Preview
COMMONWEALTH OF MASSACHUSETTS
1) ORIGINAL
BARNSTABLE, ss SUPERIOR COURT
DOCKET NO. 1372CV00125
RICK YATSENICK & JOAL YATSENICK
PLAINTIFFS
Vv.
Cy
OLD WHARF VILLAGE LLC, CHARLES
EDGAR, DAVID DILLON D/B/A AS
DILLON REAL ESTATE,
& STACEY CURLEY
DEFENDANTS
PLAINTIFFS RICK YATSENICK AND JOAL YATSENICKS MOTION IN
OPPOSITION TO DEFENDANTS’ OLD WHARF VILLAGE LLC & CHARLES
EDGAR’S MOTION FOR A JUDGMENT ON THE PLEADINGS WITH SUPPORTING
MEMORANDUM OF LAW
Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick (“Plaintiffs”), by their
Attorney Brian K. Galletta, Esq. in the above captioned action with the following Motion in
Opposition to the Defendants’ Old Wharf Village & Charles Edgar’s Motion for a Judgment on
the Pleadings. In Support thereof the Plaintiffs offer the following Opposition and supporting
Memorandum of law as follows:
THE DEFENDANTS’ MOTION FOR A JUDGMENT ON THE PLEADINGS IS NOT
PROPERLY BEFORE THIS HONORABLE COURT
A motion for judgment on the pleadings raises the question of whether the pleadings
present an issue of material fact, and if there is no such issue presented, the question as to whether
the moving party is entitled to judgment. If any material fact is in issue, judgment on the pleadings
cannot be entered. A motion for a judgment on the pleadings only has utility when all material
allegations of fact are admitted in the pleadings and only questions of law remain. The effect of a
s motion for judgment on the pleadings is to challenge the legal sufficiency of the complaint. Minay:
v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 467 N.E.2d 874 (1984).
In the instant case has the Defendant repeatedly raised the exact same arguments to test the
legal sufficiency of the Plaintiffs’ Verified Complaint where:
(1) The Defendant, Charles Edgar as the Developer already moved for Summary Judgment
raising the exact same defenses as set forth in this Motion and this Honorable Court
declared that there were genuine issues of material fact in dispute; (Docket #18)
os
we (2) The Defendants Charles Edgar and Old Wharf Village opposed the Plaintiffs’ Motion for
a Real Estate Attachment raising the exact same defenses and this Honorable Court found
that there was a high likelihood of success on the merits of the Plaintiffs Verified Complaint
and granted the Motion; (Docket #37.1)
(3) That the Defendants Charles Edgar and Old Wharf Village took an interlocutory appeal of
the Plaintiffs real estate attachments, again using the same defenses and, after a full briefing
of both the Defendants and the Plaintiffs, the Appeals Court upheld this Honorable Court’s
findings of a high likelihood of success on the merits of the Plaintiffs Verified Complaint;
(Docket #40)
(4) That the Plaintiffs moved for Summary Judgment as to all Counts and once again for the
fourth time the Defendants raised the same arguments stated. This Honorable Court stated
that although the Plaintiffs have raised some very compelling arguments, there still exists
genuine issues of material and that a trial should be marked up as soon as possible. (Docket
#43.10)
The Court may also consider those facts of which judicial notice can be taken, including the
court's records in a related action. Martinez v. Waldstein, 89 Mass. App. Ct. 341, 49 N.E.3d 245
C S (2016); Jarosz v. Palmer, 49 Mass. App. Ct. 834, 733 N.E.2d 164 (2000), judgment aff'd, 436
4
Mass. 526, 766 N.E.2d 482 (2002)
In the instant case, the Honorable Justice Rufo, Justice Nickerson, and Justice Carhart all
made findings on the sufficiency of the Plaintiffs’ Verified Complaint and found both genuine
issues of material fact in dispute and a high likelihood of success on the merits. A judgment on the
pleadings is appropriate only where there are no material facts in dispute on the face of the
pleadings. Mass. R. Civ. P. 12(c). Clarke v. Metropolitan Dist. Commission, 11 Mass. App. Ct.
955, 417 N.E.2d 47 (1981). Neither a motion for judgment on the pleadings under the applicable
rule, nor when converted to a motion for summary judgment under another applicable rule, can be
ws
granted properly where there is a genuine issue of material fact. Rules of Civil Procedure, Rules
12(c), 56. Canter v. Planning Bd. of Westborough, 7 Mass. App. Ct. 805, 390 N.E.2d 1128 (1979).
All parties were ready for a jury trial on October 23, 2017, but the case was never reached
because both courtrooms had trials that lasted longer then expected. The Plaintiff, Mrs. Yatsenick,
could not wait any longer for a necessary surgery to her rotator cuffs and the case was put over to
trial on March 23, 2018.
1. THE EXCULPATORY CLAUSES CONTAINED WITHIN THE PARTIES
PURCHASE AND SALE AGREEMENT DOES NOT EXCUSE THE
DEFENDANT’S MISREPRESENTATIONS
3
The Plaintiffs were tendered a deed by the Defendant that clearly states that:
“The purpose of which the Condominium and each of the units is intended is only for year-
round single family residences in each of the units as set forth in the aforesaid Master
Deed” (Complaint Exhibit c).
