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Ss ) URT
wh ier E,Ss
FILED] NOV 28 2018
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT _4ag/L- Hikes Clerk
BARNSTABLE, ss SUPERIOR COURT
Docket No. BACV2013-00125
Rick and Joal Yatsenick, 1/24] os
Plaintifis Oowell.
v. 4, Le Couvt (Lildea,9)
Old Wharf Village, LLC and
Charles Edgar,
Defendants 0 t 4) 3
DEFENDANTS’ MOTION FOR DIRECTED VERDICT AS TO
BREACH OF CONTRACT CLAIM
The defendants request that the Court direct a verdict against the plaintiffs on the breach
of contract claim against Defendant Old Wharf Village pursuant to Mass. R. Civ. P. 50(a). As
grounds therefore, the Defendant states the following:
1. The Plaintiffs have asserted that the breach of contract claim is based on their
understanding that the description of the use of Unit 204 in the deed propounded
by the defendants formed a contract obligation or a warranty as to the use of the: «
property separate and apart from the consideration they paid for the property.
2. The test on a motion for directed verdict is whether evidence taken in light most
favorable to plaintiff, without considering its weight or credibility, was adequatesto
support inference imposing liability on defendant. Sahagan v. Commonwealth, 25
Mass. App. Ct 953 (1988); Gynan v. Jeep Corp., 13 Mass. App. 504 (1982) (same). A :
judge, in his discretion, may direct a verdict even before the close of the plaintiff's '
evidence. See Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428 (1987)
(judge directed verdict after opening statement).
13. The plaintiffs claims fail as a matter of law because the “acceptance of a deed of
conveyance of land from one who has previously contracted to sell it, discharges the
contractual duties of the seller to the party so accepting except such [contractual
duties] as are embodied in the deed.”' Pybusv.Grasso, 317 Mass. 716, 717 (1945),
citing Restatement of Contracts, § 413. See also Holihan v. Rabenius Builders, Inc., 355
Mass. 639, 642 (1969); Lipson v. Southgate Park Corp., 345 Mass. 621, 625 (1963);
Bressel v. Jolicoeur, 34 Mass. App. Ct. 205, 209 (1993); Solomonv. Birger, 19 Mass.
App. Ct. 634, 641 (1985). This doctrine “has been applied in a number of cases
where the defect in the conveyance consists of a failure to convey all the land
contracted for as well as in cases where the defect is in the title to the land actually
conveyed.” Pybus, 317 Mass. at 717-18 (citations omitted); Holihan, 355 Mass. at
642 (the doctrine of merger or waiver by acceptance of the deed “applies to defects in
the conveyance itself, such as failure to convey all the area contracted for as well as
to defects in the title”).? If such significant defects as failure to convey all the land
contracted for discharges the seller’s obligations, surely the seller’s obligations are
also discharged where the defect is far more minor, as in the case here, in which the
defect is merely an incorrect description of the use of the property.
4. The deed provided to the plaintiffs by the Defendants was made with “quitclaim
covenants.” A deed of quitclaim and release shall be sufficient to convey all the
estate which could lawfully be conveyed by a deed of bargain and sale. G.L. c. 183 §
2. Quitclaim covenants include that the grantor and his heirs, executors and
1 Promises in the original agreement which are additional or collateral to the main promise to convey the
land and are not inconsistent with the deed as given—such as a holdback agreement-- are not necessarily
merged in the deed, but may survive it and be enforced after the deed is given. Pybus, 317 Mass. at 719.
2 The Purchase and Sale Agreement also states that “Acceptance of a deed by the Buyer...shall be deemed a
full performance and discharge of every agreement and obligation...” Complaint, Exhibit B, Purchase and Sale
Agreement at ff 13.
2administrators shall warrant and defend the same to the grantee and his heirs and
assigns forever against the lawful claims and demands of all persons claiming by,
through or under the grantor, but against none other. G.L. c. 183 §§ 11, 173
5. It is undisputed that the Defendants did give the Plaintiffs all the estate that could
lawfully be conveyed by them. The description of the permitted use of the unit in the
deed therefore created no warranty that the land conveyed.
6. The Plaintiffs’ claim of breach of contract based on the incorrect description of the
use of the property in the deed therefore fails as a matter of law.
WHEREFORE, the Defendants request that the court direct a verdict in favor of Defendant Old
Wharf Village on the Breach of Contract count.4
DATED: November 28, 2018
Respectfully submitted,
Defendants,
By Their Attorneys,
-
x im BBO# 561909
Lynne MrChiodo, BBO# 657428
DP Law
619 High Street, Suite 103
Dedham, MA 02026
(781) 326-6320 (voice)
(781) 326-6321 (fax)
dp@djunaperkinslaw.com
\chiodo@djunaperkinslaw.com
3 A warranty deed warrants only that the grantor shall defend the grantee’s right of ownership against all
persons, G.L, c. 183 § 10. It does not warrant all statements made in the deed.
Should the court deny the motion, the Defendant requests leave to amend its answer to include a defense of
mistake. Mass. R. Civ. P. 15 (a), (b).
