Preview
COMMONWEALTH OF MASSACHUSETTS
SUPERIORABLECOU RT
BARNST ,
BARNSTABLE, bs SUPERIOR COURT
DOCKET NO. BACV2013-00125
Filed MAR 18 2017
bp Yikes Clerk
RICK YATSENIER-27JOAL YATSENICK
PLAINTIFFS
v,
OLD WHARF VILLAGE LLC, CHARLES
EDGAR, DAVID DILLON D/B/A AS
DILLON REAL ESTATE,
& STACEY CURLEY
DEFENDANTS
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AS TO ALL COUNTS
AGAINST DEFENDANTS OLD WHARF VILLAGE LLC AND CHARLES EDGAR
WITH SUPPORTING MEMORANDUM OF LAW
Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick in the above captioned action
by their attorney, Brian K. Galletta, Esquire, and respectfully moves this Honorable Court pursuant
to Mass. R. Civ. P. 56(c) to enter summary judgment in favor of the Plaintiffs and against
Defendants Old Wharf Village LLC (“Old Wharf”) and the Defendant Charles Edgar (“Edgar”) as
to all Counts contained within the Plaintiffs Complaint. In support, thereof the Plaintiffs state:
(1) That the Plaintiffs filed this action against Defendant Old Wharf claiming Breach of a
Contract, intentional misrepresentation or alternatively gross negligence
misrepresentation, violation of Mass. Gen L. ch 93A, and equitable relief for money had
and received and rescission;
(2) That the Plaintiffs further filed this action against Defendant Edgar claiming intentional
misrepresentation or alternatively gross negligence misrepresentation and violation of
Mass. Gen. L. ch. 93A,
The Plaintiffs contend that after the exhaustive discovery that they have done, that there are no
genuine issues of material fact in dispute as to any of the elements necessary to prove each of the
alleged Counts against Defendant Old Wharf and Defendant Edgar and that as a matter of law the
Plaintiffs move this Honorable Court to enter Judgment on each Count as set forth in the Plaintiffs
Verified Complaint.
In support thereof, the Plaintiffs proffer the following SUPPORTING MEMORANDUM
OF LAW as follows:
INTRODUCTION
The Plaintiffs sought to purchase a single-family year-round residential condominium to
eventually retire in, The Plaintiffs looked at Old Wharf Village Condominiums located at 405 Old
Wharf Road, Dennisport Massachusetts. The units at Old Wharf Village Condominiums were
represented both orally and in writing as being single family year-round residential condominiums
by Defendant Edgar who was the Developer and Manager for Defendant Old Wharf and the onsite
Real Estate agent for Defendant Old Wharf, David Dillion. Based on these representations by both
the Defendants and their agent, the Plaintiffs decided to purchased unit number 204 located at 405
Old Wharf Road, Dennisport, Massachusetts from the record owner, Old Wharf Village, LLC
signed by the Defendant Charles Edgar as a Principal for Old Wharf Village, LLC. A deed was
tendered to the Plaintiff that states that the unit is a “single family year-round residential
condominium” for $223,000.00. (Ex. 6, Unit Deed).
Approximately one year later in May of 2011, the Plaintiffs watched a Dennis Town
Planning Board meeting and learned that the unit was a motel room and the only zoning relief
granted by the Town of Dennis at the time they purchased the unit was for a commercial motel.
The Plaintiffs demanded their money back from Defendants Old Wharf and Edgar which was
refused. To this day, the unit is still zoned as commercial property and does not have zoning relief
to be a residential property that can be used year-round as a single-family dwelling.
After the Defendants refused to refund the Plaintiffs their money, the Plaintiffs sent a
demand letter pursuant to Mass. Gen. L. ch, 934 demanding their money back and out of pocket
costs. (See. Ex. 9) The Plaintiffs claimed that the Defendants knew or should have known that the
property was afforded no zoning relief to be used as single family year-round residential
condominiums and the only permitted use for the unit that the Defendants sold to the Plaintiffs
was for a commercial motel. The Defendants offered no relief in their response. (See Ex. 10).
The Plaintiffs filed this action alleging Breach of Contract, Intentional or gross negligent
misrepresentation, violation of the Consumer Protection Act, equitable relief for Rescission,
damages, costs, and reasonable attorney fees.
STATEMENT OF FACTS
a In February of 2010, the Plaintiff, Rick Yatsenick and Joal Yatsenick were looking to by a
retirement home and found out about condominiums being offered for sale at 405 Old Wharf
Village Road, in Dennisport, Massachusetts. The Seller was the Defendant Old Wharf Village
LLC and the Developer was Defendant Charles Edgar. The Plaintiffs met with Defendant Charles
Edgar and the now deceased David Dillion who was the exclusive real estate agent for the Old
ne Wharf Village project. Based on the written material and the representations made to the Plaintiffs
by the Defendants, the Defendants decided they might like to purchase one of the units for
$220,000.00. (See Exhibit 1, Defendants Marketing Brochure, Marketing Material and Multiple
Listing Sheet hereunto attached);
Q) The property has been a Motel dating back to the 1950’s. Defendant Edgar bought it out
of a foreclosure auction and transferred it to a company he formed, Old Wharf Village LLC. The
Defendants named the development Old Wharf Villages Condominiums. After the purchase,
Defendant Edgar claims to have acquired all the requisite Special Permits required to comply with
the Town of Dennis’ zoning by-laws. (See Exhibit 8, Defendant’s Answer to Interrogatories at
Number 15 hereunto attached). Defendant Edgar was the majority Principle of Old Wharf Village,
LLC, the Manager of Old Wharf Village LLC, the Developer of Old Wharf Village, LLC, and also
3
the Manager of Old Wharf Village Condominiums. (See Exhibit 2, Plaintiff's Verified Complaint
pg. 11 paragraph 36 and Defendants Answer admitting thereto in Paragraph 36) The Defendant,
Charles Edgar had a vested interest also as he had put his own money up in part for the development
and held a mortgage to the property. (See Exhibit 4, Deposition of Defendant Edgar pg. 48-49);
Defendant Old Wharf was also in the business of developing and selling real estate to Consumers.
(See Exhibit 4, Deposition of Defendant Edgar, pg. 72);
@) Based on the representations and warranties made by Defendants Old Wharf and Edgar,
the Plaintiffs entered into a Purchase and Sales Agreement to purchase unit 204 at Old Wharf
Village Condominiums, taking out a Mortgage on their home in Connecticut for the full purchase
price of $223,000.00 (See Exhibit 5, Parties Purchase and Sale Agreement);
6) The Plaintiffs closed on the property on June, 20, 2010 and received a deed from Old Wharf
Village LLC, stating in relevant part, that the “intended use of the Condominium was in fact “a
year-round residential single family condominium” and the deed was signed by Defendant Edgar.
(See Exhibit 6, Unit Deed signed by Defendant Edgar purporting to convey single family year-
round residential condominium unit 204 which in actuality was a motel room—Compare Exhibit
7, Town of Dennis 2009 Special Permit mandating use of property to a Motel hereunto attached);
(6) Approximately a year later the Plaintiffs watched a Town of Dennis town meeting on May
2, 2011, and discovered that Old Wharf Village Condominiums never sought the necessary zoning
~ telief to be used as year-round residential condominiums, but rather was a Commercial Motel. To
this date, Unit 204, Old Wharf Village Condominium, located at 405 Old Wharf Road only
permitted use of record by special permits is that of a commercial motel room; (See Exhibit 14,
DVD of Dennis Planning Board Meeting, May 2, 2011);
® That the Plaintiffs sought to rescind their purchase to no avail as the Defendants refused to
take back the unit and refund them their money. The Plaintiffs sent the Defendants Old Wharf and
Edgar demand letters pursuant to Mass. Gen. L. Ch. 93A on December 19, 2012. (See Exhibit 9,
Demand Letters) and both Defendants failed to make any offer. (See Exhibit 10, response letters
ftom Defendants Counsel); and subsequently the Plaintiffs filed the instant litigation via way of a
Verified Complaint on March 18, 2013);
%) That in March 31, 2011, Old Wharf’s Realtor, David Dillion applied for a special permit
with the Town of Dennis on behalf of Defendant Old Wharf Village to turn the use of the motel
into a Condo/Hotel (See Ex. 11);
(10) That the Town of Dennis defines a Condo/Hotel as a development where 50% of the units
are timeshares and 50% of the units are motel room pursuant to Mass Gen. Law ch. 140 sec. 12A
that must be kept in constant transition (See Ex. 12, Town of Dennis by-law §10-11 and Mass.
Gen. L. ch. 140 §12A,)
(11) That on May 2, 2011, almost a year after the Plaintiffs closed on their unit, the Defendant
Charles Edgar on behalf of the Defendant Old Wharf Village, LLC spoke at a hearing at the Town
of Dennis’ Planning Board seeking the Condo/Hotel Special Permit which the Town granted with
conditions. The Special Permit specifically stated that the Plaintiffs’ Unit #204 was to be kept as
a Motel that must be rented to transients at all times (See Ex. 13 Special Permit, May 2, 2011);
(12) _ That the town further conditioned that there must be an onsite manager’s unit to sign guests
in and out, disperse unit keys, collect taxes, and keep a guest register. (See Ex. 13 Special Permit,
May 2, 2011);
(13) That the Dennis Planning Board further conditioned that owners cannot rent their own units
and that all such rentals must be done through the onsite office as a condition of the Special Permit
(See Exhibit 14, Town of Dennis Planning Board meeting on DVD at time 34:30);
(4) That the Dennis Planning Board specifically told Defendant Edgar that he would have to
amend Old Wharf Villages Condominium’s Master Deed to a 183B form of ownership as a
condition of the Special Permit (See Exhibit 14, Town of Dennis Board meeting on DVD at time
35:34);
(15) That the Dennis Planning Board specifically told Defendant Edgar that the units at Old
Wharf Village would not be condominiums under the Special Permit, but rather
Hotel/Condominiums as a condition of the Special Permit (See Exhibit 14 Town of Dennis Board
meeting on DVD at 36:25);
(16) That the May 2, 2011 Special Permit sought by Defendant Old Wharf and Defendant Edgar
mandates that the Plaintiffs’ unit be used as a motel room and must be in constant transition with
lengths of stays no longer than 28 days. (Ex. 13). The Yatsenick could never reside in Unit 204.