The Defendants’ contention in their Motion that the purchase and sale agreement somehow
“supersedes the deed” simply is not the law. Buyers have a right to rely on a seller’s express
covenants in a deed. Sumner v. Williams 8 Mass. 162 (1862), Gates v. Caldwell 7 Mass. 68
(1810). While the doctrine that acceptance of a deed ordinarily merges, and discharges, all
obligations in the purchase and sale agreement, except those specified in the deed, a party to a
contract with another cannot claim shelter by a contractual device, such as an exculpatory or
merger provision, against claims of misrepresentation or deceit. Greenleaf Arms Realty Trust I
LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288-89, 962 N.E.2d 221, 228 (2012). The
legal analysis should end there as the Plaintiffs do not need to “go behind” the deed to show that
the Plaintiffs bargained to purchase a single-family year-round residence to retire in based on the
representations of the Defendant.
The Defendants signed the deed which expressly set forth that the intended use of the
property as being a single-family year-round residence. The Defendants signed it and are charged
as a matter of law to defend the covenants set forth within that deed upon its execution. Sumner v.
Ww
Williams 8 Mass. 162 (1862), Gates v. Caldwell 7 Mass. 68 (1810). The Defendants first relies
on the exculpatory clause in paragraph 25 of the Parties’ standard purchase and sales agreements
to escape liability based on any set of facts. Paragraph 25 of the standard boilerplate Purchase and
Sale Agreement states in relevant part:
“That the BUYER acknowledges that the BUYER has not been influenced to enter into
this transaction nor has relied upon any warranties or representations not set forth or
incorporated in this agreement or previously made in writing except for the following
additional warranties and representations, if any, made by the SELLER or the Broker(s):
NONE.” (Complaint Exhibit B at pg. 5)
This exculpatory clause is of no help to the Defendants’ plight to avoid liability for the
fraudulent or negligent misrepresentations made by the Defendants to the Plaintiffs with regards
to the permitted use of the property. The Defendants marketed and held out the unit to the Plaintiffs
as single-family year round residency condominiums (Complaint Exhibit A, [] 15) As was the
case here, should the Seller disclose material information such as the permitted use of the property,
the Seller is under a duty to disclose fully and accurately to the extent of his or her knowledge and
this exculpatory clause shall have no effect. Zimmerman v. Kent, 31 Mass. App. Ct. 72 (1991).
¢
The provisions in the purchase and sale agreement that the Plaintiffs accepted the
conveyance “as is,” that he “recognize[d] that [s]eller makes no warranties whatsoever,” and that
he “has not been influenced to enter into this transaction nor has he relied upon any warranties or
representations not set forth in this agreement or previously made in writing” (none was set forth
Lu
or made) cannot assist the Defendants. Massachusetts case law rejects the assertion of “as is” and
like clauses as an defense to allegations of misrepresentation, fraud, deceit or alternatively gross
negligent misrepresentation. Sheehy v. Lipton Industries, Inc., 24 Mass. App. Ct. 188, 193-194,
N.E.2d (1988) See also Zimmerman v. Kent, 31 Mass. App. Ct. 72, 76-77 & n. 9, 83, N.E.2d
(1991), “seller rebuffed buyer's complaint, relying on exculpatory contract language. The buyer
sued and won a judgment that both rescinded the sale of a house and awarded substantial
damages.”)
A boilerplate exculpatory clause will not be enforceable if fraud is involved; it cannot be
used to escape liability for misrepresentations that were in fact made to a buyer, and upon which
VY /
the buyer reasonably relied to his/her detriment in entering into the contract and purchasing the
property. DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 806 n.14, 985 N.E.2d 1187, 1196
(2013).
Thus, the exculpatory clause relied on in paragraph 25 cannot shield the Defendant in the
instant case.
Notwithstanding the Greater Boston Real Estate Board purchase and sale agreement
standard exculpatory clause, the warranties and representations clause permits reliance on prior
written representations not set forth or incorporated in the agreement. The warranties and
representation clause of the purchase and sales agreement does not relieve the defendants of
liability for written misrepresentations such as the Defendant’s marketing material (Complaint
5
Exhibit A, [] 15) . DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 806, 985 N.E.2d 1187, 1196
(2013).
One of the main problems with the Defendants defenses is that the Defendants fails to
acknowledge that they are in the business of developing and selling real property to Consumers
rather than engaging in simple one-time arm’s length transactions. The Plaintiffs were owed a duty
by the Defendants for full and accurate disclosure of exactly what the Defendants were selling and
the Plaintiffs had a right to rely on (1) the Defendant Contractor’s written marketing material and
the material representations made there in; (2) the Defendant Contractors Agent’s express
representations in the multiple real estate listing, (3) and most importantly the language in the Unit
Deed drafted, executed, and delivered to the Plaintiffs. (Plaintiff's Verified Complaint Exhibit 1,
1115, and Exhibit C.)
LY
Furthermore, the Defendants had a duty to disclose any fact which may influence the Plaintiffs
to not enter into purchasing the unit the Defendants were developing and selling in the normal
course of the Defendants’ business as real estate developers. 940 Code Mass. Regs §3.16. The
failure of the Defendants to disclose to the Plaintiffs as Consumers in our Commonwealth that this
property was and always will be a commercial motel venture gives rise to a violation of Mass.
Gen. L. Ch. 93A §2.
