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Judicial estoppel provides litigants with a useful tool to prevent their opponent from taking contradictory positions for tactical advantage.  Once a party successfully asserts a factual or legal position, it is “stuck” with it and may not take a contrary position in a later proceeding simply because it would be advantageous to do so.

For example, in Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 639–640 (2005), the Supreme Judicial Court affirmed a trial court’s use of judicial estoppel to prevent a pedestrian hit by a car from taking a position in his action against the driver’s insurer which was exactly the opposite of the position he took in his claim against the driver.  In his action against the driver, Cusick, the pedestrian, Otis, “took the position that he [Otis] was not negligent, based on the factual assertion that he had yielded the right of way when he … stopped a few feet shy of the dividing center line of the highway. That position was successful, as the jury found no comparative negligence on Otis’s part, and thus awarded him the full amount of damages for his injuries.”[1]  Later, in his action as Cusick’s assignee against Cusick’s insurance company, Otis contended “not only that he [Otis] was negligent, but that his negligence was even greater than Cusick’s, such that it should have operated to deny him any recovery against Cusick.”[2]  The SJC concluded that judicial estoppel properly applied because “[t]he factual premise now advanced in support of that comparative negligence theory is directly contrary to the facts Otis put forward in the prior suit—Otis now contends that he …  had crossed several feet over the dividing center line and stopped in the direct path of an oncoming vehicle.”[3]

“Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.”[4] “In some instances, judicial estoppel is appropriate where litigants have asserted inconsistent positions in successive stages of the same litigation.”[5]

“The purpose of the doctrine is to prevent the manipulation of the judicial process by litigants.”[6] Judicial estoppel, “is properly invoked whenever a party is seeking to use the judicial process in an inconsistent way that courts should not tolerate.”[7]  The doctrine also protects public confidence in the courts. “Allowing a party to seek advantage from taking, “mutually exclusive” positions in different court proceedings would create[ ] the appearance that either the first court has been misled or the second court will be misled, thus raising the specter of inconsistent determinations and endangering the integrity of the judicial process.”[8]

“Judicial estoppel ‘is an equitable doctrine, calling for the exercise of discretion in its application to particular facts.’”[9]  As such, the Massachusetts courts have made clear that “[J]udicial estoppel is not to be defined with reference to ‘inflexible prerequisites or an exhaustive formula for determining [its] applicability’”[10] and that “the application of judicial estoppel must be decided on a case-by-case basis.”[11]   Whether to apply judicial estoppel is a matter within the trial court’s discretion.[12]  According to the Otis Court,

Like other courts that have grappled with the “hazy” contours of the doctrine, we decline to construct a categorical list of requirements or to delineate each and every possible exception. Rather, judges should use their discretion, and their weighing of the equities, and apply judicial estoppel where appropriate to serve its over-all purpose. That purpose is to safeguard the integrity of the courts by preventing parties from improperly manipulating the machinery of the judicial system, and judicial estoppel may therefore be applied when a litigant is playing fast and loose with the courts.[13]

“The application of judicial estoppel requires both that ‘the position being asserted … [is] directly contrary to the position previously asserted,’ and that ‘the party must have succeeded in convincing the court to accept its prior position.’”[14]  The inconsistent position may be either factual or legal.[15]  Positions which are “directly inconsistent” are those which are “mutually exclusive.”[16]

Even when a party has taken inconsistent positions, the court may, in its discretion, decline to apply judicial estoppel.  The Supreme Judicial Court has noted that because judicial estoppel is an equitable doctrine,

there may arise certain instances where the party’s prior position was asserted in good faith, and where the circumstances provide a legitimate reason—other than sheer tactical gain—for the subsequent change in that party’s position. For example, “it may be appropriate to resist application of judicial estoppel ‘when a party’s prior position was based on inadvertence or mistake,’ ” New Hampshire v. Maine, supra at 753, 121 S.Ct. 1808, quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir.1995), or where “the position adopted in the first suit was clearly wrong yet had been advanced in good faith by the party now sought to be estopped,” Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1428 (7th Cir.1993). Strict application of the doctrine might not be called for if “the new, inconsistent position is the product of information neither known nor readily available to [the party] at the time the initial position was taken.” Alternative Sys. Concepts, Inc. v. Synopsys, Inc., supra at 35. Again, judicial estoppel is an equitable doctrine, calling for the exercise of discretion in its application to particular facts.[17]

Although the doctrine of judicial estoppel applies only when necessary to prevent inequitable manipulation of the judicial process which undermines confidence in the courts, it is a powerful tool to force litigants to remain consistent in their factual and legal positions.