Per the special permit’s conditions the Yatsenicks could not rent out the unit on their own.
Furthermore, the Yatsenicks could not sell whatever interest they had in this motel room as
Defendant Old Wharf Village never amended the Master Deed to conform to the conditions set
forth in the special permit with regards to changing the Master Deed to timeshare under Mass.
Gen. L. Ch, 183B thereby rendering the title to all the units at Old Wharf Village unmarketable.
The Defendants further failed to register Old Wharf Village Condominiums pursuant to the
Massachusetts Time Share Act. The inability to rent the unit out or to sell the unit defeated any
chance for the Yatsenicks to mitigate their damages. (See Exhibit 13, May 2, 2011 Special Permit
and Exhibit 14, DVD of Town Meeting setting forth conditions for the Special Permit);
(17) That despite the conditions imposed prohibiting unit owners from renting their units
privately, Defendant Old Wharf and Defendant Edgar refused to get involved in renting owner
units, maintaining an office to register guests. check in and out guests, disperse keys or to collect
sales tax pursuant to the May 2, 2011 Special Permit (See. Exhibit 15, Deposition of Defendant
Edgar pg. 34.)
(18) That in August of 2014, this Honorable Court in Old Wharf Village, LLC et al v. US
Alliance Federal Credit Union, Barnstable Sup. Ct. Docket Number CV 2011-622, found that the
Defendants never complied with the conditions of the Special Permit nor did they ever record the
May 2, 2011 Special permit and it effectively lapsed. The Court further found that the Plaintiffs’
Fay
deed to unit #204 was deficient in its failure to recite the motel restrictions. Id. at pg. 9 (See Exhibit
16 Deposition of Defendant Edgar at pg. 78 and pg. 9 of Court’s decision).
(9) That on June 1, 2015, without apprising the Plaintiffs or any of the other unit purchasers,
the Defendants sought zoning relief from the Town of Dennis again pursuant to the section 10-11
of the Dennis zoning by-laws to obtain another special permit for Old Wharf Village
Condominiums to operate as a Hotel/Condo. The Dennis Planning Board once again issued the
Special Permit mandating at least 50% of the units must be motel rooms at all times and the other
50% to be timeshares and mandated again that the Master Deed must be amended to set forth
various requirements of the operation of the Motel such as maintaining an office for the Public,
maid service, and other services that would be typically found in a hotel room. (See Ex. 17, Special
Permit June 1, 2015);
(20) The Defendants Old Wharf Village have to this date failed to amend the Master Deed or put
into place any of the mandates contained in the Special Permit therefore rendering the use of the
Plaintiffs unit to still nothing more than a motel room. (See Exhibit 18 Town of Dennis, Zoning
Board of Appeals Decision mandating that enforcement dates must be supplied to the Town
Building Inspector).
(21) That the Plaintiffs took the deposition of four purchasers of condominium units at Old
Wharf and all of them testified that they thought that they too had purchased single family
residential condominium units and had also been misrepresented to by the Defendants, Old Wharf
Village LLC and Charles Edgar and had no idea that they purchased into a commercial motel
venture, They further testified that they either wanted to retire and live in these units or simply
did not want to rent them out to the general public as a motel. (See Exhibit 19, Deposition
Transcript of Unit #201 Owner, Ronald F. Alleruzzo at pg. 81; Exhibit 20, Deposition Transcript
of Unit #103 Owner, Mark Y. Guess at pg. 17, Exhibit 21 Deposition Transcript of Unit #205
Owner, Mark Gorny at pgs. 8 and 48; Exhibit 22 Deposition Transcript of Unit #202 Owner Ann
Reilly at pg. 13).
(22) That the Plaintiffs took the deposition testimony of three Realtors who sold units at Old
Wharf Village Condominiums and thought that the units at Old Wharf Village were in fact single
family year around residential condominiums and not motels, timeshares or anything of a lesser
species. (See Exhibit 23 Deposition testimony of Realtor Alan Hunter at pg 120, Exhibit 24
Deposition testimony of Realtor Heather Miller at pgs. 18-19, Exhibit 25 Deposition testimony of
Steve Foley pgs. 24-25)
(23) That every lending institution that gave mortgages to unit owners at Old Wharf Village also
thought the units were single family year-round residential units. All the mortgages by the various
lenders specifically state that the units are to be used for single family residential purposes---not
any form of commercial motel, timeshare, or rental use. (See Exhibit 26 recorded Mortgages for
units 105, 202, and ironically even unit 101 owned by the Defendant Edgar personally).
THE STANDARD FOR SUMMARY JUDGMENT.
Summary judgment is appropriate when “there is no genuine issue as to any material fact
and ... the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c), as
amended, 436 Mass. 1404 (2002). A party moving for summary judgment who does not bear the
burden of proof at trial demonstrates the absence of a triable issue either by submitting affirmative
evidence negating an essential element of the nonmoving party's case or by showing that the
nonmoving party is unlikely to submit proof of that element at trial. See Kourouvacilis v. General
Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991); Flesner v. Technical Communications
Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991). The nonmoving party cannot defeat the
motion for summary judgment by resting on its pleadings and mere assertions of disputed facts.
L aLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989). “If the moving party establishes
the absence of a triable issue, the party opposing the motion must respond and allege specific facts
which would establish the existence of a genuine issue of material fact in order to defeat a motion
~
for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989).
- 2
COUNT IMFINTENTIONAL MISREPRESENTAION
OLD WHARF VILLAGE LLC & CHARLES EDGAR
In our Commonwealth, it is actionable fraud for one to represent, as true, a material fact which he
knows is false. Holst v. Stewart, 154 Mass. 445, 446, 28 N.E. 574, 575 (1891) It is equally tortious
to assert, as a fact of one's own knowledge, something which is false, though he believes it to be
true and has no intent to deceive. One who is reckless in ascertaining the truth or falsity of his
representation is in no better position than one who knows the falsity of his representation. One
who acts “ ‘with such willful disregard of the facts is tantamount to fraud’ ” and will be held liable
for their misrepresentations which were susceptible of actual knowledge. Kozdras v. Land/Vest
Properties, Inc., 382 Mass. 34, 41, 413 N.E.2d 1105, 1110 (1980), quoting State St. Bank & Trust
Co. v. Beale, 353 Mass. 103, 104, 227 N.E.2d 924, 925 (1967).
In the instant case Defendant Charles Edgar (“Edgar”) successfully bid at a foreclosure
auction to acquire the pre-existing Motel located at 405 Old Wharf Road, Dennisport,
Massachusetts. Edgar subsequently retained Counsel to form Old Wharf Village LLC where
Edgar was the majority principle shareholder of Old Wharf Village, LLC, the Manager of Old
Wharf Village LLC, the Developer of Old Wharf Village, LLC. Edgar subsequently had Counsel
register the Motel as a condominium pursuant to Mass. Gen. L. ch. 183A and Edgar also made
himself the Manager of what was to be called Old Wharf Village Condominiums. (Ex. 2),
Plaintiff's Verified Complaint pg. 11 paragraph 36 and Defendants Answer admitting thereto in
Paragraph 36 hereunto attached). For all relevant purposes, Old Wharf Village LLC was Edgar’s
alter ego.
Edgar freely admitted at his deposition that he knew that the property he acquired and
placed into a condominium form of ownership was zoned exclusively for Motel use. Edgar
furthermore admits that he thought that if he sold the motel rooms which he made into
condominium units, that they could be used freely by prospective consumers who purchased the
units for residential use. (See Ex. 29, Depo of Edgar). Edgar also admits that he had no idea how
his real estate agent he hired to sell the units marketed them (See Ex. 30) and that the use was a
“complicated issue” to the point that “Edgar himself did not exactly know what he was selling”
(See Ex. 33 Depo of Charles Edgar). Edgar also stated that he never discussed with his agent,
David Dillon how to market the units. (Ex. 31, Deposition of Charles Edgar). Despite these
admissions, Edgar marketed the property as single family residential units to consumers in the
normal course of business by himself and through his onsite project sales agent, David Dillon (Mr.
Dillon past away shortly after this litigation was filed). (See Ex. 1, Marketing Material, and Exhibit
19-22, Deposition testimony of one prior purchaser and 3 subsequent purchasers of units who all
thought that they were buying single family year-round residential condominiums due to
representations made by Edgar and his agent, Dillion in the normal course of business selling the
condominiums at Old Wharf Village---not a commercial motel venture).
Old Wharf and Edgar made material representations of fact of their own knowledge, which
were false, and even if they believed the representations to be true, and the Plaintiffs relied on
these representations to their detriment. The representations give rise to fraud. The material
representations are clearly documented in the record by, (1) the marketing material, (2) the
Defendants’ own admissions that he knew he owned a motel and he never fully understand what
he was selling as a developer in the normal course of business, and (3) the special permits on record
limiting the use of the property to that of a commercial motel and were readily ascertainable to
Edgar to read before he spoke, and (4) the Plaintiffs’ Deed clearly stating that the intended use of
the condominium unit was for “single family year round residential use” leave no genuine issues
of material fact in dispute and the Plaintiffs are entitled to judgment in their favor. In our
Commonwealth, if a statement concerns a fact which “is reasonably susceptible of actual
knowledge, or otherwise expressed, if, through a modicum of diligence, accurate facts are available
to the speaker,” the plaintiff need not prove that the speaker had actual knowledge of the falsity of
the statement. Zimmerman v. Kent, 31 Mass. App. Ct. 72, 575 N.E.2d 70 (1991). The Plaintiffs
were well within their rights to rely, not only on the written and oral representations as to the use
of the property by the Defendants, but also the Deed tendered by Edgar to the Plaintiffs that set
forth on its face to reaffirm these representations that intended use of the Plaintiffs unit was for a
single-family year-round residential condominium and not a commercial motel room that the
Plaintiffs cannot use as a permanent residence.
As a matter of law, Old Wharf and Edgar, intentionally and materially misrepresented the
use of the property to the Plaintiffs and the Plaintiffs suffered damages by buying a motel room
which they cannot use, rent, or sell and have been paying a mortgage, quarterly maintenance fees
and taxes on during the entire pendency of this litigation.