2. THE UNIT DEED TENDERED TO THE PLAINTIFFS BY THE DEFENDANTS
ENUMERATES THE PERMISSABLE USE OF THE PROPERTY AND THE USE
PROVISIONS INCORPORATED BY REFERENCE IN THE PURCHASE AND
SALE AGREEMENT AND THE MASTER DEED DO NOT EXCUSE THE
DEFENDANTS’ MISREPRESENTATIONS
Mass. Gen. L. Ch. 183A sec. 9(d) states that unit deeds specifically set forth:
“A statement of the use for which the unit is intended and the restrictions, if any, on its use”
Id.
There was no reason for the Plaintiffs to make inquiry as to the permissible zoning use of the
condominium as it is set out right in the deed they accepted that was drafted and signed by the
Defendants. As stated supra. once again, the unit deed states:
6
“The purpose of which the Condominium and each of the units is intended is only for year-round
single family residences in each of the units as set forth in the aforesaid Master Deed” (Complaint,
Exhibit C).
These representations that are mandated by statute aligns itself with (1) the way the
property was marketed by its brochures (Complaint, Exhibit A), (2) The Defendants’ Agent’s
Multiple Listing Sheet, (Complaint, Paragraph 15-17), (3) and the representations made by the
Defendants to the Plaintiffs during the viewings the Plaintiffs had with them on the property.
(Complaint, Paragraph # 2-17). The Plaintiff had no obligation to check on the veracity of the false
representations made with regard to the zoning use. The recipient ofa fraudulent misrepresentation
of fact is justified in relying on its truth, although he might have ascertained the falsity of the
representation had he made an investigation. Yorke v. Taylor, 332 Mass. at 374. Henderson v.
V4
D'Annolfo, 15 Mass. App. Ct. 413 , 423 (1983). Restatement (Second) of Torts Section 540. The
representations were both factual and material.
Pursuant to the Mass. Gen. L. ch. 93A claim set forth in the Plaintiffs Verified Complaint,
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 Sheehy v. Lipton Indus. Inc., 24 Mass.App.Ct. at 195; Mongeau v. Boutelle, 10
Mass.App.Ct. 246, 248-49 (1980). The Defendants cite to the Plaintiffs Counsel’s duty to negate
any misdeeds on the part of the Defendants. Even arguendo, if Plaintiffs’ Counsel was negligent
—~ in not examining the special permits outside of the Master Deed, Edgar and Old Wharf cannot use
any implied negligence on the part of Plaintiffs’ Counsel to escape liability for their own
transgressions. 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 tortfeasor.”).
Even more troubling with the unit deed tendered to the Plaintiffs is the fact that Mass. Gen.
L. ch. 183A, sec. 9(d) specifically mandates full disclosure of any restrictions on the use of the
property. The Defendants omitted all information with regards to the fact that the zoning
constraints contained in two special permits issued by the Town of Dennis limited the property to
that of a Commercial Motel.’ The Defendants had an obligation to specifically recite these
constraints in the unit deed.
The Unit Deed tendered to the Plaintiffs that the Defendants drafted states that the use is
for single family year round residential condominiums as set forth in the aforesaid Master Deed.
The Defendants also drafted the Master Deed which totally contradicts the unit deed by making
reference to two special permits that someone would have to go outside of the Master Deed and
review to become enlightened that they are dealing with a building which use is limited to a
SY
commercial motel room. What is clearly enumerated on the Unit Deed is totally contradicted by
what is “incorporated by reference” and hidden in the purchase and sales agreement and the Master
Deed. Ifa contract has terms that are ambiguous, uncertain, or equivocal in meaning, the intent
of the parties is a question of fact to be determined at trial. Browning-Ferris Industries, Inc. v.
Casella Waste Management of Massachusetts, Inc., 79 Mass. App. Ct. 300, 307, 945 N.E.2d 964,
971 (2011). Indeed, the party who wrote the language had the capacity and opportunity for clear
expression and should bear the detriment of any unclear expression Air Plum Island, Inc. v. Society
For Preservation of New England Antiquities, 70 Mass. App. Ct. 246, 253, 873 N.E.2d 1159, 1165
_ (2007). The Plaintiffs allege that the ambiguities and contradictions were done by the Defendants
in an effort to induce them to purchase as set forth in the Plaintiffs Complaint. (Complaint
Paragraphs 35-60.
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. 93A §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.
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 in the business
of building and selling real property in the Commonwealth of Massachusetts, Edgar and Old Wharf
had an affirmative duty to clearly set forth to the Plaintiffs 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 and Old Wharf further failed to complete their contractual obligations by delivering a unit
that can in fact be used the way they represented it. The contractual obligations set forth in the
deed to deliver a single family year round residential condominium cannot be satisfied due to the
zoning constrictions on the property and the Plaintiffs are entitled to rescission as a remedy for the
breach of contract by the Defendants as well as the foreseeable consequential damages the
~ Plaintiffs incurred.
3 THE DEFENDANTS’ CAN NOT NOW MISINTERPERT THE WORDS USED TO
DESCRIBE THE PERMISSABLE USE IN THE UNIT DEED.