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[1] Otis, 443 Mass. at 642-43.

[2] Id. at 643.

[3] Id.

[4] Sandman v. McGrath, 78 Mass. App. Ct. 800, 801 (2011), quoting Otis, 443 Mass. at 639–640, quoting from Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184 (1998). See also Turnpike Commercial Real Estate, Inc. v. B.C. Executive Realty, Inc., 92 Mass. app. Ct. 1130, 2018 WL 1145714, *2 (3/5/18) (unpublished Rule 1:28 decision).

[5] Turnpike, 2018 WL 1145714, *2.

[6] Commonwealth v. Middlemiss, 465 Mass. 627, 637 (2017).  See also Sandman, 78 Mass. App. Ct. at 801, quoting Otis, 443 Mass at 640.

[7] Middlemiss, 465 Mass. at 637; Otis, 443 Mass. at 640.

[8] Otis, 443 Mass. at 639, 643.  (Internal quotation marks omitted).

[9] Sandman, 78 Mass. App. Ct. at 802, quoting Otis, 443 Mass. at 642.

[10] Middlemiss, 465 Mass. at 637; Otis, 443 Mass. at 640

[11] Sandman, 78 Mass. App. Ct. at 802.

[12] Otis, 443 Mass. at 642.

[13] 443 Mass. at 642.

[14] Sandman, 78 Mass. App. Ct. at 801-02, quoting Otis, 443 Mass. at 640–641.

[15] Faigin v. Kelly, 184 F.3d 67, 82 (1^st Cir. 1999).

[16] Bay State Gas Co. v. Dept. of Public Utilities, 459 Mass. 807, 818 (2011); Johenning v. Town of Milton, 92 Mass. App. Ct. 1102, 2017 WL 3371725, *6 (8/7/17) (unpublished Rule 1:28 decision).

[17] Id. at 642.  See also Holland v. Kantrovitz & Kantrovitz, LLP, 92 Mass. App. Ct. 66, 74 (2017).

The buyer and seller of real estate assume numerous obligations when they execute a purchase and sale agreement (“P&S”).   Among other duties, the seller agrees to provide full possession of the premises, and that the premises will comply with applicable building and zoning laws.  A P&S will commonly include the following provision, or similar language tailored to the particular circumstances:

Possession and Condition of Premises.  Full possession of said premises … is to be delivered at the time of the delivery of the deed, said Premises to be then (a) on the same condition as they now are … and (b) not in violation of … building and zoning laws, and (c) in compliance with the provisions of any instrument referred to [in this agreement]

A buyer may argue that this “Condition of Premises” provision creates a warranty, enabling the buyer to sue the seller after the sale is complete if premises fail to comply with applicable laws.  However, the Condition of Premises clause does not create a warranty, does not survive the closing and, therefore, cannot provide a basis for the buyer to sue the seller after the sale is complete.

Massachusetts courts have rejected such warranty claims, noting that other provisions of the standard P&S make clear that the obligations imposed by the Condition of Premises section do not survive the closing.  The standard P&S also contains a provision entitled “Acceptance of Deed,” which provides that,

the acceptance and recording of a deed by the BUYER … shall be deemed to be a full performance and discharge of every agreement and obligation herein contained or expressed, except such as are, by the terms hereof, to be performed after the delivery of the deed.

Relying on the Acceptance of Deed provision, courts have held that the Condition of Premises provision does not create warranties or covenants that survive the recording of the deed.  Instead, it merely states conditions which, if not satisfied, justify the buyer’s refusal to close the sale.  It does not entitle the buyer to complete the sale, record the deed, and then sue to enforce those obligations or for damages.  By virtue of the Acceptance of Deed provision, such conditions cease to exist when the deed is accepted and recorded.

