Motion,Ex Parte: Yatsenick, Rick et al vs. Old Wharf Village LLC et al

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                                COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT

RICK YATSENICK and JOAL
YATSENICK.

OLD WHARF VILLAGE, LLC,
CHARLES EDGAR, DAVID DILLON
D/B/A DILLON REAL ESTATE, and
STACEY CURLEY,

CIVIL ACTION NO. 1372CV00125

 

Plaintiffs,

 

Defendants.

eee SS Se were

a

Novy

HLAINTIFES’ RULE 9A PACKAGE PURSUANT TO MASS R. SUPP. CT. 9A(b)(2)

comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick, by and through counsel and

respectfully submits this list of documents being filed with this Honorable Court pursuant to

Rul

 

9A:

- Plaintiffs’ Motion for a New Trial Pursuant to Mass R. Civ P. 59(a);

. Plaintiffs’ Request for a Hearing on their Motion for a New Trial;

. Plaintiffs’ Affidavit in Support of their Motion for a New Trial;

. Defendants’ Motion in Opposition to the Plaintiffs’ Motion for a New Trial;
. Plaintiffs’ Reply Brief to Defendants’ Opposition;

. Plaintiffs’ Affidavit in Support of their Reply Brief:

. Plaintiffs’ Affidavit of Compliance with Mass. R. Supp. Ct. 9A and

. Certificate of Service.Dece

Ther
all kr
th day

mber 27, 2018

Respectfully Submitted,

The Plaintiffs by their Attorneys:

Brian K. = letta, Esq.

B.B.O. #566078

25 Lady Slipper Drive
Plymouth, MA 02360

Phone: (508) 591-7303

Fax: (508) 746-1817
Email: bkglegal@gmail.com

Ot A Chom gf
Kevin F. Bowen, Esq

BBO# 051450

395 Smith Street
Providence, RI 02908
(401) 831-1600

Fax: (401) 831-0129
kbowen@bbglaw.us

CERTIFICATE OF SERVICE

eby certify that a true copy of the forgoing document was served upon counsel of record for
nown parties herein by causing a copy to be delivered by first class mail this 27

of December, 2018.

 

Brian K.

B.B.O. #566078

25 Lady Slipper Drive
Plymouth, MA 02360

Phone: (508) 591-7303

Fax: (508) 746-1817
Email: bkglegal@gmail.comcon ASSACHUSETTS

LE, 8S

 

BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT

Filed} DEC 97 2018 ACTION NO. 1372CV00125

 

 

 

 

 

RICK YATSENICK an
YATISENICK
Plaintiffs,

OLD WHARF VILLAGE, LLC,
CHARLES EDGAR, DAVID DILLON
D/B/A DILLON REAL ESTATE, and
STACEY CURLEY,

Defendants.

ee

)
)
)
)
)
)
)
)
)
)

PLAINTIFFS’ MOTION FOR A NEW TRIAL PURSUANT TO MASS. R. CIV. P. 59(a)
WITH SUPPORTING MEMORANDUM OF LAW

Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick, by and through counsel, and
respectfully requests this Honorable Court to grant their Motion for a New Trial pursuant to Mass.
R. Civ. P. 59 in the above captioned action. As grounds for the motion for a new trial, the Plaintiffs
proffers their memorandum of law as follows:

I THE PLAINTIFFS WERE DEPRIVED OF THEIR CONSTITUTIONAL
RIGHT TO A JURY TRIAL BY THE COURT’S FAILURE TO ACCURATELY

CHARGE THE JURY, BOTH FACTUALLY AND LEGALLY, IN REGARDS
TO THE PLAINTIFFS’ BREACH OF CONTRACT CLAIM

Pursuant to Mass. R. Civ. P. 38(a) the right to a trial by jury as declared by Part 1, Article
15 of the Constitution of this Commonwealth and as set forth in subsection B, any party may
demand a trial by jury on an issue triable of right by a jury. A judge may not unilaterally amend

the pleadings of a party. Indeed, this Commonwealth has found that serious problems are createdwhen

Mass

ever a judge bases a decision on an issue that is not before the court. Messina v. Scheft, 20

-App.Ct. 945, 480 N.E.2d 53 (1985). It is well established in this Commonwealth that parties

are entitled to an adequate and accurate statement of the law with any charge to a jury. Hughes v.

Whiting. 276 Mass. 76, 176 N.E. 812 (Mass., 1931). Here, the Court deprived the Plaintiffs of

their

- deed

comp

right to an adequate and accurate statement of the law by failing to instruct the jury that the
was the contract that the Plaintiffs alleged was breached.
In the instant case, the Plaintiffs claim that since the inception, of the filing of their

laint, they have consistently set forth the allegation in Count 4 that their breach of contract

action against the Defendants was for a breach of contract on the face of the deed they received

for th

face

e subject property. At no point in time have the Plaintiffs ever attempted to “go behind” the

f the deed and in any way, shape, or mannerism resurrect the Purchase and Sale Agreement

for the purposes of supporting their breach of contract claim. Their complaint and any and all

subsequent pleadings and motions set forth the proposition that the deed tendered to them by the

Defer

forth

ndants was fatal upon delivery because the Defendants had no right to convey the use as set

in the deed. (See Exhibit 1: Excerpts of Plaintiffs’ Pleadings dating back to the Complaint).