The Defendants further argue that “Single Family year round residential use” as set forth in
the Unit Deed somehow can be interpreted as fitting within the same meaning and use as a
commercial motel. The Defendants cite 521 CMR 8:00 as controlling. A review of 521 CMR
8:00 does in fact carve out an exception to allow Owners of transit lodging facilities to occupy
and reside in their unit as a residence. Where the Defendants fall short is that they do not
disclose to this Honorable. Court the full exemption which has two prongs—the commercial
dwelling must:
a. Contain five or fewer beds or contains five or fewer rooms for rent or hire; AND;
b. Is actually occupied as a residence by the proprietor of the establishment.
It would be reasonable to conclude this exception was for owner occupied bed and breakfast type
motels and the exemption is not applicable to the facts of this case.
The Unit Deed says that the use is:
(a) Single family—meaning non-transient and not multifamily;
(b) Year round---meaning as opposed to transient or seasonal use;
(c) Residences—meaning where one can live and Homestead the property as opposed to
Commercial Property;
(d) Condominium—nmeaning a unit where one has exclusive use of a defined area as opposed
to acommercial motel room which must be kept in constant transition as defined by Mass.
Gen. Law ch. 140 Sec. 12A and further defined by Dennis Board of Health as transient
occupancy for less then 30 days.
A review of the Answer proffered by the Defendants to the Plaintiffs 93A demand letter gives
an enlighten view of genuine issues of material fact where the Defendants states.
“[t]hat a year round residence was never discussed”
~
It begs the question as how the Defendants could take this position when they gave the
Plaintiffs a deed that specifically states just that---single family year round residences?
(Plaintiffs Verified Complaint, Exhibit D, last page).
The Defendants simply fail to understand the distinction between use and ownership when
it comes to Condominiums. Pursuant to Mass. Gen. L. ch. 183A anyone can condominiumize
any property including their house for example for the purposes of ownership. But when it
comes to use, zoning relief must be obtained by the Town pursuant to their by-laws to actually
use the property. While towns in our Commonwealth cannot control ownership, they can
control use with zoning requirements. Goldman v. Town of Dennis, 375 Mass. 197, 199, 375
N.E.2d 1212, 1213 (1978).
The Plaintiffs have always contended that the Defendants bought the motel at 405 Old
Wharf Road out of a foreclosure sale, drafted a Master Deed and recorded it along with a Trust
and started selling units, advertising them as year round residential condominiums without
apply for or being granted the requisite zoning relief from the Town of Dennis. In the instant
case the constraints of the special permits on the property mandating it to be a motel renders
the use non-existent when the motel is condominiumized and a unit owner has no control over
the actual workings of the motel itself. “[t]here is a difference between economic lack of
marketability, which concerns conditions that affect the use of land, and title marketability,
10
which relates to defects affecting legally recognized rights and incidents of ownership. ... An
individual can hold clear title to a parcel of land, although the same parcel is valueless or
considered economically unmarketable because of some restriction or regulation on its use.
Somerset Sav. Bank v. Chicago Title Ins. Co., 420 Mass. 422, 428, 649 N.E.2d 1123 (1995)
The Plaintiffs have not been able to use the property because they were told by the Town
Planner, Daniel Fortier that the unit they bought was a motel room and that they could not
reside in and that the property did not even have a permit to operate as a motel. This is why
the Plaintiffs have to this day never occupied the unit. Nor could they rent it out on their own
because the motel which this unit resides in is not within their dominion or control to operate
even if they wanted to be in the business of inn keeping for transient guests. To the contrary,
the Plaintiffs are not innkeepers. They are simply a retired couple.
SY
4, THE DEFENDANTS HAVE MISSTATED TO THIS HONORABLE COURT THE
DAMAGES ALLEGED IN EACH AND EVERY COUNT IN THE PLAINTIFF’S
COMPLAINT
The Defendants have misstated in their Motion to this Honorable Court that the Plaintiffs in
their Verified Complaint have not set forth any damages. To the contrary, the Plaintiffs have
a. alleged that they tendered to the Defendants $220,000 dollars in cash for a unit that the Town
told them they could not reside in and must be rented out as a motel room to any transient
person that comes along through the office at the motel. The Plaintiffs have sought rescission
and a return of their money in their Complaint as well as recovery for ongoing monthly
mortgage payments on the amount they borrowed to purchase the property, interest, association
fees, taxes and all other reasonably foreseeable consequential damages which at that time
totaled $310,000.00. (Complaint Paragraph 41, 49, 60).
WHEREFORE, the Plaintiffs Rick Yatsenick and Joal Yatsenick reallege each averment
within their Verified Complaint and respectfully request this Honorable Court to make findings
and rule:
11
(1) The Plaintiffs have demonstrated genuine issues of material fact with regards to each
Count within their Complaint;
(2) That the Defendants have offered no affirmative defenses that would give rise to a
Judgment on the Pleadings;
(3) That the Defendants Motion for a Judgment on the Pleadings be denied and that the Case
proceed to trial as scheduled.
Respectfully Submitted,
Brian K. Galletta
B.B.O. #566078
Attorney for the Plaintiffs
Rick Yatsenick and Joal Yatsenick
25 Lady Slipper Drive
Plymouth, MA 02360
Phone: (508) 591-7303
Fax: (508) 746-1817
DATE: January 27, 2018 Email: bkglegal@gmail.com
\
~
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the forgoing document was served upon all known parties herein
by causing a copy to be delivered by first class prepaid USPS mail on this 27" day of January
2018..