Wherefore the Plaintiffs respectfully request this Honorable Court to make findings and
tule that the Defendants’ actions and representation rise to the level of actionable misrepresentation
and the Plaintiffs be afforded an order of rescission, and award the Plaintiffs consequential
damages, out of pocket expenses, costs and reasonable attorney fees as set forth in the Plaintiffs’
affidavit.
COUNT I---VIOLATION OF MASS. GEN. L. CH. 934
OLD WHARF VILLAGE LLC & CHARLES EDGAR
a
As a Limited Liability Massachusetts Corporation and a Developer, Old Wharf Village
LLC and Edgar respectively are in the business of buying, developing, and selling to the public
developed real property within the meaning of Mass. Gen. L. Ch. 93A §1 et. al. and the Plaintiffs,
as buyers, are consumers within the meaning of Mass. Gen. L. Ch. 93A §1 et. al.
By Edgar’s own admissions, acting both individually and in his capacity as Manager and
Developer for Old Wharf Village LLC, Edgar knew or should have known that the property he
purchased and developed had no zoning relief other than to be a commercial motel and made
material false representations to induce the Plaintiffs to tender to him $220,000.00 in exchange for
a deed to a unit that is nothing more than a commercial motel room.
Edgar had actual knowledge and has admitted on the record that he: (1) originally acquired
a motel; (2) he knew that the real estate only permitted zoning use was a motel; and (3) that the
10
issue of use was “so complicated” that he did not even understand what he was selling because he
never took the time to read the special permits. Despite these facts, Edgar failed to inform the
Plaintiffs about any commercial motel venture that the Plaintiffs would be purchasing when in fact
the Plaintitfs thought they were buying year-round residential single family real estate as set forth
in the deed tendered to them by Old Wharf and signed by Edgar. This failure to inform the
Plaintiffs about the limitation of the use of the property to that of a commercial motel gives rise as
a matter of law to a violation of 940 Code Mass. Regs §3.16 which states:
“Without limiting the scope of any other rule, regulation, or statute, an act or practice is a
violation of Mass. Gen L. Ch. 934 §2 if any person or other legal entity subject to this act fails to
disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the
buyer or prospective buyer not to enter into the transaction” Id. at 940 Code Mass. Regs §3.16.
ee
~ Edgar and Old Wharf failed to disclose the material fact that the property was a commercial
motel enterprise regardless of whether there was a duty to disclose. As a developer and seller of
real property in the Commonwealth of Massachusetts, Edgar and Old Wharf had an affirmative
duty to clearly set forth to the Plairitiffs as consumers that the property was a commercial venture
versus residential property which Edgar and Old Wharf failed to do. See Sheehy v. Lipton Indus.
Inc. 24 Mass.App.Ct. 188, See also 940 Code Mass. Regs., §3.16(2). Edgar testified at his
deposition that he knew the property was operating under a motel license and the zoning could not
change the motel use but failed to disclose these material facts that would have influenced the
Plaintiffs not to purchase a “motel room” from the Edgar and Old Wharf as the Plaintiffs were in
the market for a single family year-round residential condominium to retire to. See also Schwartz
v. Rose, 418 Mass. 41, 45 (1994); York v. Sullivan, 369 Mass. 157, 162 (1975).
The Plaintiffs advanced demand letters to both Edgar and Old Wharf before filing the
instant litigation, seeking rescission and reasonable and foreseeable consequential damages and
out of pocket expenses. (See Exhibit 9). The Defendants made no reasonable offer of settlement
in violation of Mass. Gen. L. ch. 934 §9(3). Old Wharf and Edgar had an obligation to review the
facts and the law in response to the Plaintiffs’ demand letters. Heller v. Silverbranch Const. Corp.,
376 Mass 621, 627 (1978). Old Wharf and Edgar should have recognized that in light of the law
goveming c. 93A claims based on misrepresentation by omission, liability on its part, including
causation and damages, was at least highly likely. See Parker v. D’Avolio, 40 Mass.App. Ct. 394,
345 (1996). Old Wharf and Edgar’s response readily dismissing the Plaintiffs claims when they
knew that, at a very minimum that the Plaintiffs deed was clearly erroneous shows the fact that a
11
total lack of good faith has been established on the part of Old Wharf and Edgar. See. Patry v.
Harmany Homes, Inc., 10 Mass.App.Ct. 1,6 (1980). Edgar and Old Wharf allege that the Plaintiffs
deed was drafted in error and have filed suit against their now deceased Counsel, David Skiba
from Eastham. Edgar and Old Wharf allege a mistake by their Counsel in drafting the Plaintiffs
deed as a defense. Even arguendo if this was true, it would immediately trigger rescission as a
matter of law but no offer of any kind was proffered by Edgar or Old Wharf Village to the Plaintiffs
demand letters which gives rise to a bad faith settlement response. (See Docket, Paper #31, Motion
to Intervene the Estate of David Skiba filed by the Edgar and Old Wharf).
Old Wharf and Edgar take the position that no liability for misrepresentation should exist
here because they claim that the Plaintiffs had a duty to use their own due diligence and investigate
the zoning constraints. One difficulty with this argument is that under c. 934A, a plaintiff has no
affirmative duty to investigate or make inquiry to establish the truth of claims made by another,
and, therefore, in this case the Plaintiffs had no duty to investigate the veracity of the
representations of Edgar or Old Wharf and its agent realtor David Dillion. This is especially
applicable to vendors selling in the normal course of business within the Commonwealth of
Massachusetts. See, e.g., Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 466 (1975). See
also Sheehy v. Lipton Indus., Inc., supra, 24 Mass.App.Ct. at 195; Mongeau v. Boutelle, 10
Mass. App.Ct. 246, 248-49 (1980).
Edgar and Old Wharf rely on the fact that the Plaintiffs were represented by Counsel.
~~. While the Condominium Master Deed on page nine, recites one time the phrase “motel-
condominium”, the master deed is silent as to what exactly a “motel condominium” is and even if
Plaintiffs’ Counsel was negligent in not discovering the term, Edgar and Old Wharf cannot use
any implied negligence on the part of Plaintiffs’ Counsel to escape liability for their own misdeeds.
There is joint and several liabilities when the independent tortious conduct of each of two or more
persons causes indivisible harm which occurs consecutively. See Delicata v. Bourlesses, 9 Mass.
App. Ct. 713, 404 N.E.2d 667, 671-672 (1980) (“The established rule is that an injured party is
entitled to sue a tortfeasor for the full amount of damages for an indivisible injury that the
tortfeasor's wrongdoing was a substantial factor in causing, even if the concurrent tortious conduct
of others contributed to the incident.”); Com. v. Boston Edison Co., 444 Mass. 324, 327, 828
N.E.2d 16 (2005) (“Where joint and several liability applies, plaintiffs may recover their full
damages from any liable party subject to offset by recovery from any other tortfesor.”).
12
Wherefore the Plaintiffs respectfully request this Honorable Court to make findings and
tule that the Defendants, Charles Edgar and Old Wharf Village violated Mass Gen. L. Ch 93A by
(1) failing to disclose material facts to the Plaintiffs; (2) made material representations of fact of
their own knowledge, which were false to the Plaintiffs; and (3) proffered a bad faith settlement
response to the Plaintiff's, order rescission, award the Plaintiffs’ damages for their consequential
damages and out of pocket expenses as set forth in the Plaintiffs’ affidavit and treble or double the
damages and award attorney fees and costs pursuant to c. 93A §9(4).
COUNT DI—NEGLIGENT MISREPRESENTATION—
Old Wharf Village & Charles Edgar
A claim for negligent misrepresentation will stand if in the course of business, the
Defendants supplies false information for the guidance of others in their business transactions,
causing and resulting in pecuniary loss to others by their justifiable reliance on the information,
with failure to exercise reasonable care or competence in obtaining or communicating the
information. Fox v. F & J Gattozzi Corp., 41 Mass.App.Ct. 581, 587, 672 N.E.2d 547 (1996),
quoting Restatement (Second) of Torts § 552(1) (1977). Negligent misrepresentation may be
interwoven with intentional misrepresentation as well as c. 93A claims and differs from an action
for fraud because “liability for misrepresentation does not require a showing that the defendant
even knew that the statements made were false or that the defendant actually intended to deceive
the plaintiff.” Kitner v. CTW Transp., Inc., 53 Mass.App.Ct. 741, 749, 762 N.E.2d 867 (2002).
Negligent misrepresentation may be so extreme or egregious as to constitute a violation of G.L. c.
93A, §2, See Golber v. BayBank Valley Trust Co., 46 Mass.App.Ct. 256, 261, 704 N.E.2d 1191
(1999), quoting Glickman y. Brown, 2] Mass.App.Ct. 229, 235, 486 N.E.2d 737 (1985)
(negligent misrepresentation of fact the truth of which is reasonably capable of ascertainment is
an unfair and deceptive act or practice under G.L. c. 93A, § 2 [a]”).
After extensive discovery and due to the admissions made by Defendant Edgar both
individually and in his capacity as Manager of Old Wharf Village LLC during discovery with
regards to Edgars knowledge that he knew the Locus was a motel, the Plaintiffs, for the purposes
of this Summary Judgment contend that this case sounds in fraud and in violation of Mass. Gen.
L. Ch. 93A. In the instant case Edgar, has admitted he knew that the Locus was a motel, but he
choose to market the units by himself and through his agent, David Dillion as single family year-
13
round residential units. The Plaintiffs relied not only on the representations made to induce them
into purchasing their unit, but also relied on the use language enumerated within the deed the
Plaintiffs received from Old Wharf and executed by Edgar and the Plaintiffs contend that they
have met all the requisite elements for a claim of negligent misrepresentation as an alternate theory
of recovery and that of an action for intentional misrepresentation does not lie, than the Plaintiffs
contend that as a matter of law, the negligent misrepresentations were so gross in nature that they
give rise to a further claim pursuant to Mass. Gen. L. ch. 93A (2).
Wherefore the Plaintiffs respectfully request this Honorable Court to make findings and
tule that the Defendants’ actions and representation rise to the level of actionable gross negligent
misrepresentation as an alternate theory of recovery and the Plaintiffs be afforded an order
rescission, and award the Plaintiffs damages for their out of pocket expenses as set forth in the
Plaintiffs’ affidavit.