In Albrecht v. Clifford, 436 Mass. 706 (2002), the Massachusetts Supreme Judicial Court held that the obligations contained in the Condition of Premises provision (¶ 9 of the P&S in that case) are conditions rather than warranties.  According to the Court,

The Albrechts allege in Count I of their complaint that Clifford breached the terms of the purchase and sale agreement because “the Residence delivered to the Albrechts at or about the time of delivery of the deed was not completed in accordance with the requirements of the contract and is in violation of certain building laws.” …  The judge entered summary judgment on Count I because it was based on a paragraph of the purchase and sale agreement (paragraph 9), that did not survive the Albrechts’ acceptance of the deed but merged with it. …

Acceptance of a deed ordinarily merges all obligations in the purchase and sale agreement, except for those specified in the deed itself. McMahon v. M & D Bldrs., Inc., 360 Mass. 54, 59, 271 N.E.2d 649 (1971). Consistent with this rule of merger, the agreement in this case expressly states that: “The acceptance of a deed by the BUYER … shall be deemed to be a full performance and discharge of every agreement and obligation herein contained or expressed, except such as are, by the terms hereof, to be performed after the delivery of said deed.”

There is an exception to this general rule when a home builder agrees to undertake an obligation, such as constructing or repairing a building on the property, that is in addition or collateral to the conveyance of the deed….

The Albrechts contend that paragraph 9 of the agreement created an obligation that was collateral to the conveyance of the deed and, as such, constituted a contractual warranty that the residence would comply with the applicable building codes. This contention is incorrect. Paragraph 9 of the agreement states that:

“Full possession of [the residence] … is to be delivered at the time of the delivery of the deed, said premises to be then (a) fully completed in accordance with the requirements hereof, and (b) not in violation of any building, planning, health … or zoning laws…. The Buyer and its consultants shall be entitled personally to inspect said premises prior to the delivery of the deed in order to determine whether the condition thereof complies with the terms of this or any other clause hereof.”

This paragraph is not a warranty. Rather, it describes some of the conditions on which the Albrechts could have refused to purchase the residence. The agreement provided that if Clifford had been unable to provide good title, convey or deliver possession of the residence, or “if at the time of the delivery of the deed the premises do not conform with [the agreement’s] provisions”-including paragraph 9-he had up to thirty days to use reasonable efforts to remedy any of these problems. If he failed to fix any problems within that time, the agreement would have become void. We agree with the judge that Count I of the Albrechts’ complaint fails because paragraph 9 is not a contractual warranty that survived the Albrechts’ acceptance of the deed.

Id. at 716-17.  (Emphasis added, footnote references omitted).

Similarly, in Solomon v. Birger, 19 Mass. App. Ct. 634 (1985), the Court stated,

Section 4 of that agreement calls upon the seller to convey a good and clear record and marketable title, free from encumbrances, except, among other things, provisions of existing building and zoning laws. Section 9, upon which the plaintiffs heavily rely, provides: “Full possession of said premises free of all tenants and occupants … is to be delivered at the time of the delivery of the deed, said premises to be then (a) in the same condition as they now are, reasonable use and wear thereof excepted, and (b) not in violation of said building and zoning laws….” Into this latter section, i.e., § 9, the plaintiffs read a warranty by the sellers that the premises at the time of delivery of the deed will conform to the building code of the city of Newton. If the agreement so warrants, the materials submitted by the plaintiffs in opposition to the defendants’ motion for summary judgment are sufficient to raise a question of fact whether at the closing between the parties a building code violation existed.

We do not think that the purchase and sale agreement so warrants. Sections 4 and 9 of the agreement are interdependent. Section 4 deals fundamentally with the state of the title. It does so expressly and mentions building and zoning laws, party wall agreements, taxes, and betterments as aspects of title considerations. There is a blank subparagraph in which counsel tailoring the agreement may insert references to such things as easements. Under § 4, certain fundamental criteria for conveyance of title are established so that the buyer, between the time of execution of the purchase and sale agreement and delivery of the deed, can investigate what kind of pig is in the poke. If the buyer discovers a building or zoning law violation, the buyer may, under § 9, opt out of the agreement, unless the defect is cured in accordance with the provisions of § 10. Section 9 is not expressed in terms of warranty, but rather in terms of the conditions upon which the buyer may accept or refuse conveyance.

It is difficult to imagine that an agreement designed by a real estate association would contain a twenty-year warranty about a fact of which the seller is likely to have imperfect knowledge, i.e., whether his structure, at the time of sale, conforms in every respect with the building code.