Brian K. Galletta, Esq.
B.B.O. #566078
Attorney for the Plaintiffs
Rick Yatsenick and Joal Yatsenick
25 Lady Slipper Drive
Plymouth, MA 02360
12
Phone: (508) 591-7303
Fax: (508) 746-1817
DATE: January 27, 2018 Email: bkglegal@gmail.com
-
13
Preview
COMMONWEALTH OF MASSACHUSETTS 1) ORIGINAL BARNSTABLE, ss SUPERIOR COURT DOCKET NO. 1372CV00125 RICK YATSENICK & JOAL YATSENICK PLAINTIFFS Vv. Cy OLD WHARF VILLAGE LLC, CHARLES EDGAR, DAVID DILLON D/B/A AS DILLON REAL ESTATE, & STACEY CURLEY DEFENDANTS PLAINTIFFS RICK YATSENICK AND JOAL YATSENICKS MOTION IN OPPOSITION TO DEFENDANTS’ OLD WHARF VILLAGE LLC & CHARLES EDGAR’S MOTION FOR A JUDGMENT ON THE PLEADINGS WITH SUPPORTING MEMORANDUM OF LAW Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick (“Plaintiffs”), by their Attorney Brian K. Galletta, Esq. in the above captioned action with the following Motion in Opposition to the Defendants’ Old Wharf Village & Charles Edgar’s Motion for a Judgment on the Pleadings. In Support thereof the Plaintiffs offer the following Opposition and supporting Memorandum of law as follows: THE DEFENDANTS’ MOTION FOR A JUDGMENT ON THE PLEADINGS IS NOT PROPERLY BEFORE THIS HONORABLE COURT A motion for judgment on the pleadings raises the question of whether the pleadings present an issue of material fact, and if there is no such issue presented, the question as to whether the moving party is entitled to judgment. If any material fact is in issue, judgment on the pleadings cannot be entered. A motion for a judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain. The effect of a s motion for judgment on the pleadings is to challenge the legal sufficiency of the complaint. Minay: v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 467 N.E.2d 874 (1984). In the instant case has the Defendant repeatedly raised the exact same arguments to test the legal sufficiency of the Plaintiffs’ Verified Complaint where: (1) The Defendant, Charles Edgar as the Developer already moved for Summary Judgment raising the exact same defenses as set forth in this Motion and this Honorable Court declared that there were genuine issues of material fact in dispute; (Docket #18) os we (2) The Defendants Charles Edgar and Old Wharf Village opposed the Plaintiffs’ Motion for a Real Estate Attachment raising the exact same defenses and this Honorable Court found that there was a high likelihood of success on the merits of the Plaintiffs Verified Complaint and granted the Motion; (Docket #37.1) (3) That the Defendants Charles Edgar and Old Wharf Village took an interlocutory appeal of the Plaintiffs real estate attachments, again using the same defenses and, after a full briefing of both the Defendants and the Plaintiffs, the Appeals Court upheld this Honorable Court’s findings of a high likelihood of success on the merits of the Plaintiffs Verified Complaint; (Docket #40) (4) That the Plaintiffs moved for Summary Judgment as to all Counts and once again for the fourth time the Defendants raised the same arguments stated. This Honorable Court stated that although the Plaintiffs have raised some very compelling arguments, there still exists genuine issues of material and that a trial should be marked up as soon as possible. (Docket #43.10) The Court may also consider those facts of which judicial notice can be taken, including the court's records in a related action. Martinez v. Waldstein, 89 Mass. App. Ct. 341, 49 N.E.3d 245 C S (2016); Jarosz v. Palmer, 49 Mass. App. Ct. 834, 733 N.E.2d 164 (2000), judgment aff'd, 436 4 Mass. 526, 766 N.E.2d 482 (2002) In the instant case, the Honorable Justice Rufo, Justice Nickerson, and Justice Carhart all made findings on the sufficiency of the Plaintiffs’ Verified Complaint and found both genuine issues of material fact in dispute and a high likelihood of success on the merits. A judgment on the pleadings is appropriate only where there are no material facts in dispute on the face of the pleadings. Mass. R. Civ. P. 12(c). Clarke v. Metropolitan Dist. Commission, 11 Mass. App. Ct. 955, 417 N.E.2d 47 (1981). Neither a motion for judgment on the pleadings under the applicable rule, nor when converted to a motion for summary judgment under another applicable rule, can be ws granted properly where there is a genuine issue of material fact. Rules of Civil Procedure, Rules 12(c), 56. Canter v. Planning Bd. of Westborough, 7 Mass. App. Ct. 805, 390 N.E.2d 1128 (1979). All parties were ready for a jury trial on October 23, 2017, but the case was never reached because both courtrooms had trials that lasted longer then expected. The Plaintiff, Mrs. Yatsenick, could not wait any longer for a necessary surgery to her rotator cuffs and the case was put over to trial on March 23, 2018. 1. THE EXCULPATORY CLAUSES CONTAINED WITHIN THE PARTIES PURCHASE AND SALE AGREEMENT DOES NOT EXCUSE THE DEFENDANT’S MISREPRESENTATIONS 3 The Plaintiffs were tendered a deed by the Defendant that clearly states that: “The purpose of which the Condominium and each of the units is intended is only for year- round single family residences in each of the units as set forth in the aforesaid Master Deed” (Complaint Exhibit c). The Defendants’ contention in their Motion that the purchase and sale agreement somehow “supersedes the deed” simply is not the law. Buyers have a right to rely on a seller’s express covenants in a deed. Sumner v. Williams 8 Mass. 162 (1862), Gates v. Caldwell 7 Mass. 68 (1810). While the doctrine that acceptance of a deed ordinarily merges, and discharges, all obligations in the purchase and sale agreement, except those specified in the deed, a party to a contract with another cannot claim shelter by a contractual device, such as an exculpatory or merger provision, against claims