See also Locke v. Hale, 165 Mass. 20, 42 N.E. 331 (1895); Merrifield v. Cobleigh, 58 Mass. 178,

4 Cu:

befor

 

h 178 (1849).
The legal and factual sufficiency of the breach of contract claim was tested numerous times
fe numerous judges:

Defendants’ Motion for Summary Judgment (Hon. J. Nickerson);

Granting Plaintiffs’ Motion for a Real Estate Attachment (Hon. J. Ruffo);

Interlocutory Appeal to the Massachusetts Appeals Court fully briefed and affirming
Plaintiffs’ Real Estate Attachment (Hon. J. Carhart);

Plaintiffs’ Motion for Summary Judgement (Hon. J. Ruffo);

Defendants’ Motion for Judgment on the Pleadings (Hon. J. Pasquale)

2to be

is the

Defendants’ Motion for Directed Verdict as to the breach of contract claim (Hon. J. Gildea)
The use provision set forth in the deed tendered by the Defendants was statutorily mandated

declared pursuant to Mass. G. L. ch. 183A, sec. 9(d). The problem with the deed on its face

use provision proffered by the Defendants as that of a single family year round residential

condominium does not comport with the use restrictions as‘set forth in the Master Deed. This

violates Mass. G. L. ch. 183A sec. 4(1). The deed was fatal upon delivery because the use

requirements in the deed not only failed to comply with the use provisions as set forth in the Master

Deed

comp

, but also pursuant to Mass. G. L. ch. 183A sec. 4(3) which mandates the Plaintiffs must

ly at all times with the provisions set forth in both their deed and the Master Deed, which is

a legal impossibility.

unit

Absent further zoning relief any single family year round residential use as set forth in the

leed would violate the zoning restrictions of the Town of Dennis as well as the use provisions

within the Master Deed. The Plaintiffs have always alleged within their Complaint and throughout

the ehtire course of litigation that the breach of contract was on the deed and the Defendants have

recen

amen

tly countered with the claim of mistake. This is readily shown by the Defendants’ motion to

id their pleadings to add mistake as an affirmative defense to the language in the deed. (See

Exhibit 2). The Defendants maintained at trial that it was their counsel who mistakenly inserted

the “

the b

ingle family year round residential” use in the deed. The Defendants themselves recognized
reach of contract by their admission that the offending language is a mistake.

During the trial the Court made a ruling from the bench that the deed was in fact a contract

a party can sue upon. In support of this proposition, the Plaintiffs proffered two memoranda of law

to the

Court regarding the deed as a contract. (See Exhibits 3 and 4). Despite all the consistent

pleadings regarding the Plaintiffs’ breach of contract claim on the face of the deed, this Honorable

Court after close of the evidence, emailed to the parties the proposed jury instructions that

 

3mandated a totally different theory of the Plaintiffs’ breach of contract claim. These jury

instru

and p

ctions stated that it was the Plaintiffs’ position that they were trying to go behind the deed

ierce the exculpatory clause contained within the Purchase and Sale Agreement rather than

base {their breach of contract claim on the face of the deed. The Court farther mandated that the

only

ay the jury could find that the Defendant breached their contract with the Plaintiffs was if

the jury found that the Plaintiffs relied on a Multiple Listing Sheet.

The Court instructed the jury as follows:

The written purchase and sale agreement, which is in evidence as Exhibit 7,
included the following clause at Paragraph 25: “The Buyer[s] acknowledge that
[they have] not been influenced to enter into this transaction, [nor have they] relied
upon any warranties or representations not set forth or incorporated into this
agreement or previously made in writing.”

This provision may permit Buyers to rely on prior written representations not set
forth or incorporated in the written purchase and sale agreement. The Plaintiffs
maintain that they relied upon the MLS Listing Sheet for Unit 102 that has been
introduced into evidence as Exhibit 2. They claim this listing sheet constitute a
written representation previously made in writing. It is for the jury to decide if the
MLS Listing Sheet constitutes a written representation previously made in writing.

Uf the jury finds that the MLS Listing Sheet constitutes a written representation
previously made in writing by the Defendants to the Plaintiffs, Old Wharf Village
is not entitled to rely upon Paragraph 25 of Exhibit 7 as a defense to the breach of
contract claim. If the jury finds that the MLS Listing Sheet does not constitute a
written representation previously made in writing by the Defendants to the
Plaintiffs, Old Wharf Village is entitled to rely upon Paragraph 25 of Exhibit 7 as
a defense to the breach of contract claim.

See Relevant Excerpt of Jury Instructions hereto attached as Exhibit 5.
Compare Plaintiffs’ Complaint Count 4 Breach of Contract Averments:

(65) That the Locus was in fact not a single family year round residential
condominium, but rather a "room" in a commercial motel;

(66) That the Defendant breached its contractual obligation with the Plaintiff to
deliver a deed for full ownership rights, use, and possession of a single family year
round residential Condominium and has been unjustly enriched by the
$223,000.00 in consideration paid in cash by the Plaintiffs;Exhil

(67) — That at the time of the conveyance on June 21, 2010, the Locus was a
defunct motel;

(68) That at no point in time, both then and now did or does the Defendant have
the right to convey a single family year round residential condominium pursuant to
Mass. Gen L. ch. 183A as reflected in the record title and the special permits
issued by the Town of Dennis;

(69) That the Plaintiffs attack the face of the Deed tendered by Defendant, Old
Wharf Village, LLC and states that Old Wharf Village LLC breached "in toto’
its contractual obligation it owed to deliver a single family year round
residential condominium-—-or for that matter any interest in real estate.

See the relevant excerpts from the Plaintiffs Verified Complaint hereto attached as
bit 1.