Id. at 640-41.  (Emphasis added, footnote reference omitted).

To the same effect is the decision in Limoncelli v. Grover, 27 Mass. L. Rptr. 195, 2010 WL 3038900 (Mass. Super. 6/25/10), where the Court stated,

Clause 9 of Limoncelli’s contract provides that “Full possession of said premises … is to be delivered at the time of the delivery of the deed, said premises to be then … (b) not in violation of said building and zoning laws …” Massachusetts courts have held that (1) identical language in a purchase and sale agreement, in combination with a merger clause, fails to create a warranty or collateral obligation, and (2) acceptance of the deed extinguishes all of the seller’s obligations under the purchase and sale agreement. See Albrecht v. Clifford, 436 Mass. 706, 716-18, 767 N.E.2d 42 (2002); Solomon v. Birger, 17 Mass.App.Ct. 634, 640-43 (1985).

Id. at *2.  (Emphasis added).

Commentators agree.  Massachusetts Practice states,

The provision stating that the property at the time of the closing will not be in violation of building and zoning laws is not a warranty by the seller that the premises at the time of the closing will conform to building and zoning laws; rather, it is a condition upon which the purchaser may accept or refuse conveyance. In other words, the purchaser may not bring an action against the seller after the closing should he discover that the property is in violation of building or zoning laws in some respect. If the purchaser discovers such violations before the closing and the seller is unable to make the premises conform to the agreement, the purchaser may, depending upon the wording of the agreement, terminate the agreement and receive a refund of his deposit, require the seller to use reasonable efforts during a specified period to correct the problem, or accept the property in its present condition with or without a reduction in the price.

36A Mass. Prac. Consumer Law, §28:35 (3^rd ed.)  (Footnote references omitted).

In sum, the Condition of Premises provision of a standard P&S does not create a warranty enforceable after the parties have complete the sale.  That conclusion flows from the language of that provision, which creates only a condition on the buyer’s duty to complete the sale, and from the clear language of the “Acceptance of Deed” provision.

In a previous post, I explained that when the settlor of a trust fails to execute a schedule of beneficiaries, the trust is void and cannot receive a conveyance of property.  That raises the question: who owns property which has been conveyed to a failed trust?  Does the property revert to the seller or does the trustee hold it, but in his or her individual capacity?  The answer depends on whether consideration was paid for the attempted conveyance.

The Court in In re: Callahan, 419 B.R. 109 (Bkrtcy. D. Mass. 2010), after concluding that the trust failed for lack of beneficiaries, held that title to the conveyed property did not revert to the third party transferor, but instead became vested in the debtor, individually, stating, “When the 121 Westwood Road Realty Trust failed, under Massachusetts law, the Debtor took title to the Falmouth Property in her individual capacity.”  419 B.R. at 127.

Calnan v. McCarthy, 12 Mass. L. Rptr. 522, 2000 WL 33170094 (Mass. Super. 10/18/00), also supports the conclusion that property conveyed for consideration to a trust which fails is held by the trustee of the failed trust in his or her individual capacity.  In Calnan, one McCarthy created a trust and then took a conveyance, as trustee, from a third party for valid consideration.  The Court held that the trust was void and decided that title to the conveyed property was held by McCarthy individually.  “[I]n the circumstances of this case, no trust ever came into existence and the defendant should be deemed to hold the property in his individual capacity.”  Id. at *3.

The Restatement (Second) of Trusts (1959) states,

Where the owner of property transfers it upon a trust which fails, and he receives from the transferee consideration for the transfer as an agreed exchange, there is no resulting trust and the transferee holds the property free of trust.

Id. at § 423.  Comment “a” to § 423 further provides,

Private trusts. Where the owner of property sells it and at the direction of the purchaser transfers the property to the purchaser in trust for a third person, the purchaser and not the seller is the person who creates the trust. Hence, if the trust fails there is no reason why the property should be returned to the seller, and there is no reason why he should not keep the purchase price. The purchaser in such a case can properly retain the property. The situation is the same in substance as though the seller had transferred the property to the purchaser free of trust and the purchaser had thereupon declared himself trustee of the property, in which case if the trust fails the purchaser can retain it free of trust.