COUNT IV --THE BREACH OF CONTRACT—Old Wharf Village LLC
In order to prevail on a claim for breach of contract, a Plaintiff must demonstrate that there
was an agreement between the parties; the agreement was supported by consideration; the plaintiff
performed his or her part of the contract; the defendant committed a breach of the contract; and
the plaintiff suffered harm as a result. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 46 N.E.3d
24 (2016)
Sey In the instant case the Defendant, Old Wharf tendered to the Plaintiffs a deed to the Locus
that specifically states that the intended use of the Locus is for “single family year-round
residential purposes”. The Locus is not afforded the requisite zoning to ever be used for single
family year-round residential use. Old Wharf, being in the business of developing real estate to
consumers, either knew or should have known that the only zoning relief afforded was for the
property to be used as a motel. The special permits in full force and effect at the time of the
Plaintiffs’ purchase in June of 2010 mandated that the use be limited to a commercial motel.
(Exhibit 7). The Defendant Old Wharf’s failure to tender a deed that conforms with the special
permits of the town of Dennis, the town of Dennis’ by-laws, and that does not comport with the
use in which the Defendants marketed the Locus to the Plaintiffs and in which the Plaintiffs relied
upon constitutes a material breach of the contract by Defendant Old Wharf.
4
The Plaintiffs have a right to rely on Defendant Old Wharf’s express covenants in the
Plaintiffs’ deed. While the doctrine that acceptance of a deed ordinarily merges and discharges all
obligations in the purchase and sale agreement, there is no merger or discharge for covenants
expressly specified in a deed, Sumner v. Williams 8 Mass. 162 (1862), Gates v. Caldwell, 7 Mass.
68 (1810).
Old Wharf’s claims of a mistake by their attorney, David Skiba (who is now deceased) for
including the language “single family year-round residential use” in the deed is not supported
anywhere by the evidence that has been produced in discovery. The evidence shows that all the
units at Old Wharf Village Condominiums were marketed in the normal course of business, both
orally and in writing by Old Wharf’s real estate agent, David Dillion and Defendant Edgar as single
family year-round residential condominiums. Exhaustive discovery by the Plaintiffs showed that
wa
Realtors, Buyers, Bank Attorneys, Bank Appraisers, all’came to the same conclusion that the
permitted use of the units where single family year-round residential units based on the how
Defendants Old Wharf Village and Edgar held the property out to the general public at large.
The Plaintiffs deposed three realtors who testified that they showed the Locus and had no
idea that it was a motel. All three seasoned Realtors thought the units were single family year-
round residential condominiums based on what was represented to them. (See Deposition
Testimony of Realtor Alan Hunter, (Ex 23), Deposition Testimony of Realtor Heather Miller, (Ex,
24), and Deposition testimony of Realtor Stephen Foley (Ex. 25).
The Plaintiffs further deposed four other purchasers of units Old Wharf Villages
~ Condominiums, one that bought two months prior to the Plaintiffs and the other three who bought
subsequently shortly thereafter within 12 to 18 months. Each and every one of these purchasers
all testified that they also thought that they purchased single family year-round residential
condominiums---not motel or timeshare units. (Ex. 19 Deposition of Ronald Alleruzzo; Ex. 20
Deposition of Mark Guess; Ex.21 Deposition of Mark Gorny, Ex. 22 Depo of Ann Reilly). These
purchasers all testified that they never would have purchased their respective units if they had
known that they were anything less than single family year-round residential units.
The Plaintiffs have shown that no genuine issues of material fact exist with regards to
Count I for breach of contract against Defendant Old Wharf where: (1) there was a purchase and
sales agreement entered into by the parties to buy the Locus; (2) the Plaintiffs performed by
a5
tendering to Old Wharf the purchase price in cash and; (3) the Defendants tendered a deed that
recited the use of the Locus was for single family year round purposes; (4) the Plaintiffs accepted
the deed as the use set forth within the deed is exactly what was represented to the Plaintiffs in
writing by Defendant’s Old Wharf and Edgar and; (5) the Defendant Old Wharf breached the terms
set forth in the deed as the deed failed to convey real property that allows for single family year
residential use and the Locus is nothing more than a commercial motel room.
Wherefore the Plaintiffs respectfully request this Honorable Court to make findings and
rule that the Defendants breached the contract with the Plaintiffs, order rescission, and award the
Plaintiffs consequential damages, out of pocket expenses, costs, and reasonable attorney fees as
set forth in the Plaintiffs’ affidavit.
COUNT V-- MONEY HAD AND RECIVED AND COUNT VI— RESCISSION
OLD WHARF VILLAGE LLC
The two remaining Counts are equitable in nature. First the Plaintiffs seeks the
return of the $220,000.00 dollars that they gave to Old Wharf Village. “When in equity and good
conscience, one has property without right that ought to go to another, he cannot retain it. In such
case the action is not on the express ultra vires contract, but on an implied contract to return or
make compensation for property or money that one has no right to retain.” M. McDonough Corp.
vy. Connolly, 313 Mass. 62, 46 N.E.2d 576 (1943), and cases cited therein. The Plaintiffs received
a deed from Old Wharf that did not transfer any tangible interest in the property as the property
. ~ had no zoning relief other than to be one singular motel. The “unit” conveyed to the Plaintiffs was
for nothing more than a mere interest in the commercial motel. It did not enjoy the benefits of
exclusive elements of a condominium pursuant to Mass. Gen. L. Ch. 183A as the unit must be
open to transit use and who ever stays there must pay a rooms tax pursuant to Mass Gen. L. ch.
140 12A.
The deed tendered to the Plaintiffs by Old Wharf contains an express covenant that the
Unit intended use be a single family year-round residential property when in fact the special
permits strictly forbid any single family year-round residential use. As such Old Wharf, cannot
cure this defect with regards to the use provision and the Plaintiffs never received the benefit of
the bargain for the money the Plaintiffs tendered to the Defendant. Equity demands the return of
the money had and received by Old Wharf back to the Plaintiffs.
16
For the same reason as set forth supra, equity also requires rescission. Rescission is a
remedy of an equitable nature which allows a party to a contract to undo or abrogate it for a legally
sufficient reason and which returns the parties to their precontractual positions. It is regarded as
synonymous with “cancellation of a written instrument,” and is a remedy granted in the discretion
of a court of equity for the purpose of annulling a contract and rendering it as though it did not
exist. “In this Commonwealth one who has been induced to enter into a contract in reliance upon
a false representation of a material fact susceptible of knowledge which was made as of the party's
own knowledge and was stated as a fact and not as a matter of opinion is entitled to rescission.”
Yorke v. Taylor, 332 Mass. 368, 371, 124 N.E.2d 912, 914 (1955). Rescission of a contract to
purchase realty on the ground that the sellers' advertising of the property for multi-family
residential use was a fraudulent representation in the nature of a half-truth because sellers knew
property was being used in violation of zoning ordinance. Kannavos v. Annino, 356 Mass. 42, 49-
50, 247 N.E.2d 708, 712-713 (1969).
In the instant case Old Wharf, freely admitted it knew the Locus was constrained to being
used only as motel. The fact that it changed the form of ownership to a condominium by filing the
documentation pursuant to Mass. Gen. L. Ch. 183A does not change the zoning relief by the town
of Dennis with regards to the permitted use. The Plaintiffs cannot reside there, nor stay there for
that matter. Mass. Gen. Ch. 140 12A mandates that all motel rooms be “held out to the general
public at all times for transient use. It would be hard to imagine an action more viable to apply
the equitable principles of rescission then in the instant case.
Wherefore the Plaintiffs pray to the Honorable Court to make findings and rule that there
are no genuine issues of material fact in dispute and as a matter of law the Plaintiffs are entitled
the equitable remedies afforded by the Counts of Money Had and Received and Rescission. The
Plaintiff requests this Honorable Court to undo and abrogate the exchange of the Plaintiffs
$220,000.00 and return the parties to their precontractual positions.
THE PLAINTIFFS’ INABILITY TO MITIGATE THEIR DAMAGES
At the time the Plaintiffs purchased the unit from the Defendants in June of 2010, the only
zoning relief afforded for the use of these units is a motel (Ex. 7. Special Permit A-1447 dated
March 24, 2009. R.A. pg. A-40 contained in findings and conditions). After the Defendants made
application, in May of 2011 the property was afforded a special permit that once again specifically
limited the use of the Plaintiffs’ unit to again that of “a motel that must be kept in constant
17
‘
transition”.(Ex. 11, at bullet #4) See Mass. Gen L. ch. 140 § 12A, Motel rooms are a place where
sleeping or housekeeping accommodations are supplied for paying guests for transient occupancy.
Id.) The Town of Dennis subsequently found the Defendants never accepted the conditions of the
2011-5 special permit and it was revoked thereby resurrecting the 2009 Special Permit A-1447
which again afforded only motel use to the Plaintiffs’ unit. On June 1. 2015 the Defendants once
again applied for a special permit to operate the development as a commercial motel condominium
where 50% of the units must be kept in constant transition at all times. The Town again placed
numerous conditions on the special permit mandating that the Master Deed be amended and an
office be maintained and further mandated that the Master Deed be amended to use “Plain
Language” as the Town was aware that the development could not be held out as anything other
than that of a commercial motel condominium. (Ex. 17 Special Permit). To date none of the
we
conditions of this special permit have been met. The unit is still a motel and the 2015 special
permit, like the 2011 special permit has not been incorporated in the master deed rendering the
title defective for any possible sale. 1) the Plaintiffs could not use the property as it was a motel
(2) could not rent the unit themselves as these units were not individual motels, but rather rooms
in a Motel that operate under one motel permit; and 3) the Plaintiffs could not sell it as it has no
value until there is proper zoning relief. As is the case here, an individual can hold clear title to a
parcel of land, although the same parcel is valueless because of some restriction or regulation on
its use. Chicago Title Ins. Co. v. Kumar, 24 Mass.App.Ct. 53, 56-57, 506 N.E.2d 154 (1987).