The Plaintiffs immediately moved by way of written motion to reform the jury instructions

to point out the offending language as being inaccurate both factually and legally. (See Exhibit 6,

Plaintiffs’ Motion to Reform and Supplement the Jury Instructions). The Plaintiffs argued to the

Court that it was never. their position to go behind the deed nor did the exculpatory clause or

reliance on the Multiple Listing Sheet ever give rise to their breach of contract claim.

To the contrary, as a matter of law an exculpatory clause and reliance on prior written

statements is a defense to an action sounding in tort and has no legitimate office sitting in a breach

of co

ntract claim. Sheehy v. Lipton Industries, Inc., 24, Mass. App. Ct. 188, 193, 194, 507 N.E.2d

78 (1987). The breach of contract claim is separate and distinct from all negligent or intentional

misrepresentation claims and in no way implicates reliance. The Defendants had no right to tender

adee

d for single family residential use, as stated in the unit deed. By the Court’s failure to reform

the jury instructions to correctly reflect the Plaintiffs’ allegations as pled and to further accurately

charge the jury with the correct law the Court effectively never allowed the Plaintiffs’ breach of

contr,

act claim to be heard by the jury. This violated the constitutional provisions set forth in Mass.

R. Civ. P. 38(a) as discussed supra.was
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and

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Over objection and denial of the Plaintiffs’ motion to reform the jury instructions, the jury
charged to being constrained to only looking at Paragraph. 25 of the Purchase and Sale
ement (Trial Exhibit 7) and the Multiple Listing Sheet (Trial Exhibit 2) as the determinative
dispositive method for the jury to arrive at a conclusion as to whether the contract was
hed or not. Both of these documents were totally irrelevant to the Plaintiffs’ breach of contract
. (See Exhibit 7, relevant excerpt of the Purchase and Sale Agreement, and Exhibit 8, the
Listing Sheet). This charge severely prejudiced the Plaintiffs because of its absolute failure
Struct the jury as set forth in the Plaintiffs’ averments within their complaint. Under no
mstances could a jury ever find a breach of contract on the deed when limited to just a review
boilerplate exculpatory clause contained in a standard Purchase and Sale Agreement and a
ple Listing Sheet as a prior writing. This is not consistent with the Plaintiffs’ pleadings, the
ndants’ pleadings, the trial memoranda filed or the live testimony elicited to this Honorable
at trial. In fact, the Defendants’ defense of mistake is in reference to the language in the
not the Purchase and Sale Agreement. (See Exhibit 2), By the improper charge to the jury
lourt effectively deprived their count from ever seeing a jury.
The Plaintiff brought the errors in the jury instructions to the Court’s attention and

sted that the jury instructions be reformed. Over objection the Court refused to do so and :

denied the Plaintiffs’ motion. Absent the granting of a new trial, the error not being rectified

entitl
1091

(199

es the Plaintiffs to appellate relief. Comeau v. Currier 35 Mass App. Ct. 109, 111, 616 N.E.2d
1093 (1993); Grant v. Lewis/Boyle Inc., 408 Mass. 269, 275-276, 557 N.E.2d 1136, 1140
).

For the foregoing reasons set forth supra the Plaintiffs respectfully request this Court to

grant; them a new trial that allows them to properly place their breach of contract claim before ajury
regar;

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contr,
secur
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and i

he way it was pled and further to properly have the jury instructions cite the correct law with
‘ds to breach of contract.

Jury Instructions Prejudiced the Plaintiffs as they also Infected The Plaintiffs’ 93A.
nt

Furthermore, the erroneous jury instructions foreclosed any relief that would have been
ded to the Plaintiffs in their 93A count. This Commonwealth has established that a breach of
act may give rise to a violation of Chapter 93A if the breach was known and was intended to
e "unbargained-for benefits" to the detriment of the other party. Zabin v. Picciotto, 896
'd 937, 73 Mass. App. Ct. 141 (2008). In the instant case the Defendants knew of the breach

ntended to gain substantial “unbargained-for benefits” to the detriment of the Plaintiffs. The

live testimony of the Defendant, Charles Edgar, revealed that he knew that the first two deeds

prepa

ired were defective with regards to the disclosed use and he further testified that he fired his

attorney because of the defects in the deeds which happened long before the Plaintiffs’ 93A

demand letter and subsequent complaint which was filed thereafter. The Defendant, by his own

admission, knew of the defects yet failed to address them within the responses to the 93A demand

letters. (and Defendants’ 93A response letters, Exhibits, 9 and 10). This clearly shows that the

Defendant knew of the breach of contract but the improper jury instructions foreclosed the jury

from

making such a finding.

This further foreclosed the jury from making a finding with regards to the Defendants’

failure to give a reasonable response to their 93A demand letters. If the Court properly charged the

jury

hey could have found that the intentional breach of contract not only gave rise to a violation

of Chapter 93A, but also that the Defendants failed to make a reasonable offer of settlement in

their

and

93A response letters. This is supported by the fact that the jury found that both Charles Edgar

Id Wharf Village LLC did in fact fail to tender a reasonable offer of settlement in their 93Aresponse letters. (See Special Verdict Form, Response to Question 18, marked as Exhibit 11). The

Defendants made no mention of mistake in their 93A response letters. The jury could reasonably

find that if the Defendants raise as a defense that their counsel negligently inserted the offensive

language into the deed, rendering the deed fatal upon delivery, that the Defendants should have

states
deed|
refers
to thé
such,

legal

claim

whet}

allow

d in their response to the Plaintiffs’ 93A demand letter that the language contained within the
is somehow a mistake. However, a fair reading of the 93A letter responses is devoid of any
ence to mistake. If this was truly a mistake, then one would obviously expect to find language
at effect in the response to the 93A demand letter but the jury was foreclosed from making
fa determination because of the Court’s failure to instruct the jury properly both factually and
ly with regards to the Plaintiffs’ breach of contract claim.
Wherefore, the Plaintiffs respectfully requests this Honorable Court to make findings and

that the Plaintiffs are entitled to a new trial on their breach of contract claim and the 93A
s that flowed as a natural consequenice of the intentional breach of contract.

