford Leary or that Sillari knew that Clifford Leary was the personal representative of the estate of Elaine M. Leary. In order to create an enforceable contract, both parties to the contract must have the capacity to enter into the contract. Restatement (Second) Contracts §12, Because Elaine M. Leary was deceased at the time of the Agreement, she, obviously, did not have the capacity to contract on that date. Assuming, for purposes of argument, that Clifford Leary, as personal representative of the estate of Elaine M. Leary, had the capacity and authority to contract for the sale of the property,' the stark fact is that Clifford Leary was not a party to the Agreement. He is nowhere mentioned in the Agreement, as the personal representative of Elaine M. Leary or in his own right. The Statute of Frauds, G.L. c. 259, § 1, mandates that “[nJo action may be brought... upon a contract for the sale of lands . . . [uJnless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.” The party to be charged under the terms of the Agreement was Elaine M. Leary. She did not sign the Agreement and, of course, she was not alive to have authorized Clifford Leary to sign on her behalf. The Agreement is, therefore, unenforceable. ' The record reflects that when the property was subsequently sold, the Purchase and Sale Agreement, dated November 6, 2015, identified Clifford Leary as the SELLER. 3CONCLUSION Plaintiff's complaint seeks relief in two counts: Count I for breach of contract and Count Il for violation of G.L. c. 93A. The premise of both counts is that there was an enforceable Agreement by which plaintiff was entitled to the Deposit. Defendant’s motion for summary judgment will be ALLOWED because the Agreement is unenforceable. As a result, it is hereby ORDERED that the escrow agent holding the Deposit pay the money to defendant, Charles Salliri. Plaintiff's complaint is DISMISSED. Defendant also moves for summary judgment in his favor on his counterclaims for fraud and intentional interference with contractual relations. Because those claims alleging intentional acts require a finding as to plaintifi’s state of mind, ] conclude that summary judgment is inappropriate. Accordingly, the cross-motions for summary judgment with respect to the counterclaims are DENIED. By the Court, Lard 8 Teherogey ~ Edward P. Leibensperger Justice of the Superior Court Date: June 19, 2018