Contrary to the Defendants contention, the Plaintiffs need not wait for a notice of violation by not
—
adhering to the zoning Jaws currently in place that foreclose the possibility of mitigation. Under
M.G.L.A. c. 40A, § 2, property owners are bound by the zoning by-laws and ordinances which
towns and cities may pass. This is the very reason, as part of their relief the Plaintiffs have prayed
for rescission. The Law simply does not mandate that the Plaintiffs become motel operators due
to the misgivings of the Defendants.
CONCLUSION
WHEREFORE, the Plaintiffs, Rick Yatsnick and Joal Yatsenick, respectfully request this
Honorable Court to make finding of fact and rule that there are no genuine issues of material facts
in dispute and as a matter of law the Plaintiffs are entitled to a Judgment to enter in their favor for
the relief prayed for in each of the Counts advanced against the Defendants Old Wharf Village and
18
. ve
Charles Edgar within their Verified Complaint and advanced in this Motion for Summary
Judgment.
Respectfully submitte
co
Brian K. Galle
B.B.O. #566078
Attorney for the Plaintiffs/Appellees
Rick Yatsenick and Joal Yatsenick
25 Lady Slipper Drive
Plymouth, MA 02360
Preview
COMMONWEALTH OF MASSACHUSETTS SUPERIORABLECOU RT BARNST , BARNSTABLE, bs SUPERIOR COURT DOCKET NO. BACV2013-00125 Filed MAR 18 2017 bp Yikes Clerk RICK YATSENIER-27JOAL YATSENICK PLAINTIFFS v, OLD WHARF VILLAGE LLC, CHARLES EDGAR, DAVID DILLON D/B/A AS DILLON REAL ESTATE, & STACEY CURLEY DEFENDANTS PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AS TO ALL COUNTS AGAINST DEFENDANTS OLD WHARF VILLAGE LLC AND CHARLES EDGAR WITH SUPPORTING MEMORANDUM OF LAW Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick in the above captioned action by their attorney, Brian K. Galletta, Esquire, and respectfully moves this Honorable Court pursuant to Mass. R. Civ. P. 56(c) to enter summary judgment in favor of the Plaintiffs and against Defendants Old Wharf Village LLC (“Old Wharf”) and the Defendant Charles Edgar (“Edgar”) as to all Counts contained within the Plaintiffs Complaint. In support, thereof the Plaintiffs state: (1) That the Plaintiffs filed this action against Defendant Old Wharf claiming Breach of a Contract, intentional misrepresentation or alternatively gross negligence misrepresentation, violation of Mass. Gen L. ch 93A, and equitable relief for money had and received and rescission; (2) That the Plaintiffs further filed this action against Defendant Edgar claiming intentional misrepresentation or alternatively gross negligence misrepresentation and violation of Mass. Gen. L. ch. 93A, The Plaintiffs contend that after the exhaustive discovery that they have done, that there are no genuine issues of material fact in dispute as to any of the elements necessary to prove each of the alleged Counts against Defendant Old Wharf and Defendant Edgar and that as a matter of law the Plaintiffs move this Honorable Court to enter Judgment on each Count as set forth in the Plaintiffs Verified Complaint. In support thereof, the Plaintiffs proffer the following SUPPORTING MEMORANDUM OF LAW as follows: INTRODUCTION The Plaintiffs sought to purchase a single-family year-round residential condominium to eventually retire in, The Plaintiffs looked at Old Wharf Village Condominiums located at 405 Old Wharf Road, Dennisport Massachusetts. The units at Old Wharf Village Condominiums were represented both orally and in writing as being single family year-round residential condominiums by Defendant Edgar who was the Developer and Manager for Defendant Old Wharf and the onsite Real Estate agent for Defendant Old Wharf, David Dillion. Based on these representations by both the Defendants and their agent, the Plaintiffs decided to purchased unit number 204 located at 405 Old Wharf Road, Dennisport, Massachusetts from the record owner, Old Wharf Village, LLC signed by the Defendant Charles Edgar as a Principal for Old Wharf Village, LLC. A deed was tendered to the Plaintiff that states that the unit is a “single family year-round residential condominium” for $223,000.00. (Ex. 6, Unit Deed). Approximately one year later in May of 2011, the Plaintiffs watched a Dennis Town Planning Board meeting and learned that the unit was a motel room and the only zoning relief granted by the Town of Dennis at the time they purchased the unit was for a commercial motel. The Plaintiffs demanded their money back from Defendants Old Wharf and Edgar which was refused. To this day, the unit is still zoned as commercial property and does not have zoning relief to be a residential property that can be used year-round as a single-family dwelling. After the Defendants refused to refund the Plaintiffs their money, the Plaintiffs sent a demand letter pursuant to Mass. Gen. L. ch, 934 demanding their money back and out of pocket costs. (See. Ex. 9) The Plaintiffs claimed that the Defendants knew or should have known that the property was afforded no zoning relief to be used as single family year-round residential condominiums and the only permitted use for the unit that the Defendants sold to the Plaintiffs was for a commercial motel. The Defendants offered no relief in their response. (See Ex. 10). The Plaintiffs filed this action alleging Breach of Contract, Intentional or gross negligent misrepresentation, violation of the Consumer Protection Act, equitable relief for Rescission, damages, costs, and reasonable attorney fees. STATEMENT OF FACTS a In February of 2010, the Plaintiff, Rick Yatsenick and Joal Yatsenick were looking to by a retirement home and found out about condominiums being offered for sale at 405 Old Wharf Village Road, in Dennisport, Massachusetts. The Seller was the Defendant Old Wharf Village LLC and the Developer was Defendant Charles Edgar. The Plaintiffs met with Defendant Charles Edgar and the now deceased David Dillion who was the exclusive real estate agent for the Old ne Wharf Village project. Based on the written material and the representations made to the Plaintiffs by the Defendants, the Defendants decided they might like to purchase one of the units for $220,000.00. (See Exhibit 1, Defendants Marketing Brochure, Marketing Material and Multiple Listing Sheet hereunto attached); Q) The property has been a Motel dating back to the 1950’s. Defendant Edgar bought it out of a foreclosure auction and transferred it to a company he formed, Old Wharf Village LLC. The Defendants named the development Old Wharf Villages Condominiums. After the purchase, Defendant Edgar claims to have acquired all the requisite Special Permits required to comply with the Town of Dennis’ zoning by-laws. (See Exhibit 8, Defendant’s Answer to Interrogatories at Number 15 hereunto attached). Defendant Edgar was the majority Principle of Old Wharf Village, LLC, the Manager of Old Wharf Village LLC, the Developer of Old Wharf Village, LLC, and also 3 the Manager of Old Wharf Village Condominiums. (See Exhibit 2, Plaintiff's Verified Complaint pg. 11 paragraph 36 and Defendants Answer admitting thereto in Paragraph 36) The Defendant, Charles Edgar had a vested interest also as he had put his own money up in part for the development and held a mortgage to the property. (See Exhibit 4, Deposition of Defendant Edgar pg. 48-49); Defendant Old Wharf was also in the business of developing and selling real estate to Consumers. (See Exhibit 4, Deposition of Defendant Edgar, pg. 72); @) Based on the representations and warranties made by Defendants Old Wharf and Edgar, the Plaintiffs entered into a Purchase and Sales Agreement to purchase unit 204 at Old Wharf Village Condominiums, taking out a Mortgage on their home in Connecticut for the full purchase price of $223,000.00 (See Exhibit 5, Parties Purchase and Sale Agreement); 6) The Plaintiffs closed on the property on June, 20, 2010 and received a deed from Old Wharf Village LLC, stating in relevant part, that the “intended use of the Condominium was in fact “a year-round residential single family condominium” and the deed was signed by Defendant Edgar. (See Exhibit 6, Unit Deed signed by Defendant Edgar purporting to convey single family year- round residential condominium unit 204 which in actuality was a motel room—Compare Exhibit 7, Town of Dennis 2009 Special Permit mandating use of property to a Motel hereunto attached); (6) Approximately a year later the Plaintiffs watched a Town of Dennis town meeting on May 2, 2011, and discovered that Old Wharf Village Condominiums never sought the necessary zoning ~ telief to be used as year-round residential condominiums, but rather was a Commercial Motel. To this date, Unit 204, Old Wharf Village Condominium, located at 405 Old Wharf Road only permitted use of record by special permits is that of a commercial motel room; (See Exhibit 14, DVD of Dennis Planning Board Meeting, May 2, 2011); ® That the Plaintiffs sought to rescind their purchase to no avail as the Defendants refused to take back the unit and refund them their money. The Plaintiffs sent the Defendants Old Wharf and Edgar demand letters pursuant to Mass. Gen. L. Ch. 93A on December 19, 2012. (See Exhibit 9, Demand Letters) and both Defendants failed to make any offer. (See Exhibit 10, response letters ftom Defendants Counsel); and subsequently the Plaintiffs filed the instant litigation via way of a Verified Complaint on March 18, 2013); %) That in March 31, 2011, Old Wharf’s Realtor, David Dillion applied for a special permit with the Town of Dennis on behalf of Defendant Old Wharf Village to turn the use of the motel into a Condo/Hotel (See Ex. 11); (10) That the Town of Dennis defines a Condo/Hotel as a development where 50% of the units are timeshares and 50% of the units are motel room pursuant to Mass Gen. Law ch. 140 sec. 12A that must be kept in constant transition (See Ex. 12, Town of Dennis by-law §10-11 and Mass. Gen. L. ch. 140 §12A,) (11) That on May 2, 2011, almost a year after the Plaintiffs closed on their unit, the Defendant Charles Edgar on behalf of the Defendant Old Wharf Village, LLC spoke at a hearing at the Town of Dennis’ Planning Board seeking the Condo/Hotel Special Permit which the Town granted with conditions. The Special Permit specifically stated that the Plaintiffs’ Unit #204 was to be kept as a Motel that must be rented to transients at all times (See Ex. 13 Special Permit, May 2, 2011); (12) _ That the town further conditioned that there must be an onsite manager’s unit to sign guests in and out, disperse unit keys, collect taxes, and keep a guest register. (See Ex. 13 Special Permit, May 2, 2011); (13) That the Dennis Planning Board further conditioned that owners cannot rent their own units and that all such rentals must be done through the onsite office as a condition of the Special Permit (See Exhibit 14, Town of Dennis Planning Board meeting on DVD at time 34:30); (4) That the Dennis Planning Board specifically told Defendant Edgar that he would have to amend Old Wharf Villages Condominium’s Master Deed to a 183B form of ownership as a condition of the Special Permit (See Exhibit 14, Town of Dennis Board meeting on DVD at time 35:34); (15) That the Dennis Planning Board specifically told Defendant Edgar that the units at Old Wharf Village would not be condominiums under the Special Permit, but rather Hotel/Condominiums as a condition of the Special Permit (See Exhibit 14 Town of Dennis Board meeting on DVD at 36:25); (16) That the May 2, 2011 Special Permit