THE JURY’S FINDING THAT THERE WAS NO VIOLATION OF CHAPTER

93A WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE,

ESTABLISHED LAW, AND THE JURY’S OWN FACTUAL FINDINGS.
The standard that a trial judge is to apply on a motion for a new trial in a civil case is
her the verdict is so markedly against the weight of the evidence as to suggest that the jurors

ed themselves to be misled, were swept away by bias or prejudice, or for a combination of

reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion.

W.

118

liver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 748, 616 N.E.2d
1993). Indeed, this Commonwealth has found that a new trial is proper if the jury failed to

exercise an honest and reasonable judgment in accordance with the principles of law applicable to

the p

arties’ claims. Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 536 N.E.2d 344,(198

9). It is further established in this Commonwealth that reliance on a misrepresentation is not

anecessary factor for a Plaintiff to establish a violation of Chapter 93A. International Fidelity Ins.

Co.

. Wilson, 387 Mass. 841, 443 N.E.2d 1308 (1983). In the instant case the weight of the

 

evidence as supported by the jury’s findings gave rise to multiple violations of Mass. G. L. ch.

93A

abov

in th

In the Special Verdict Form (attached as Exhibit 11) the Jury found that:

Old Wharf Village LLC misrepresented a material fact to the Plaintiffs in their purchase of
Unit 204 (See Special Verdict Form, Question #3);

2, Both Charles Edgar and Old Wharf Village LLC knew or recklessly disregarded the truth

or falsity of the statement (See Special Verdict Form, Question #4);

Both Charles Edgar and Old Wharf Village LLC intended the Plaintiffs to rely on the
misrepresentations in making their decision (See Special Verdict Form, Question #5);

4, The Plaintiffs were injured and that the Defendants failed to make a written tender of

settlement that was reasonable in relation to the injury actually suffered (See Special
Verdict Form, Question #18).

Despite, the overwhelming weight of the evidence and the jury’s factual findings as stated
e the jury still found that the Defendants did not commit an unfair or deceptive act or practice

eir dealings with the Plaintiffs. (See Exhibit 11, Special Verdict Form, Question #13). This

finding is not supported by the law and the jury failed to exercise an honest and reasonable

Vv.

nL in accordance with the principles of law applicable to the parties’ claims. See Robertson

ston Snow & Ely Bartlett, 404 Mass. 515, 536 N.E.2d 344, (1989).

The overwhelming weight of the evidence presented in the case and the jury’s own findings

point] to direct irrefutable violations of Chapter 93A according to the Office of the Attorney

General which the jury was instructed of. A violation of these regulations is a per se violation of

Chapter 93A.ore!
of wi
Cod
hims|
discl

Plai

. 940 Code Mass. Regs. Sec. 3.16(2)

As was enumerated in the jury instructions, it is a violation of Chapter 93A for any person
ity subject to this act to fail to disclose to a buyer or prospective buyer any fact, the disclosure
ich may have influenced the buyer or prospective buyer not to enter into the transaction. 940
Mass. Regs. Sec. 3.16(2). In the instant case the Defendant, Charles Edgar, testifying for
If and on behalf of Old Wharf Village LLC, admitted that it was his business practice to not
se that the units were actually motel rooms. Mr. Edgar testified that he never told the

iffs, or anyone for that matter, that they were buying a “motel-condo.” The jury went even

further and affirmatively found that the Defendants made material misrepresentations of fact, of

which the Defendants knew or recklessly disregarded the truth of falsity of, intended the Plaintiffs

to reli

upon those misrepresentations in making their decision, and that the Plaintiffs were injured.

(See Exhibit 11, Responses to Questions 3, 4, 5, 18). The jury’s own findings compiled with the

above admission of Charles Edgar prove the elements of a violation of Chapter 93A pursuant to

940 Code Mass. Regs Sec. 3.16(2).

or re
failur
effec!
but is
Mass

Chap}

. 940 Code Mass. Regs. Sec. 3.05

The jury instructions also specified that it is a violation of Chapter 93A to make-any claim
presentation by any means concerning a product which directly, or by implication, or by
e to adequately disclose additional relevant information, has the capacity or tendency or
of deceiving buyers or prospective buyers in any material respect. This prohibition includes,
not limited to, representations or claims relating to the utility of such product. 940 Code
Regs. Sec. 3.05(1). Additionally, the jury instructions stated that it is also a violation of

ter 93A to utilize an advertisement which would mislead or tend to mislead buyers or

prospective buyers, as to the product being offered for sale. 940 Code Mass. Regs. Sec. 3.05(2).

10LLC

famil

vie

The overwhelming weight of the evidence showed that Mr. Edgar and Old Wharf Village
directly or implicitly represented that the subject property could be used for year round single
y residential purposes. For instance, the brochure, which initially induced Rick Yatsenick to

the property, marketed the property as “a unique opportunity to choose the finishing touches

on these year round condominiums.” (See Exhibit 12). Absent further description, the word

cond!
broel
buye!
was

Exhil

Cond

(See

ominium has a plain meaning to the general public: residential use. Furthermore, the same
hure described the units as being “not motel room sized” clearly indicating to any prospective
r that the units could be used as residences. Also, the Multiple Listing Information Sheet that
next to the brochure listed the property as a condominium with residential purposes. (See
bit 8).