of misrepresentation or deceit. Greenleaf Arms Realty Trust I LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288-89, 962 N.E.2d 221, 228 (2012). The legal analysis should end there as the Plaintiffs do not need to “go behind” the deed to show that the Plaintiffs bargained to purchase a single-family year-round residence to retire in based on the representations of the Defendant. The Defendants signed the deed which expressly set forth that the intended use of the property as being a single-family year-round residence. The Defendants signed it and are charged as a matter of law to defend the covenants set forth within that deed upon its execution. Sumner v. Ww Williams 8 Mass. 162 (1862), Gates v. Caldwell 7 Mass. 68 (1810). The Defendants first relies on the exculpatory clause in paragraph 25 of the Parties’ standard purchase and sales agreements to escape liability based on any set of facts. Paragraph 25 of the standard boilerplate Purchase and Sale Agreement states in relevant part: “That the BUYER acknowledges that the BUYER has not been influenced to enter into this transaction nor has relied upon any warranties or representations not set forth or incorporated in this agreement or previously made in writing except for the following additional warranties and representations, if any, made by the SELLER or the Broker(s): NONE.” (Complaint Exhibit B at pg. 5) This exculpatory clause is of no help to the Defendants’ plight to avoid liability for the fraudulent or negligent misrepresentations made by the Defendants to the Plaintiffs with regards to the permitted use of the property. The Defendants marketed and held out the unit to the Plaintiffs as single-family year round residency condominiums (Complaint Exhibit A, [] 15) As was the case here, should the Seller disclose material information such as the permitted use of the property, the Seller is under a duty to disclose fully and accurately to the extent of his or her knowledge and this exculpatory clause shall have no effect. Zimmerman v. Kent, 31 Mass. App. Ct. 72 (1991). ¢ The provisions in the purchase and sale agreement that the Plaintiffs accepted the conveyance “as is,” that he “recognize[d] that [s]eller makes no warranties whatsoever,” and that he “has not been influenced to enter into this transaction nor has he relied upon any warranties or representations not set forth in this agreement or previously made in writing” (none was set forth Lu or made) cannot assist the Defendants. Massachusetts case law rejects the assertion of “as is” and like clauses as an defense to allegations of misrepresentation, fraud, deceit or alternatively gross negligent misrepresentation. Sheehy v. Lipton Industries, Inc., 24 Mass. App. Ct. 188, 193-194, N.E.2d (1988) See also Zimmerman v. Kent, 31 Mass. App. Ct. 72, 76-77 & n. 9, 83, N.E.2d (1991), “seller rebuffed buyer's complaint, relying on exculpatory contract language. The buyer sued and won a judgment that both rescinded the sale of a house and awarded substantial damages.”) A boilerplate exculpatory clause will not be enforceable if fraud is involved; it cannot be used to escape liability for misrepresentations that were in fact made to a buyer, and upon which VY / the buyer reasonably relied to his/her detriment in entering into the contract and purchasing the property. DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 806 n.14, 985 N.E.2d 1187, 1196 (2013). Thus, the exculpatory clause relied on in paragraph 25 cannot shield the Defendant in the instant case. Notwithstanding the Greater Boston Real Estate Board purchase and sale agreement standard exculpatory clause, the warranties and representations clause permits reliance on prior written representations not set forth or incorporated in the agreement. The warranties and representation clause of the purchase and sales agreement does not relieve the defendants of liability for written misrepresentations such as the Defendant’s marketing material (Complaint 5 Exhibit A, [] 15) . DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 806, 985 N.E.2d 1187, 1196 (2013). One of the main problems with the Defendants defenses is that the Defendants fails to acknowledge that they are in the business of developing and selling real property to Consumers rather than engaging in simple one-time arm’s length transactions. The Plaintiffs were owed a duty by the Defendants for full and accurate disclosure of exactly what the Defendants were selling and the Plaintiffs had a right to rely on (1) the Defendant Contractor’s written marketing material and the material representations made there in; (2) the Defendant Contractors Agent’s express representations in the multiple real estate listing, (3) and most importantly the language in the Unit Deed drafted, executed, and delivered to the Plaintiffs. (Plaintiff's Verified Complaint Exhibit 1, 1115, and Exhibit C.) LY Furthermore, the Defendants had a duty to disclose any fact which may influence the Plaintiffs to not enter into purchasing the unit the Defendants were developing and selling in the normal course of the Defendants’ business as real estate developers. 940 Code Mass. Regs §3.16. The failure of the Defendants to disclose to the Plaintiffs as Consumers in our Commonwealth that this property was and always will be a commercial motel venture gives rise to a violation of Mass. Gen. L. Ch. 93A §2. 