3
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Ss ) URT wh ier E,Ss FILED] NOV 28 2018 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT _4ag/L- Hikes Clerk BARNSTABLE, ss SUPERIOR COURT Docket No. BACV2013-00125 Rick and Joal Yatsenick, 1/24] os Plaintifis Oowell. v. 4, Le Couvt (Lildea,9) Old Wharf Village, LLC and Charles Edgar, Defendants 0 t 4) 3 DEFENDANTS’ MOTION FOR DIRECTED VERDICT AS TO BREACH OF CONTRACT CLAIM The defendants request that the Court direct a verdict against the plaintiffs on the breach of contract claim against Defendant Old Wharf Village pursuant to Mass. R. Civ. P. 50(a). As grounds therefore, the Defendant states the following: 1. The Plaintiffs have asserted that the breach of contract claim is based on their understanding that the description of the use of Unit 204 in the deed propounded by the defendants formed a contract obligation or a warranty as to the use of the: « property separate and apart from the consideration they paid for the property. 2. The test on a motion for directed verdict is whether evidence taken in light most favorable to plaintiff, without considering its weight or credibility, was adequatesto support inference imposing liability on defendant. Sahagan v. Commonwealth, 25 Mass. App. Ct 953 (1988); Gynan v. Jeep Corp., 13 Mass. App. 504 (1982) (same). A : judge, in his discretion, may direct a verdict even before the close of the plaintiff's ' evidence. See Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428 (1987) (judge directed verdict after opening statement). 13. The plaintiffs claims fail as a matter of law because the “acceptance of a deed of conveyance of land from one who has previously contracted to sell it, discharges the contractual duties of the seller to the party so accepting except such [contractual duties] as are embodied in the deed.”' Pybusv.Grasso, 317 Mass. 716, 717 (1945), citing Restatement of Contracts, § 413. See also Holihan v. Rabenius Builders, Inc., 355 Mass. 639, 642 (1969); Lipson v. Southgate Park Corp., 345 Mass. 621, 625 (1963); Bressel v. Jolicoeur, 34 Mass. App. Ct. 205, 209 (1993); Solomonv. Birger, 19 Mass. App. Ct. 634, 641 (1985). This doctrine “has been applied in a number of cases where the defect in the conveyance consists of a failure to convey all the land contracted for as well as in cases where the defect is in the title to the land actually conveyed.” Pybus, 317 Mass. at 717-18 (citations omitted); Holihan, 355 Mass. at 642 (the doctrine of merger or waiver by acceptance of the deed “applies to defects in the conveyance itself, such as failure to convey all the area contracted for as well as to defects in the title”).? If such significant defects as failure to convey all the land contracted for discharges the seller’s obligations, surely the seller’s obligations are also discharged where the defect is far more minor, as in the case here, in which the defect is merely an incorrect description of the use of the property. 4. The deed provided to the plaintiffs by the Defendants was made with “quitclaim covenants.” A deed of quitclaim and release shall be sufficient to convey all the estate which could lawfully be conveyed by a deed of bargain and sale. G.L. c. 183 § 2. Quitclaim covenants include that the grantor and his heirs, executors and 1 Promises in the original agreement which are additional or collateral to the main promise to convey the land and are not inconsistent with the deed as given—such as a holdback agreement-- are not necessarily merged in the deed, but may survive it and be enforced after the deed is given. Pybus, 317 Mass. at 719. 2 The Purchase and Sale Agreement also states that “Acceptance of a deed by the Buyer...shall be deemed a full performance and discharge of every agreement and obligation...” Complaint, Exhibit B, Purchase and Sale Agreement at ff 13. 2administrators shall warrant and defend the same to the grantee and his heirs and assigns forever against the lawful claims and demands of all persons claiming by, through or under the grantor, but against none other. G.L. c. 183 §§ 11, 173 5. It is undisputed that the Defendants did give the Plaintiffs all the estate that could lawfully be conveyed by them. The description of the permitted use of the unit in the deed therefore created no warranty that the land conveyed. 6. The Plaintiffs’ claim of breach of contract based on the incorrect description of the use of the property in the deed therefore fails as a matter of law. WHEREFORE, the Defendants request that the court direct a verdict in favor of Defendant Old Wharf Village on the Breach of Contract count.4 DATED: November 28, 2018 Respectfully submitted, Defendants, By Their Attorneys, - x im BBO# 561909 Lynne MrChiodo, BBO# 657428 DP Law 619 High Street, Suite 103 Dedham, MA 02026 (781) 326-6320 (voice) (781) 326-6321 (fax) dp@djunaperkinslaw.com \chiodo@djunaperkinslaw.com 3 A warranty deed warrants only that the grantor shall defend the grantee’s right of ownership against all persons, G.L, c. 183 § 10. It does not warrant all statements made in the deed. Should the court deny the motion, the Defendant requests leave to amend its answer to include a defense of mistake. Mass. R. Civ. P. 15 (a), (b). 3