See also Restatement (Third) of Trusts, § 8, Com. “f” (2003)

Commentators have reached the same conclusion, stressing that the presence or absence of consideration for the conveyance determines who owns the property. 

If an owner of property gratuitously transfers it and properly manifests an intention that the transferee should hold the property in trust, but the trust fails, the transferee holds the trust estate upon a resulting trust for the transferor or his estate….

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There is no resulting trust in favor of a transferor who received consideration for the transfer in trust.  If the transferee paid the consideration and thereupon held the property in a trust which failed, the transferee can keep the property — there is no resulting trust — for otherwise the transferor would be unjustly enriched.” (Emphasis added, footnote reference omitted).

14D Mass. Prac. Summary of Basic Law, § 18.39 (2014).  See also Bogert, Trusts, 6th Ed. (West Pub. Co., 1987), § 75, p. 283 (“[The transferor] cannot reasonably be said to have intended a return of the property, after having been paid its value, if the trust failed. He must be deemed to have intended that the trustee retain the property as his own.”); Bogert’s Trusts and Trustees, § 468 (2014) (“The court of equity must decide what shall be the disposition of the subject matter of the trust which has failed. If the transfer in trust was for a consideration paid by the trustee, he is allowed to retain the property because of the certainty that the settlor would have intended such a result and would not have expected a return of the property”).

Accordingly, in the normal case where the purchaser has paid the seller to transfer property to a trust of which the purchaser is trustee, a failure of the trust results in the purchaser taking title to the property as an individual.

For days, Alice had a nagging feeling that she was forgetting something.  Being the owner and manager of a real estate empire, there were many things to remember, and just as many things she might have forgotten.  That sense of something overlooked was particularly aggravating as Alice had spent the last month getting her estate in order, making sure that when she passed away her properties would be divided among her seven sons and one daughter exactly as she intended:  everything to a trust of which her daughter, Honoria, was the sole beneficiary.

Finally, as she was leaving Frosty Favorites after consuming her daily soft serve cone (chocolate-vanilla swirl as always), Alice remembered that she had not yet signed the trust’s schedule of beneficiaries listing Honoria.  Unfortunately, while still basking in the glow of her retrieved memory, Alice was struck and killed by a snowplow.

When her sons discovered that Alice had largely omitted them from her estate plan, they brought suit, arguing that the trust was void because Alice had not executed the schedule of beneficiaries.  As a result, they claimed, all of Alice’s real estate was held by her, individually and not as trustee, at the time of her death, and passed by the residuary clause of her will, which distributed Alice’s assets to all eight of her children in equal shares.

In response, Honoria argued that the schedule of beneficiaries was a mere technicality and she should inherit all of the real estate, as Alice intended.  On these facts, however, Honoria will have to settle for her one-eighth share.

A settlor declaring a trust and naming him or herself as trustee will often provide that the beneficiaries of the trust are shown on a Schedule of Beneficiaries executed by the settlor and filed with the trustee.  But what happens when the settlor fails to execute the schedule and thereby fails to identify those who hold a beneficial interest in the trust property?  In such circumstances, the trust is void and incapable of receiving the conveyance of any property transferred to it by the settlor.

In Arlington Trust Co. v. Caimi, 414 Mass. 839 (1993), the Supreme Judicial Court stated,

“Where the owner of property declares himself trustee for persons to be selected by him, the selection to be wholly within his control, no trust is created and the settlor continues to hold the property for his own benefit.” 2A Scott, Trusts § 112, at 157 (4th ed. 1987). As Caimi never designated a beneficiary as required by the declaration of trust, the JDC Realty Trust never came into existence ….

Id. at 848.  (Emphasis added, footnote reference omitted).  Similarly, in In re Callahan, 419 B.R. 109 (Bankr. D. Mass. 2009) decision clarified, 425 B.R. 728 (Bankr. D. Mass. 2010), the Court stated,

The United States argues that the marital presumption is inapplicable in the present case because the Debtor took title to the Falmouth Property as trustee of the 121 Westwood Road Realty Trust and not in her individual capacity. That would be true but for her failure to prepare a schedule of beneficiaries. In Arlington Trust Co. v. Caimi, the Supreme Judicial Court of Massachusetts held that where a settlor deeds property to himself as trustee and fails to designate a list of beneficiaries in the manner described in the trust instrument, the conveyance is a nullity and the trust never comes into existence. “Where the owner of property declares himself trustee for persons to be selected by him, the selection to be wholly within his control, no trust is created and the settlor continues to hold the property for his own benefit.”