Most critically, the Plaintiffs’ own unit deed states that “The purpose for which the
lominium and each of the units is intended is only for year round single family residences...”

Exhibit 13). The Plaintiffs have consistently testified in affidavits, interrogatories, depositions

and in live testimony in Court that they viewed and read the deed initialed by Mr. Edgar at the

Burgi

er King prior to the closing. This testimony was corroborated by Stacey Curley who testified

at trial that she more than likely brought a copy of the deed with her to the closing as she does in

most|

closings. The foregoing overwhelming weight of the evidence shows that the Defendants

marketed the property in a manner which at least implies that the property could be used as a single

famil

year round residence which gives rise to a violation of Chapter 93A.

The jury made concrete findings that the Defendants misrepresented material facts to the

Plaintiffs, knew or recklessly disregarded the truth or falsity of the statements, intended the

Plaintiffs to rely on the misrepresentations in making their decision to purchase the subject

property, and that the Plaintiffs were injured. (See Exhibit 11, Responses to Questions, 3, 4, 5, 18).

11Thesi
Regs.

Chap

creat

are sl

e findings alone prove the elements of a violation of Chapter 93A pursuant to 940 Code Mass.
Sec. 3.05(1), where reliance is not a necessary factor. The analysis to prove the Plaintiffs’
‘ter 93A claim should end there.
- 940 Code Mass. Regs. Sec. 3.02

The jury instructions also state that no statement shall be made in any advertisement which
es a false impression of the usability of the product offered. This is so even if the true facts

ubsequently made known to the buyer, the law is violated if the first contact or interview is

secured by deception. 940 Code Mass. Regs. Sec. 3.02.

the Li
pureh
singl
was
The
creat

toa

The overwhelming weight of the evidence showed that the marketing material present at
ocus was what initially induced Rick Yatsenick to inquire with David Dillon about potentially
asing a residential condo. As was stated before, the brochure marketed the property as a
e family year round residential condo. (See Exhibit 12). The advertisement stated that this
a “unique opportunity to choose the finishing touches on these year round condominiums.”
dvertisement also stated that the rooms were spacious and not motel room size. This further
ed the misimpression that the units were marketed as residential condominiums, giving rise
iolation of Chapter 93A.

Once again, the jury affirmatively found that the Defendants misrepresented material facts

to the Plaintiffs, knew or recklessly disregarded the truth or falsity of the statements, intended the

Plaini

tiffs to rely on the misrepresentations in making their decision to purchase the subject

property, and that the Plaintiffs were injured. (See Exhibit 11, Responses to Questions, 3, 4, 5, 18).

The advertisements contained multiple misrepresentations as the jury found which again proves

the el

ements of a violation of Chapter 93A pursuant to 940 Code Mass. Regs. Sec. 3.02.

12If. THE JURY’S FINDING THAT THE PLAINTIFFS DID NOT REASONABLY
RELY UPON THE DEFENDANTS’ MISREPRESENTATIONS IS NOT
SUPPORTED BY THE OVERWHELMING WEIGHT OF THE EVIDENCE
AND APPLICABLE LAW

While the jury did find that the Defendants made material false statements that they
intended the Plaintiffs to rely on, the jury found that the Plaintiffs did not rely on the Defendants’
false statement or that if they did rely, their reliance was not reasonable. This finding was not an
honest and reasonable judgment in accordance with the principles of law applicable to the
Plaintiffs’ claims. Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 536 N.E.2d 344,
(1989).
The overwhelming weight of the evidence presented at trial showed that the Plaintiffs relied
on a multitude of factors, including the Defendants’ false statements, in their decision to purchase

the subject property. Indeed, the Plaintiffs’ testimony and trial exhibits demonstrated that they

relied upon the Defendants false statements, marketing materials, the Multiple Listing Sheet, their

 

unit deed, and their attorney in their decision to purchase the subject property.

Attorney Curley at no point in time ever contradicted the Defendants’ intentional
misrepresentations. Indeed, at no point in time did Attorney Curley cause the Plaintiffs to doubt
the Defendants’ misrepresentations by pointing out any ambiguities or other defects. The evidence
at trial showed that Attorney Curley’s statements to the Plaintiffs only strengthened the Plaintiffs’
detrimental reliance upon the Defendants’ material misrepresentations with regards to the use of
the subject property. However, the jury was misled by the Defendants’ argument that merely
because the Plaintiffs had retained counsel, this negated the Defendants liability. See W. Oliver

-» 34 Mass.App.Ct. 744, 748, 616 N.E.2d 118 (1993).

 

At no point in time were the Plaintiffs ever apprised of the truth that the property’s use was

that of a commercial motel instead of a single family year round residential condominium. The

13Plain
infor}

Curl

tiff’s reliance upon any and all statements, marketing materials and multiple listing
mation sheets is in no way negated by anything Attorney Curley stated. Absent Attorney

y telling the Plaintiffs that there was any problem in how the Defendants’ held the property

out, there was no reason for the Plaintiffs to not rely on both representations of the Defendants and

Attor

misre

mey Curley.
It is not necessary that the Plaintiffs reliance upon the Defendants’ fraudulent

presentations be the sole or even the predominant or decisive factor in influencing the

Plaintiffs’ conduct. It is enough that the representation plays a substantial part in affecting the

decis;

Nat.

ion and it need not be the decisive or paramount inducement. Howard v. Barnstable County

[Bank of Hyannis, 291 Mass. 131, 197 N.E. 40 (1935). It is not even necessary that the

Plaintiffs would not have acted as the Plaintiffs did unless the Plaintiffs had relied on the

Defer
playe
purch
consi
subst;

546

folloy

ndants’ misrepresentation. It is enough that the misrepresentations of the Defendants have
id a substantial part and so have played a substantial factor, in the Plaintiffs’ decision to
ase the property. Thus, it is immaterial that the Plaintiffs were influenced by other
derations such as similar misrepresentations from Attorney Curley, if the Plaintiffs also were
antially influenced by the misrepresentations in question. Restatement (Second) of Torts, Sec.
1977).