sought by Defendant Old Wharf and Defendant Edgar mandates that the Plaintiffs’ unit be used as a motel room and must be in constant transition with lengths of stays no longer than 28 days. (Ex. 13). The Yatsenick could never reside in Unit 204. Per the special permit’s conditions the Yatsenicks could not rent out the unit on their own. Furthermore, the Yatsenicks could not sell whatever interest they had in this motel room as Defendant Old Wharf Village never amended the Master Deed to conform to the conditions set forth in the special permit with regards to changing the Master Deed to timeshare under Mass. Gen. L. Ch, 183B thereby rendering the title to all the units at Old Wharf Village unmarketable. The Defendants further failed to register Old Wharf Village Condominiums pursuant to the Massachusetts Time Share Act. The inability to rent the unit out or to sell the unit defeated any chance for the Yatsenicks to mitigate their damages. (See Exhibit 13, May 2, 2011 Special Permit and Exhibit 14, DVD of Town Meeting setting forth conditions for the Special Permit); (17) That despite the conditions imposed prohibiting unit owners from renting their units privately, Defendant Old Wharf and Defendant Edgar refused to get involved in renting owner units, maintaining an office to register guests. check in and out guests, disperse keys or to collect sales tax pursuant to the May 2, 2011 Special Permit (See. Exhibit 15, Deposition of Defendant Edgar pg. 34.) (18) That in August of 2014, this Honorable Court in Old Wharf Village, LLC et al v. US Alliance Federal Credit Union, Barnstable Sup. Ct. Docket Number CV 2011-622, found that the Defendants never complied with the conditions of the Special Permit nor did they ever record the May 2, 2011 Special permit and it effectively lapsed. The Court further found that the Plaintiffs’ Fay deed to unit #204 was deficient in its failure to recite the motel restrictions. Id. at pg. 9 (See Exhibit 16 Deposition of Defendant Edgar at pg. 78 and pg. 9 of Court’s decision). (9) That on June 1, 2015, without apprising the Plaintiffs or any of the other unit purchasers, the Defendants sought zoning relief from the Town of Dennis again pursuant to the section 10-11 of the Dennis zoning by-laws to obtain another special permit for Old Wharf Village Condominiums to operate as a Hotel/Condo. The Dennis Planning Board once again issued the Special Permit mandating at least 50% of the units must be motel rooms at all times and the other 50% to be timeshares and mandated again that the Master Deed must be amended to set forth various requirements of the operation of the Motel such as maintaining an office for the Public, maid service, and other services that would be typically found in a hotel room. (See Ex. 17, Special Permit June 1, 2015); (20) The Defendants Old Wharf Village have to this date failed to amend the Master Deed or put into place any of the mandates contained in the Special Permit therefore rendering the use of the Plaintiffs unit to still nothing more than a motel room. (See Exhibit 18 Town of Dennis, Zoning Board of Appeals Decision mandating that enforcement dates must be supplied to the Town Building Inspector). (21) That the Plaintiffs took the deposition of four purchasers of condominium units at Old Wharf and all of them testified that they thought that they too had purchased single family residential condominium units and had also been misrepresented to by the Defendants, Old Wharf Village LLC and Charles Edgar and had no idea that they purchased into a commercial motel venture, They further testified that they either wanted to retire and live in these units or simply did not want to rent them out to the general public as a motel. (See Exhibit 19, Deposition Transcript of Unit #201 Owner, Ronald F. Alleruzzo at pg. 81; Exhibit 20, Deposition Transcript of Unit #103 Owner, Mark Y. Guess at pg. 17, Exhibit 21 Deposition Transcript of Unit #205 Owner, Mark Gorny at pgs. 8 and 48; Exhibit 22 Deposition Transcript of Unit #202 Owner Ann Reilly at pg. 13). (22) That the Plaintiffs took the deposition testimony of three Realtors who sold units at Old Wharf Village Condominiums and thought that the units at Old Wharf Village were in fact single family year around residential condominiums and not motels, timeshares or anything of a lesser species. (See Exhibit 23 Deposition testimony of Realtor Alan Hunter at pg 120, Exhibit 24 Deposition testimony of Realtor Heather Miller at pgs. 18-19, Exhibit 25 Deposition testimony of Steve Foley pgs. 24-25) (23) That every lending institution that gave mortgages to unit owners at Old Wharf Village also thought the units were single family year-round residential units. All the mortgages by the various lenders specifically state that the units are to be used for single family residential purposes---not any form of commercial motel, timeshare, or rental use. (See Exhibit 26 recorded Mortgages for units 105, 202, and ironically even unit 101 owned by the Defendant Edgar personally). THE STANDARD FOR SUMMARY JUDGMENT. Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). A party moving for summary judgment who does not bear the burden of proof at trial demonstrates the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party is unlikely to submit proof of that element at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991); Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991). The nonmoving party cannot defeat the motion for summary judgment by resting on its pleadings and mere assertions of disputed facts. L aLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion ~ for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). - 2 COUNT IMFINTENTIONAL MISREPRESENTAION OLD WHARF VILLAGE LLC & CHARLES EDGAR In our Commonwealth, it is actionable fraud for one to represent, as true, a material fact which he knows is false. Holst v. Stewart, 154 Mass. 445, 446, 28 N.E. 574, 575 (1891) It is equally tortious to assert, as a fact of one's own knowledge, something which is false, though he believes it to be true and has no intent to deceive. One who is reckless in ascertaining the truth or falsity of his representation is in no better position than one who knows the falsity of his representation. One who acts “ ‘with such willful disregard of the facts is tantamount to fraud’ ” and will be held liable for their misrepresentations which were susceptible of actual knowledge. Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 41, 413 N.E.2d 1105, 1110 (1980), quoting State St. Bank & Trust Co. v. Beale, 353 Mass. 103, 104, 227 N.E.2d 924, 925 (1967). In the instant case Defendant Charles Edgar (“Edgar”) successfully bid at a foreclosure auction to acquire the pre-existing Motel located at 405 Old Wharf Road, Dennisport, Massachusetts. Edgar subsequently retained Counsel to form Old Wharf Village LLC where Edgar was the majority principle shareholder of Old Wharf Village, LLC, the Manager of Old Wharf Village LLC, the Developer of Old Wharf Village, LLC. Edgar subsequently had Counsel register the Motel as a condominium pursuant to Mass. Gen. L. ch. 183A and Edgar also made himself the Manager of what was to be called Old Wharf Village Condominiums. (Ex. 2), Plaintiff's Verified Complaint pg. 11 paragraph 36 and Defendants Answer admitting thereto in Paragraph 36 hereunto attached). For all relevant purposes, Old Wharf Village LLC was Edgar’s alter ego. Edgar freely admitted at his deposition that he knew that the property he acquired and placed into a condominium form of ownership was zoned exclusively for Motel use. Edgar furthermore admits that he thought that if he sold the motel rooms which he made into condominium units, that they could be used freely by prospective consumers who purchased the units for residential use. (See Ex. 29, Depo of Edgar). Edgar also admits that he had no idea how his real estate agent he hired to sell the units marketed them (See Ex. 30) and that the use was a “complicated issue” to the point that “Edgar himself did not exactly know what he was selling” (See Ex. 33 Depo of Charles Edgar). Edgar also stated that he never discussed with his agent, David Dillon how to market the units. (Ex. 31, Deposition of Charles Edgar). Despite these admissions, Edgar marketed the property as single family residential units to consumers in the normal course of business by himself and through his onsite project sales agent, David Dillon (Mr. Dillon past away shortly after this litigation was filed). (See Ex. 1, Marketing Material, and Exhibit 19-22, Deposition testimony of one prior purchaser and 3 subsequent purchasers of units who all thought that they were buying single family year-round residential condominiums due to representations made by Edgar and his agent, Dillion in the normal course of business selling the condominiums at Old Wharf Village---not a commercial motel venture). Old Wharf and Edgar made material representations of fact of their own knowledge, which were false, and even if they believed the representations to be true, and the Plaintiffs relied on these representations to their detriment. The representations give rise to fraud. The material representations are clearly documented in the record by, (1) the marketing material, (2) the Defendants’ own admissions that he knew he owned a motel and he never fully understand what he was selling as a developer in the normal course of business, and (3) the special permits on record limiting the use of the property to that of a commercial motel and were readily ascertainable to Edgar to read before he spoke, and (4) the Plaintiffs’ Deed clearly stating that the intended use of the condominium unit was for “single family year round residential use” leave no genuine issues of material fact in dispute and the Plaintiffs are entitled to judgment in their favor. In our Commonwealth, if a statement concerns a fact which “is reasonably susceptible of actual knowledge, or otherwise expressed, if, through a modicum of diligence, accurate facts are available to the speaker,” the plaintiff need not prove that the speaker had actual knowledge of the falsity of the statement. Zimmerman v. Kent, 31 Mass. App. Ct. 72, 575 N.E.2d 70 (1991). The Plaintiffs were well within their rights to rely, not only on the written and oral representations as to the use of the property by the Defendants, but also the Deed tendered by Edgar to the Plaintiffs that set forth on its face to reaffirm these representations that intended use of the Plaintiffs unit was for a single-family year-round residential condominium and not a commercial motel room that the Plaintiffs cannot use as a permanent residence. As a matter of law, Old Wharf and Edgar, intentionally and materially misrepresented the use of the property to the Plaintiffs and the Plaintiffs suffered damages by buying a motel room which they cannot use, rent, or sell and have been paying a mortgage, quarterly maintenance fees and taxes on during the entire pendency of this litigation. Wherefore the Plaintiffs respectfully request this Honorable Court to make findings and tule that the Defendants’ actions and representation rise to the level of actionable misrepresentation and the Plaintiffs be afforded an order of rescission, and award the Plaintiffs consequential damages, out of pocket expenses, costs and reasonable attorney fees as set forth in the Plaintiffs’ affidavit. COUNT I---VIOLATION OF MASS. GEN. L. CH. 