2. THE UNIT DEED TENDERED TO THE PLAINTIFFS BY THE DEFENDANTS ENUMERATES THE PERMISSABLE USE OF THE PROPERTY AND THE USE PROVISIONS INCORPORATED BY REFERENCE IN THE PURCHASE AND SALE AGREEMENT AND THE MASTER DEED DO NOT EXCUSE THE DEFENDANTS’ MISREPRESENTATIONS Mass. Gen. L. Ch. 183A sec. 9(d) states that unit deeds specifically set forth: “A statement of the use for which the unit is intended and the restrictions, if any, on its use” Id. There was no reason for the Plaintiffs to make inquiry as to the permissible zoning use of the condominium as it is set out right in the deed they accepted that was drafted and signed by the Defendants. As stated supra. once again, the unit deed states: 6 “The purpose of which the Condominium and each of the units is intended is only for year-round single family residences in each of the units as set forth in the aforesaid Master Deed” (Complaint, Exhibit C). These representations that are mandated by statute aligns itself with (1) the way the property was marketed by its brochures (Complaint, Exhibit A), (2) The Defendants’ Agent’s Multiple Listing Sheet, (Complaint, Paragraph 15-17), (3) and the representations made by the Defendants to the Plaintiffs during the viewings the Plaintiffs had with them on the property. (Complaint, Paragraph # 2-17). The Plaintiff had no obligation to check on the veracity of the false representations made with regard to the zoning use. The recipient ofa fraudulent misrepresentation of fact is justified in relying on its truth, although he might have ascertained the falsity of the representation had he made an investigation. Yorke v. Taylor, 332 Mass. at 374. Henderson v. V4 D'Annolfo, 15 Mass. App. Ct. 413 , 423 (1983). Restatement (Second) of Torts Section 540. The representations were both factual and material. Pursuant to the Mass. Gen. L. ch. 93A claim set forth in the Plaintiffs Verified Complaint, 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 Sheehy v. Lipton Indus. Inc., 24 Mass.App.Ct. at 195; Mongeau v. Boutelle, 10 Mass.App.Ct. 246, 248-49 (1980). The Defendants cite to the Plaintiffs Counsel’s duty to negate any misdeeds on the part of the Defendants. Even arguendo, if Plaintiffs’ Counsel was negligent —~ in not examining the special permits outside of the Master Deed, Edgar and Old Wharf cannot use any implied negligence on the part of Plaintiffs’ Counsel to escape liability for their own transgressions. 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 tortfeasor.”). Even more troubling with the unit deed tendered to the Plaintiffs is the fact that Mass. Gen. L. ch. 183A, sec. 9(d) specifically mandates full disclosure of any restrictions on the use of the property. The Defendants omitted all information with regards to the fact that the zoning constraints contained in two special permits issued by the Town of Dennis limited the property to that of a Commercial Motel.’ The Defendants had an obligation to specifically recite these constraints in the unit deed. The Unit Deed tendered to the Plaintiffs that the Defendants drafted states that the use is for single family year round residential condominiums as set forth in the aforesaid Master Deed. The Defendants also drafted the Master Deed which totally contradicts the unit deed by making reference to two special permits that someone would have to go outside of the Master Deed and review to become enlightened that they are dealing with a building which use is limited to a SY commercial motel room. What is clearly enumerated on the Unit Deed is totally contradicted by what is “incorporated by reference” and hidden in the purchase and sales agreement and the Master Deed. Ifa contract has terms that are ambiguous, uncertain, or equivocal in meaning, the intent of the parties is a question of fact to be determined at trial. Browning-Ferris Industries, Inc. v. Casella Waste Management of Massachusetts, Inc., 79 Mass. App. Ct. 300, 307, 945 N.E.2d 964, 971 (2011). Indeed, the party who wrote the language had the capacity and opportunity for clear expression and should bear the detriment of any unclear expression Air Plum Island, Inc. v. Society For Preservation of New England Antiquities, 70 Mass. App. Ct. 246, 253, 873 N.E.2d 1159, 1165 _ (2007). The Plaintiffs allege that the ambiguities and contradictions were done by the Defendants in an effort to induce them to purchase as set forth in the Plaintiffs Complaint. (Complaint Paragraphs 35-60. 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. 93A §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. 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 in the business of building and selling real property in the Commonwealth of Massachusetts, Edgar and Old Wharf had an affirmative duty to clearly set forth to the Plaintiffs 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 and Old Wharf further failed to complete their contractual obligations by delivering a unit that can in fact be used the way they represented it. The contractual obligations set forth in the deed to deliver a single family year round residential condominium cannot be satisfied due to the zoning constrictions on the property and the Plaintiffs are entitled to rescission as a remedy for the breach of contract by the Defendants as well as the foreseeable consequential damages the ~ Plaintiffs incurred. 