For illustrative purposes the Restatement (Second) of Torts, Sec. 546 (1977) proffers the
wing illustration:
“A makes fraudulent misrepresentations to B in order to induce B to buy land.
Although he believes A’s statements, B wants to confirm them and therefore makes
an inspection of the land and inquiries of third persons. He then buys the land from
A. In doing so, he relies in substantial part on A’s representations, as well as the
results of his investigations and inquiries. A is subject to liability to B for the

pecuniary loss which B suffers through the purchase of the land.” Restatement
(Second) of Torts, Sec. 546 (1977)

14The term “predominant,” in its natural and ordinary signification, is understood to be
something greater or superior in power and influence to others, with which it is connected or
. So understood, a predominant motive, when several motives may have operated, is one
ater force and effect, in producing the given result, than any other motive. The overwhelming
weight of the evidence supported that a reasonable jury should have found that the Defendants’
false) and fraudulent representation was one of several motives, acting together, which by their
combined force, induced the Plaintiffs’ to purchase the subject property. See Matthews v. Bliss,
(22 Fick. 48), 39 Mass. 48, 53-54 (1839).

As set forth in Bliss supra, so long as the overwhelming weight of the evidence showed
that the Plaintiffs reliance on the Defendants’ intentional misrepresentations played a substantial
part in inducing them to purchase the subject, then the Defendants are liable. This detrimental
reliance need not be the decisive or paramount inducement as was argued by the Defendants.
The jury found that the Defendants misrepresented material facts to the Plaintiffs, knew or
recklessly disregarded the truth or falsity of the statements, intended the Plaintiffs to rely on the
misrepresentations in making their decision to purchase the subject property, and that the Plaintiffs
werelinjured, (See Exhibit 11, Responses to Questions, 3, 4, 5, 18). This in fact proved the requisite
elements necessary for intentional misrepresentation and violations of Chapter 93A.

Iv. THE ALLOWANCE OF THE READING OF A PART OF THE PLAINTIFF’S
DEPOSITION TESTIMONY, ABSENT NOTICE PRIOR TO TRIAL WAS

CLEARLY ERRONEOUS, SEVERELY PREJUDICED THE PLAINTIFFS
AND WAS TANTAMOUNT TO TRIAL BY AMBUSH

Over objection, the Court allowed Defendants’ counsel to cherry-pick one paragraph out
of the Plaintiff's 286 page deposition from over 4 years ago and read it into evidence without any
notice to the Plaintiffs’ counsel and while the Plaintiff was present in Court and had already taken
the stand. Rather than using the deposition portion to impeach the Plaintiff, the Court allowed

15coun!
const
cont
testin

rehab

sel for the Defendants to introduce the deposition as substantive evidence, stating that it
ituted an admission that the Plaintiffs relied on none other than their attorney. This totally
fadicted the overwhelming weight of the evidence which consisted of the Plaintiffs’ live
nony and multiple trial exhibits. Additionally, the Plaintiffs were foreclosed from

ilitating the Plaintiff due to the lack of notice. This had the effect of misleading the jury with

regards to the state of the law. W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct.

744,

purp'

748, 616 N.E.2d 118 (1993).
While Mass. R. Civ. P. 32(a)(2) permits the use of a deposition of an adverse party for any

se, Mass. R. Civ. P. 32(a)(4) states that “if only part of a deposition is offered in evidence by

a party, an adverse party may require him to introduce any other part which ought in fairness to be

 

  

lered with the part introduced.” The Plaintiffs contend that implicit in this rule is the

requirement of at least one to two days notice before trial as set forth in 49A Mass. Prac., Discovery

Sec.

:55. Massachusetts holds the Rules of Civil Procedure in high regards. See USTrust Co. v.

 

Kenrledy, 17 Mass.App.Ct. 131, 456 N.E.2d 775 (1983) (finding that the purpose of the rules is to

rove an orderly, predictable process by which parties to a law suit conduct their business).

Further, Massachusetts has found that a trial judge may only forgive a failure to comply with the

rules

if the failure does not affect the opposing party's opportunity to develop and prepare a

response. Id.

The partial reading of the Plaintiff's deposition is inconsistent with both the doctrine of

completeness and the well settled principle that in the Rules of Civil Procedure of our

Commonwealth trial by ambush is prohibited. The rule of completeness states that the court may

permit an adverse party to introduce any other part of the writing or statement that is (1) on the

same| subject, (2) part of the same writing or conversation, and (3) necessary to an understanding

16of the admitted writing or statement. Additionally, Massachusetts Courts have recognized that

“trial

by ambush” is to be prevented. Commonwealth v. Eneh, 76 Mass.App.Ct. 672, 925 N.E.2d

64 (2010).

In the instant case, the Court’s ruling, over objection, to allow the reading of part of the

Plaintiff's deposition into the record, which was then subsequently utilized in the Defendants’

closing tainted the jury and severely prejudiced the Plaintiffs where Plaintiffs’ counsel had no

notice in order to timely select other parts of the deposition which could refute the evidence that

‘was

amo

devel

ead by Defendants’ counsel. The Court abused its discretion in allowing this tactic, which
inted to trial by ambush, and made it impossible for the Plaintiff to have an opportunity to

lop and prepare a response. See Kennedy, 17 Mass.App.Ct. 131.