934 OLD WHARF VILLAGE LLC & CHARLES EDGAR a As a Limited Liability Massachusetts Corporation and a Developer, Old Wharf Village LLC and Edgar respectively are in the business of buying, developing, and selling to the public developed real property within the meaning of Mass. Gen. L. Ch. 93A §1 et. al. and the Plaintiffs, as buyers, are consumers within the meaning of Mass. Gen. L. Ch. 93A §1 et. al. By Edgar’s own admissions, acting both individually and in his capacity as Manager and Developer for Old Wharf Village LLC, Edgar knew or should have known that the property he purchased and developed had no zoning relief other than to be a commercial motel and made material false representations to induce the Plaintiffs to tender to him $220,000.00 in exchange for a deed to a unit that is nothing more than a commercial motel room. Edgar had actual knowledge and has admitted on the record that he: (1) originally acquired a motel; (2) he knew that the real estate only permitted zoning use was a motel; and (3) that the 10 issue of use was “so complicated” that he did not even understand what he was selling because he never took the time to read the special permits. Despite these facts, Edgar failed to inform the Plaintiffs about any commercial motel venture that the Plaintiffs would be purchasing when in fact the Plaintitfs thought they were buying year-round residential single family real estate as set forth in the deed tendered to them by Old Wharf and signed by Edgar. This failure to inform the Plaintiffs about the limitation of the use of the property to that of a commercial motel gives rise as a matter of law to a violation of 940 Code Mass. Regs §3.16 which states: “Without limiting the scope of any other rule, regulation, or statute, an act or practice is a violation of Mass. Gen L. Ch. 934 §2 if any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction” Id. at 940 Code Mass. Regs §3.16. ee ~ Edgar and Old Wharf failed to disclose the material fact that the property was a commercial motel enterprise regardless of whether there was a duty to disclose. As a developer and seller of real property in the Commonwealth of Massachusetts, Edgar and Old Wharf had an affirmative duty to clearly set forth to the Plairitiffs as consumers that the property was a commercial venture versus residential property which Edgar and Old Wharf failed to do. See Sheehy v. Lipton Indus. Inc. 24 Mass.App.Ct. 188, See also 940 Code Mass. Regs., §3.16(2). Edgar testified at his deposition that he knew the property was operating under a motel license and the zoning could not change the motel use but failed to disclose these material facts that would have influenced the Plaintiffs not to purchase a “motel room” from the Edgar and Old Wharf as the Plaintiffs were in the market for a single family year-round residential condominium to retire to. See also Schwartz v. Rose, 418 Mass. 41, 45 (1994); York v. Sullivan, 369 Mass. 157, 162 (1975). The Plaintiffs advanced demand letters to both Edgar and Old Wharf before filing the instant litigation, seeking rescission and reasonable and foreseeable consequential damages and out of pocket expenses. (See Exhibit 9). The Defendants made no reasonable offer of settlement in violation of Mass. Gen. L. ch. 934 §9(3). Old Wharf and Edgar had an obligation to review the facts and the law in response to the Plaintiffs’ demand letters. Heller v. Silverbranch Const. Corp., 376 Mass 621, 627 (1978). Old Wharf and Edgar should have recognized that in light of the law goveming c. 93A claims based on misrepresentation by omission, liability on its part, including causation and damages, was at least highly likely. See Parker v. D’Avolio, 40 Mass.App. Ct. 394, 345 (1996). Old Wharf and Edgar’s response readily dismissing the Plaintiffs claims when they knew that, at a very minimum that the Plaintiffs deed was clearly erroneous shows the fact that a 11 total lack of good faith has been established on the part of Old Wharf and Edgar. See. Patry v. Harmany Homes, Inc., 10 Mass.App.Ct. 1,6 (1980). Edgar and Old Wharf allege that the Plaintiffs deed was drafted in error and have filed suit against their now deceased Counsel, David Skiba from Eastham. Edgar and Old Wharf allege a mistake by their Counsel in drafting the Plaintiffs deed as a defense. Even arguendo if this was true, it would immediately trigger rescission as a matter of law but no offer of any kind was proffered by Edgar or Old Wharf Village to the Plaintiffs demand letters which gives rise to a bad faith settlement response. (See Docket, Paper #31, Motion to Intervene the Estate of David Skiba filed by the Edgar and Old Wharf). Old Wharf and Edgar take the position that no liability for misrepresentation should exist here because they claim that the Plaintiffs had a duty to use their own due diligence and investigate the zoning constraints. One difficulty with this argument is that under c. 934A, a plaintiff has no affirmative duty to investigate or make inquiry to establish the truth of claims made by another, and, therefore, in this case the Plaintiffs had no duty to investigate the veracity of the representations of Edgar or Old Wharf and its agent realtor David Dillion. This is especially applicable to vendors selling in the normal course of business within the Commonwealth of Massachusetts. See, e.g., Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 466 (1975). See also Sheehy v. Lipton Indus., Inc., supra, 24 Mass.App.Ct. at 195; Mongeau v. Boutelle, 10 Mass. App.Ct. 246, 248-49 (1980). Edgar and Old Wharf rely on the fact that the Plaintiffs were represented by Counsel. ~~. While the Condominium Master Deed on page nine, recites one time the phrase “motel- condominium”, the master deed is silent as to what exactly a “motel condominium” is and even if Plaintiffs’ Counsel was negligent in not discovering the term, Edgar and Old Wharf cannot use any implied negligence on the part of Plaintiffs’ Counsel to escape liability for their own misdeeds. There is joint and several liabilities when the independent tortious conduct of each of two or more persons causes indivisible harm which occurs consecutively. See Delicata v. Bourlesses, 9 Mass. App. Ct. 713, 404 N.E.2d 667, 671-672 (1980) (“The established rule is that an injured party is entitled to sue a tortfeasor for the full amount of damages for an indivisible injury that the tortfeasor's wrongdoing was a substantial factor in causing, even if the concurrent tortious conduct of others contributed to the incident.”); Com. v. Boston Edison Co., 444 Mass. 324, 327, 828 N.E.2d 16 (2005) (“Where joint and several liability applies, plaintiffs may recover their full damages from any liable party subject to offset by recovery from any other tortfesor.”). 12 Wherefore the Plaintiffs respectfully request this Honorable Court to make findings and tule that the Defendants, Charles Edgar and Old Wharf Village violated Mass Gen. L. Ch 93A by (1) failing to disclose material facts to the Plaintiffs; (2) made material representations of fact of their own knowledge, which were false to the Plaintiffs; and (3) proffered a bad faith settlement response to the Plaintiff's, order rescission, award the Plaintiffs’ damages for their consequential damages and out of pocket expenses as set forth in the Plaintiffs’ affidavit and treble or double the damages and award attorney fees and costs pursuant to c. 93A §9(4). COUNT DI—NEGLIGENT MISREPRESENTATION— Old Wharf Village & Charles Edgar A claim for negligent misrepresentation will stand if in the course of business, the Defendants supplies false information for the guidance of others in their business transactions, causing and resulting in pecuniary loss to others by their justifiable reliance on the information, with failure to exercise reasonable care or competence in obtaining or communicating the information. Fox v. F & J Gattozzi Corp., 41 Mass.App.Ct. 581, 587, 672 N.E.2d 547 (1996), quoting Restatement (Second) of Torts § 552(1) (1977). Negligent misrepresentation may be interwoven with intentional misrepresentation as well as c. 93A claims and differs from an action for fraud because “liability for misrepresentation does not require a showing that the defendant even knew that the statements made were false or that the defendant actually intended to deceive the plaintiff.” Kitner v. CTW Transp., Inc., 53 Mass.App.Ct. 741, 749, 762 N.E.2d 867 (2002). Negligent misrepresentation may be so extreme or egregious as to constitute a violation of G.L. c. 93A, §2, See Golber v. BayBank Valley Trust Co., 46 Mass.App.Ct. 256, 261, 704 N.E.2d 1191 (1999), quoting Glickman y. Brown, 2] Mass.App.Ct. 229, 235, 486 N.E.2d 737 (1985) (negligent misrepresentation of fact the truth of which is reasonably capable of ascertainment is an unfair and deceptive act or practice under G.L. c. 93A, § 2 [a]”). After extensive discovery and due to the admissions made by Defendant Edgar both individually and in his capacity as Manager of Old Wharf Village LLC during discovery with regards to Edgars knowledge that he knew the Locus was a motel, the Plaintiffs, for the purposes of this Summary Judgment contend that this case sounds in fraud and in violation of Mass. Gen. L. Ch. 93A. In the instant case Edgar, has admitted he knew that the Locus was a motel, but he choose to market the units by himself and through his agent, David Dillion as single family year- 13 round residential units. The Plaintiffs relied not only on the representations made to induce them into purchasing their unit, but also relied on the use language enumerated within the deed the Plaintiffs received from Old Wharf and executed by Edgar and the Plaintiffs contend that they have met all the requisite elements for a claim of negligent misrepresentation as an alternate theory of recovery and that of an action for intentional misrepresentation does not lie, than the Plaintiffs contend that as a matter of law, the negligent misrepresentations were so gross in nature that they give rise to a further claim pursuant to Mass. Gen. L. ch. 93A (2). Wherefore the Plaintiffs respectfully request this Honorable Court to make findings and tule that the Defendants’ actions and representation rise to the level of actionable gross negligent misrepresentation as an alternate theory of recovery and the Plaintiffs be afforded an order rescission, and award the Plaintiffs damages for their out of pocket expenses as set forth in the Plaintiffs’ affidavit. COUNT IV --THE BREACH OF CONTRACT—Old Wharf Village LLC In order to prevail on a claim for breach of contract, a Plaintiff must demonstrate that there was an agreement between the parties; the agreement was supported by consideration; the plaintiff performed his or her part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 46 N.E.3d 24 (2016) Sey In the instant case the Defendant, Old Wharf tendered to the Plaintiffs a deed to the Locus that specifically states that the intended use of the Locus is for “single family year-round residential purposes”. The Locus is not afforded the requisite zoning to ever be used for single family year-round residential use. Old Wharf, being in the business of developing real estate to consumers, either knew or should have known that the only zoning relief afforded was for the property to be used as a motel. The special permits in full force and effect at the time of the Plaintiffs’ purchase in June of 2010 mandated that the use be limited to a commercial motel. (Exhibit 7). The Defendant Old Wharf’s failure to tender a deed that conforms with the special permits of the town of Dennis, the town of Dennis’ by-laws, and that does not comport with the use in which the Defendants marketed the Locus to the Plaintiffs and in which the Plaintiffs relied upon constitutes a material breach of the contract by Defendant Old Wharf. 