3 THE DEFENDANTS’ CAN NOT NOW MISINTERPERT THE WORDS USED TO DESCRIBE THE PERMISSABLE USE IN THE UNIT DEED. The Defendants further argue that “Single Family year round residential use” as set forth in the Unit Deed somehow can be interpreted as fitting within the same meaning and use as a commercial motel. The Defendants cite 521 CMR 8:00 as controlling. A review of 521 CMR 8:00 does in fact carve out an exception to allow Owners of transit lodging facilities to occupy and reside in their unit as a residence. Where the Defendants fall short is that they do not disclose to this Honorable. Court the full exemption which has two prongs—the commercial dwelling must: a. Contain five or fewer beds or contains five or fewer rooms for rent or hire; AND; b. Is actually occupied as a residence by the proprietor of the establishment. It would be reasonable to conclude this exception was for owner occupied bed and breakfast type motels and the exemption is not applicable to the facts of this case. The Unit Deed says that the use is: (a) Single family—meaning non-transient and not multifamily; (b) Year round---meaning as opposed to transient or seasonal use; (c) Residences—meaning where one can live and Homestead the property as opposed to Commercial Property; (d) Condominium—nmeaning a unit where one has exclusive use of a defined area as opposed to acommercial motel room which must be kept in constant transition as defined by Mass. Gen. Law ch. 140 Sec. 12A and further defined by Dennis Board of Health as transient occupancy for less then 30 days. A review of the Answer proffered by the Defendants to the Plaintiffs 93A demand letter gives an enlighten view of genuine issues of material fact where the Defendants states. “[t]hat a year round residence was never discussed” ~ It begs the question as how the Defendants could take this position when they gave the Plaintiffs a deed that specifically states just that---single family year round residences? (Plaintiffs Verified Complaint, Exhibit D, last page). The Defendants simply fail to understand the distinction between use and ownership when it comes to Condominiums. Pursuant to Mass. Gen. L. ch. 183A anyone can condominiumize any property including their house for example for the purposes of ownership. But when it comes to use, zoning relief must be obtained by the Town pursuant to their by-laws to actually use the property. While towns in our Commonwealth cannot control ownership, they can control use with zoning requirements. Goldman v. Town of Dennis, 375 Mass. 197, 199, 375 N.E.2d 1212, 1213 (1978). The Plaintiffs have always contended that the Defendants bought the motel at 405 Old Wharf Road out of a foreclosure sale, drafted a Master Deed and recorded it along with a Trust and started selling units, advertising them as year round residential condominiums without apply for or being granted the requisite zoning relief from the Town of Dennis. In the instant case the constraints of the special permits on the property mandating it to be a motel renders the use non-existent when the motel is condominiumized and a unit owner has no control over the actual workings of the motel itself. “[t]here is a difference between economic lack of marketability, which concerns conditions that affect the use of land, and title marketability, 10 which relates to defects affecting legally recognized rights and incidents of ownership. ... An individual can hold clear title to a parcel of land, although the same parcel is valueless or considered economically unmarketable because of some restriction or regulation on its use. Somerset Sav. Bank v. Chicago Title Ins. Co., 420 Mass. 422, 428, 649 N.E.2d 1123 (1995) The Plaintiffs have not been able to use the property because they were told by the Town Planner, Daniel Fortier that the unit they bought was a motel room and that they could not reside in and that the property did not even have a permit to operate as a motel. This is why the Plaintiffs have to this day never occupied the unit. Nor could they rent it out on their own because the motel which this unit resides in is not within their dominion or control to operate even if they wanted to be in the business of inn keeping for transient guests. To the contrary, the Plaintiffs are not innkeepers. They are simply a retired couple. SY 4, THE DEFENDANTS HAVE MISSTATED TO THIS HONORABLE COURT THE DAMAGES ALLEGED IN EACH AND EVERY COUNT IN THE PLAINTIFF’S COMPLAINT The Defendants have misstated in their Motion to this Honorable Court that the Plaintiffs in their Verified Complaint have not set forth any damages. To the contrary, the Plaintiffs have a. alleged that they tendered to the Defendants $220,000 dollars in cash for a unit that the Town told them they could not reside in and must be rented out as a motel room to any transient person that comes along through the office at the motel. The Plaintiffs have sought rescission and a return of their money in their Complaint as well as recovery for ongoing monthly mortgage payments on the amount they borrowed to purchase the property, interest, association fees, taxes and all other reasonably foreseeable consequential damages which at that time totaled $310,000.00. (Complaint Paragraph 41, 49, 60). WHEREFORE, the Plaintiffs Rick Yatsenick and Joal Yatsenick reallege each averment within their Verified Complaint and respectfully request this Honorable Court to make findings and rule: 11 (1) The Plaintiffs have demonstrated genuine issues of material fact with regards to each Count within their Complaint; (2) That the Defendants have offered no affirmative defenses that would give rise to a Judgment on the Pleadings; (3) That the Defendants Motion for a Judgment on the Pleadings be denied and that the Case proceed to trial as scheduled. Respectfully Submitted, Brian K. Galletta B.B.O. #566078 Attorney for the Plaintiffs Rick Yatsenick and Joal Yatsenick 25 Lady Slipper Drive Plymouth, MA 02360 Phone: (508) 591-7303 Fax: (508) 746-1817 DATE: January 27, 2018 Email: bkglegal@gmail.com \ ~ CERTIFICATE OF SERVICE Thereby certify that a true copy of the forgoing document was served upon all known parties herein by causing a copy to be delivered by first class prepaid USPS mail on this 27" day of January 2018.. Brian K. Galletta, Esq. B.B.O. #566078 Attorney for the Plaintiffs Rick Yatsenick and Joal Yatsenick 25 Lady Slipper Drive Plymouth, MA 02360 12 Phone: (508) 591-7303 Fax: (508) 746-1817 DATE: January 27, 2018 Email: bkglegal@gmail.com - 13