V. THE COURT FAILED TO INSTRUCT THE JURY IN REGARDS TO MR.

EDGAR’S PERSONAL LIABILITY

The Plaintiffs also contend that the jury instructions failed to provide an accurate statement

of the law in regard to Charles Edgar’s personal liability. The failure to instruct the jury misled

them|as evidenced by their response to Question #3 of the Special Verdict Form, where the facts

sho

that Old Wharf Village LLC could have only acted by and through Mr. Edgar. W. Oliver

Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 748, 616 N.E.2d 118 (1993).

the of

VI. IT WAS PALPABLE ERROR FOR THE COURT TO EXCLUDE OTHER

UNIT OWNERS’ TESTIMONY WITH REGARDS TO ESTABLISHING A
COMMON PATTERN OR SCHEME WITH REFERENCE TO THE
DEFENDANTS’ FRAUDULENT CONDUCT

At trial the Court, over objection, the Court committed palpable error in refusing to allow

her unit owners to testify about their understanding, both then and now, of what their units

are and how they can be used. This ruling was made despite the fact that the Court admitted

evidence regarding the amount that each unit owner paid for their units, the deeds of every unit

17sold, and the language contained within the aforesaid deeds. The Plaintiffs claimed at trial that the

jury

pure

should be allowed to hear testimony from three-unit owners as to why they were interested in

hasing the property, why they ultimately did purchase the property, and why they paid that

much money for the property. The deposition testimony of each of these unit owners revealed that

all three of them thought that they were purchasing year round single family residential

condominiums and that they had no interest in buying into any form of commercial motel-condo

venture.

The Court, in excluding this testimony, severely prejudiced the Plaintiffs because the

Plaintiffs were trying to show to the jury that there was a common pattern or scheme with regards

to the unfair or deceptive business practice with regards to marketing these units. The Plaintiffs

further contend that in order to prove the element of unfair or deceptive practice under Chapter

93A

that they should have been allowed to show and establish the Defendants’ marketing practices

had the capability of not only deceiving the Plaintiffs but also other unit owners in the exact same

fashi

on.

The Court’s holding that the testimony was more prejudicial than probative in excluding

the testimony of the unit owners does not comport and in fact contradicts the Court’s subsequent

ruling in allowing the Defendants to use documentary evidence to show the values of the units.

Defer

sold

Pursuant to Mass. Guide to Evidence 406 The Plaintiffs were entitled to show that the
ndants acted in accordance with their routine business practices in the way they marketed and

the units. The Plaintiffs proffered evidence of the unit owners to show that this routine

business practice of marketing the units had the capacity to deceive and did in fact deceive not

only

the Plaintiffs but multiple other unit owners. This constitute a common pattern or scheme by

18the D

G.E

efendants and further showed that there was no mistake as set forth by the Defendants. Mass.
id. Sec. 404(b).

This Commonwealth has long recognized that when a defendant is alleged to have made

misrepresentations or engaged in fraudulent conduct, evidence that the defendant made similar

misrepresentations or participated in similar deceptions on other occasions may be admitted. Such

evid
wher
Hall,

pers

nce may be admissible: (a) to show that the defendant had the requisite knowledge of falsity

he engaged in the fraudulent conduct or made the misrepresentations (see, e.g., Foster v.

 

29 Mass. 89 (1831) (standing for proposition that evidence of similar frauds upon third

ns, about the same time, is competent evidence); (b) to prove that the defendant had an intent

to deteive (see, e.g., Lyon v. Wallace, 221 Mass. 351, 354 (1915); and (c) to prove the defendant’s

participation in a common fraudulent scheme (see, e.g., Jordan v. Osgood, 109 Mass. 457 (1872)

(stan

there|

pursi

Plaintiffs, knew or recklessly disregarded the truth or falsity of the statements, intended the

ding for proposition that another act of fraud is admissible to prove the subject fraud where
is evidence that the two acts are part of a common scheme or plan of fraud committed in
ance of a common purpose).

In the instant case the jury found that the Defendants misrepresented material facts to the

Plaintiffs to rely on the misrepresentations in making their decision to purchase the subject

Prop

rty, and that the Plaintiffs were injured. (See Exhibit 11, Responses to Questions, 3, 4, 5, 18).

The py should have heard that other unit owners were deceived as this point goes directly to the

Defer

upon|

unit

pdants capacity to deceive and would have established that not only did the Plaintiffs rely
the Defendants misrepresentations but other unit owners did as well.
It was palpable error for the Court to refuse to put evidence before the jury that multiple

ywners would have never purchased let alone been interested in purchasing these units, just

19as the Plaintiffs alleged that they would have never entertained purchasing their unit, based on the

admitted business practice by Mr. Edgar, that he never disclosed to anyone that the use of the units
is restricted to that of motel use.
CONCLUSION

WHEREFORE, for the foregoing reasons as set forth by the Plaintiffs, the Plaintiffs
respectfully requests this Honorable Court make findings and rule that a new trial be ordered
pursuant to Mass. R. Civ. P. 59.
Respectfully submitted,
THE PLAINTIFFS,
By their Attorneys

Brian K. ¢ y Esquire Kevin F. Bowen, ale

 

BBO# 566078 BBO# 051450

25 Lady Slipper Drive 395 Smith Street
Plymouth, MA 02360 Providence, RI 02908
(508) 591-7811 (401) 831-1600

Fax: |(508)746-1817 Fax: (401) 831-0129
bkglegal@gmail.com . kbowen@bbglaw.us

Date; December !3, 2018

CERTIFICATE OF SERVICE

Thereby certify that a true copy of the forgoing document was served upon counsel of record for
all known parties herein by causing a copy to be delivered by first class mail this /3_™ day of
December 2018.