4 The Plaintiffs have a right to rely on Defendant Old Wharf’s express covenants in the Plaintiffs’ deed. While the doctrine that acceptance of a deed ordinarily merges and discharges all obligations in the purchase and sale agreement, there is no merger or discharge for covenants expressly specified in a deed, Sumner v. Williams 8 Mass. 162 (1862), Gates v. Caldwell, 7 Mass. 68 (1810). Old Wharf’s claims of a mistake by their attorney, David Skiba (who is now deceased) for including the language “single family year-round residential use” in the deed is not supported anywhere by the evidence that has been produced in discovery. The evidence shows that all the units at Old Wharf Village Condominiums were marketed in the normal course of business, both orally and in writing by Old Wharf’s real estate agent, David Dillion and Defendant Edgar as single family year-round residential condominiums. Exhaustive discovery by the Plaintiffs showed that wa Realtors, Buyers, Bank Attorneys, Bank Appraisers, all’came to the same conclusion that the permitted use of the units where single family year-round residential units based on the how Defendants Old Wharf Village and Edgar held the property out to the general public at large. The Plaintiffs deposed three realtors who testified that they showed the Locus and had no idea that it was a motel. All three seasoned Realtors thought the units were single family year- round residential condominiums based on what was represented to them. (See Deposition Testimony of Realtor Alan Hunter, (Ex 23), Deposition Testimony of Realtor Heather Miller, (Ex, 24), and Deposition testimony of Realtor Stephen Foley (Ex. 25). The Plaintiffs further deposed four other purchasers of units Old Wharf Villages ~ Condominiums, one that bought two months prior to the Plaintiffs and the other three who bought subsequently shortly thereafter within 12 to 18 months. Each and every one of these purchasers all testified that they also thought that they purchased single family year-round residential condominiums---not motel or timeshare units. (Ex. 19 Deposition of Ronald Alleruzzo; Ex. 20 Deposition of Mark Guess; Ex.21 Deposition of Mark Gorny, Ex. 22 Depo of Ann Reilly). These purchasers all testified that they never would have purchased their respective units if they had known that they were anything less than single family year-round residential units. The Plaintiffs have shown that no genuine issues of material fact exist with regards to Count I for breach of contract against Defendant Old Wharf where: (1) there was a purchase and sales agreement entered into by the parties to buy the Locus; (2) the Plaintiffs performed by a5 tendering to Old Wharf the purchase price in cash and; (3) the Defendants tendered a deed that recited the use of the Locus was for single family year round purposes; (4) the Plaintiffs accepted the deed as the use set forth within the deed is exactly what was represented to the Plaintiffs in writing by Defendant’s Old Wharf and Edgar and; (5) the Defendant Old Wharf breached the terms set forth in the deed as the deed failed to convey real property that allows for single family year residential use and the Locus is nothing more than a commercial motel room. Wherefore the Plaintiffs respectfully request this Honorable Court to make findings and rule that the Defendants breached the contract with the Plaintiffs, order rescission, and award the Plaintiffs consequential damages, out of pocket expenses, costs, and reasonable attorney fees as set forth in the Plaintiffs’ affidavit. COUNT V-- MONEY HAD AND RECIVED AND COUNT VI— RESCISSION OLD WHARF VILLAGE LLC The two remaining Counts are equitable in nature. First the Plaintiffs seeks the return of the $220,000.00 dollars that they gave to Old Wharf Village. “When in equity and good conscience, one has property without right that ought to go to another, he cannot retain it. In such case the action is not on the express ultra vires contract, but on an implied contract to return or make compensation for property or money that one has no right to retain.” M. McDonough Corp. vy. Connolly, 313 Mass. 62, 46 N.E.2d 576 (1943), and cases cited therein. The Plaintiffs received a deed from Old Wharf that did not transfer any tangible interest in the property as the property . ~ had no zoning relief other than to be one singular motel. The “unit” conveyed to the Plaintiffs was for nothing more than a mere interest in the commercial motel. It did not enjoy the benefits of exclusive elements of a condominium pursuant to Mass. Gen. L. Ch. 183A as the unit must be open to transit use and who ever stays there must pay a rooms tax pursuant to Mass Gen. L. ch. 140 12A. The deed tendered to the Plaintiffs by Old Wharf contains an express covenant that the Unit intended use be a single family year-round residential property when in fact the special permits strictly forbid any single family year-round residential use. As such Old Wharf, cannot cure this defect with regards to the use provision and the Plaintiffs never received the benefit of the bargain for the money the Plaintiffs tendered to the Defendant. Equity demands the return of the money had and received by Old Wharf back to the Plaintiffs. 16 For the same reason as set forth supra, equity also requires rescission. Rescission is a remedy of an equitable nature which allows a party to a contract to undo or abrogate it for a legally sufficient reason and which returns the parties to their precontractual positions. It is regarded as synonymous with “cancellation of a written instrument,” and is a remedy granted in the discretion of a court of equity for the purpose of annulling a contract and rendering it as though it did not exist. “In this Commonwealth one who has been induced to enter into a contract in reliance upon a false representation of a material fact susceptible of knowledge which was made as of the party's own knowledge and was stated as a fact and not as a matter of opinion is entitled to rescission.” Yorke v. Taylor, 332 Mass. 368, 371, 124 N.E.2d 912, 914 (1955). Rescission of a contract to purchase realty on the ground that the sellers' advertising of the property for multi-family residential use was a fraudulent representation in the nature of a half-truth because sellers knew property was being used in violation of zoning ordinance. Kannavos v. Annino, 356 Mass. 42, 49- 50, 247 N.E.2d 708, 712-713 (1969). In the instant case Old Wharf, freely admitted it knew the Locus was constrained to being used only as motel. The fact that it changed the form of ownership to a condominium by filing the documentation pursuant to Mass. Gen. L. Ch. 183A does not change the zoning relief by the town of Dennis with regards to the permitted use. The Plaintiffs cannot reside there, nor stay there for that matter. Mass. Gen. Ch. 140 12A mandates that all motel rooms be “held out to the general public at all times for transient use. It would be hard to imagine an action more viable to apply the equitable principles of rescission then in the instant case. Wherefore the Plaintiffs pray to the Honorable Court to make findings and rule that there are no genuine issues of material fact in dispute and as a matter of law the Plaintiffs are entitled the equitable remedies afforded by the Counts of Money Had and Received and Rescission. The Plaintiff requests this Honorable Court to undo and abrogate the exchange of the Plaintiffs $220,000.00 and return the parties to their precontractual positions. THE PLAINTIFFS’ INABILITY TO MITIGATE THEIR DAMAGES At the time the Plaintiffs purchased the unit from the Defendants in June of 2010, the only zoning relief afforded for the use of these units is a motel (Ex. 7. Special Permit A-1447 dated March 24, 2009. R.A. pg. A-40 contained in findings and conditions). After the Defendants made application, in May of 2011 the property was afforded a special permit that once again specifically limited the use of the Plaintiffs’ unit to again that of “a motel that must be kept in constant 17 ‘ transition”.(Ex. 11, at bullet #4) See Mass. Gen L. ch. 140 § 12A, Motel rooms are a place where sleeping or housekeeping accommodations are supplied for paying guests for transient occupancy. Id.) The Town of Dennis subsequently found the Defendants never accepted the conditions of the 2011-5 special permit and it was revoked thereby resurrecting the 2009 Special Permit A-1447 which again afforded only motel use to the Plaintiffs’ unit. On June 1. 2015 the Defendants once again applied for a special permit to operate the development as a commercial motel condominium where 50% of the units must be kept in constant transition at all times. The Town again placed numerous conditions on the special permit mandating that the Master Deed be amended and an office be maintained and further mandated that the Master Deed be amended to use “Plain Language” as the Town was aware that the development could not be held out as anything other than that of a commercial motel condominium. (Ex. 17 Special Permit). To date none of the we conditions of this special permit have been met. The unit is still a motel and the 2015 special permit, like the 2011 special permit has not been incorporated in the master deed rendering the title defective for any possible sale. 1) the Plaintiffs could not use the property as it was a motel (2) could not rent the unit themselves as these units were not individual motels, but rather rooms in a Motel that operate under one motel permit; and 3) the Plaintiffs could not sell it as it has no value until there is proper zoning relief. As is the case here, an individual can hold clear title to a parcel of land, although the same parcel is valueless because of some restriction or regulation on its use. Chicago Title Ins. Co. v. Kumar, 24 Mass.App.Ct. 53, 56-57, 506 N.E.2d 154 (1987). Contrary to the Defendants contention, the Plaintiffs need not wait for a notice of violation by not — adhering to the zoning Jaws currently in place that foreclose the possibility of mitigation. Under M.G.L.A. c. 40A, § 2, property owners are bound by the zoning by-laws and ordinances which towns and cities may pass. This is the very reason, as part of their relief the Plaintiffs have prayed for rescission. The Law simply does not mandate that the Plaintiffs become motel operators due to the misgivings of the Defendants. CONCLUSION WHEREFORE, the Plaintiffs, Rick Yatsnick and Joal Yatsenick, respectfully request this Honorable Court to make finding of fact and rule that there are no genuine issues of material facts in dispute and as a matter of law the Plaintiffs are entitled to a Judgment to enter in their favor for the relief prayed for in each of the Counts advanced against the Defendants Old Wharf Village and 18 . ve Charles Edgar within their Verified Complaint and advanced in this Motion for Summary Judgment. Respectfully submitte co Brian K. Galle B.B.O. #566078 Attorney for the Plaintiffs/Appellees Rick Yatsenick and Joal Yatsenick 25 Lady Slipper Drive Plymouth, MA 02360