Brian K. Galletta, Esq.
B.B.O. #566078

25 Lady Slipper Drive
Plymouth, MA 02360

Phone: (508) 591-7303

Fax: (508) 746-1817
Email: bkglegal@gmail.com

20HXCERPTS FROM PLAINTIFFS’ PLEADINGS REGARDING DEED AS CONTRACT
AS REFLECTED ON THE DOCKET

COMPLAINT:

(65) That the Locus was in fact not a single family year round residential condominium,
but rather a "room" in a commercial motel;

(65) That the Defendant breached its contractual obligation with the Plaintiff to deliver a deed
for full ownership rights, use, and possession of a single family year round residential
Cgndominium and has been unjustly enriched by the $223,000.00 in consideration paid in cash
by; the Plaintiffs;

(67) That at the time of the conveyance on June 21, 2010, the Locus was a defunct motel;

(68) That at no point in time, both then and now did or does the Defendant have the tight to
convey a single family year round residential condominium pursuant to Mass. Gen L. ch. 183A
as reflected in the record title and the special permits issued by the Town of Dennis;

(69) That the Plaintiffs attack the face of the Deed tendered by Defendant, Old Wharf Village,
LIC and states that Old Wharf Village LLC breached "in toto’ its contractual obligation it
owed to deliver a single family year round residential condominium----or for that matter any
interest in real estate.

OFPOSITION TO DEFENDANT CHARLES EDGAR’S SUMMARY JUDGEMENT

Buyers have a right to rely on a seller’s express covenant in a deed. Sumner v. Williams 8
Mass. 162 (1862), Gates v. Caldwell 7 Mass. 68 (1810).

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.

MEMORANDUM OF LAW IN REGARDS TO REAL ESTATE ATTACHMENT

A reasonable likelihood of success on the merits of the claims against the Defendants can
readably be found in the Deed conveyed to the Plaintiffs...

Thg Defendants tendered to the Plaintiffs a deed that unequivocally states that the intended
use of the Condominium that the Plaintiffs purchased from the Defendants was for "Single
Family Year Round Residential" use.

exuipit_|TERLOCUTORY APPEAL TO THE MASSACHUSETTS APPEALS COURT
AFFIRMING THE PLAINTIFFS’ REAL ESTATE ATTACHMENTS

Plaintiffs’ Unit Deed (R.A. A-37) pursuant to Mass. Gen. L. ch. 183A signed by Defendant
Charles Edgar stating that “the intended use for the unit is a Single family year round residential
condominium” The trial Judge could readily conclude that this was false on its face...

The Defendants claim that the phrase “single family year round residential use is ambiguous.
This is not the law with regards to zoning or deeds:

_

Single family means one family per dwelling, 2)Year round means the legal use of the unit at
all times as opposed to seasonal use, 3)Residential means for purposes of residing as opposed to
Operating a business entity for commercial purposes. Brett v. Building Commissioner of
Brookline, 250 Mass. 73, 145 N.E, 269 (1924). In the instant case the Plaintiffs sought to
purchase a dwelling to retire in. The deed tendered to the Plaintiffs clearly states “single family
year round residential use”. Instead, the Plaintiffs got a commercial motel room with no other
zoning relief. In our Commonwealth, buyers have a right to rely on a seller’s express covenant in
adeed. Sumner y. Williams 8 Mass. 162 (1862), Gates v. Caldwell 7 Mass. 68 (1810).

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

That the Plaintiffs filed this action against Defendant Old Wharf claiming Breach of
Contract...

 

 

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.

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".

2

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

The|Plaintiffs have a right to rely on Defendant Old Wharfs 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).la]

LAINTIFFS’ OPPOSITION TO JUDGMENT ON THE PLEADINGS

fe

t
he Defendants’ contention in their Motion that the purchase and sale agreement somehow
‘supersedes the deed" simply is not the law. Buyers have aright to rely on a sellers
press covenants in a deed. Sumner v, Williams 8 Mass. 162 (1 862), Gates_v. Caldwell 7
lass. 68 (1810). While the doctrine that acceptance of a deed ordinarily merges, and
scharges, all obligations in the purchase and sale agreement, except those specified in the
ed, a party to a contract with another cannot claim shelter bya contractual device, such as
exculpatory or merger provision, against claims of misrepresentation or deceit. Greenleaf

is Realty Trust L LLC v. New Boston Fund. Inc., 81 Mass. App. Ct. 282, 288-89, 962
E.2d 221. 228 (2012).

Z\> 8 oe Zo
a

 

 

gar 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
Tescission as a remedy for the breach of contract by the Defendants as well as the

ecable consequential damages the Plaintiffs incurred.

INTIFFS’ OPPOSITION TO THE DEFENDANTS’ MOTION FOR A PARTIAL
DISSOLUTION OF REAL ESTATE ATTACHEMENTS

The Plaintiffs were tendered a deed by the Defendants 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” (See
Exhibit 1).

The Defendants contention 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 representations
in their deed. Sumner y. 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 deceit. Greenleaf Arms Realty Trust I, LLC v. New Boston
Fund, Inc. 81 Mass. App. Ct, 282, 288-289, 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 Defendants.COMMO) ALTH OF MASSACHUSETTS

DEPARTMENT OF THE T