419 B.R. at 127.  (Footnote reference omitted).  See also Dowd v. Johnson, 78 Mass. App. Ct. 1117, 2010 WL 5464854, *2 n.6 (2010) (unpublished Rule 1:28 opinion) (citing Arlington for proposition that “[T]he conveyance is a nullity as the receptor trust never came into existence for want of a beneficiary.”); Bongaards v. Millen, 55 Mass. App. Ct. 51, 53-54 (2002) (citing but distinguishing holding in Arlington that “where the settlor never identified any beneficiary in writing, as required by the declaration of trust, the trust ‘never came into existence and the attempted conveyance fail[ed] for lack of a cognizable recipient’”); United States v. Kattar, 81 F. Supp. 2d 262, 273 (D.N.H. 1999) (citing Arlington and also noting that “Under Massachusetts law, where the trust does not establish a definite, limited class of beneficiaries such that the beneficiaries are ascertainable and capable of enforcing the trust, the trust fails”).  See also Massachusetts G.L. c. 203E, § 402 (stating that a “trust shall be created only if … (3) the trust has a definite beneficiary….”  (Emphasis added).

The forgoing case law supports the conclusion that the settlor’s failure to properly identify the beneficiaries of a trust renders the trust void, and incapable of receiving a conveyance of property, whether that conveyance is from the settlor or from a third party.  While in Arlington the conveyance was from the settlor to himself as trustee, the circumstances were different in Callahan. In Callahan, the issue was whether certain property (121 Westwood Road) held by the debtor wife as trustee of the 121 Westwood Road Realty Trust was subject to a tax lien filed by the United States against her husband.  The wife had created the trust first and then received a conveyance as trustee from a third party, for valid consideration.  However, the wife, as trustee, had failed to prepare and execute the schedule of beneficiaries referred to in the trust.  Citing Arlington, the Bankruptcy Court held that failure to identify beneficiaries rendered the trust void.  419 B.R. at 127.  The District court affirmed.  In re: Callahan, 442 B.R. 1, 9-10 (D. Mass. 2010).

Accordingly, Alice’s failure to execute a schedule of beneficiaries renders her trust void and incapable of receiving a conveyance of her real estate pursuant to her will.  Instead, the real estate will pass via the will’s residuary clause to all of her children equally.

Common sense indicates that when the Statute of Frauds requires a contract to be in writing, any modification of that contract must also be written.  Yet, that is not always true.  Under the so-called “Cummings rule,” an oral modification of a contract governed by the Statute of Frauds, affecting only the manner of performance, not the contract’s substance, is enforceable.

A classic application of the Cummings rule allows an oral modification of a written real estate purchase and sale agreement (“P&S”) to extend the closing date.  Assume, for example, that on February 3, 2017, the seller and buyer of real property enter into a written P&S which requires that the closing of the sale be completed, at the registry of deeds, on or before March 1, 2017.  Prior to expiration of the March 1 deadline for performance, at the buyer’s request, the parties orally agree to extend the closing date to March 8, 2017.

On that date, the buyer appears at the registry of deeds, ready, willing and able to complete the purchase.  The seller refuses to perform, arguing that buyer’s right under the P&S to purchase the property expired on March 1, 2017, and that the extension was ineffective because it was not in writing.  On these facts, the buyer is entitled to specifically enforce the P&S.

A modification of a contract within the Statute of Frauds must usually be in writing.

The Massachusetts Statute of Frauds, G.L. c. 259, §1, states, in relevant part,

No action shall be brought:

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Fourth, Upon a contract for the sale of lands, tenements or hereditaments or of any interest in or concerning them; or,

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Unless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.

In the hypothetical above, the P&S clearly related to the sale of land or an interest therein, and was subject to the Statute of Frauds.  It satisfied the Statute of Frauds because it was in writing and signed by the parties.  The extension agreement was not in writing and so did not satisfy the Statute of Frauds.

The general rule is that where a contract is subject to the Statute of Frauds, a modification or amendment of such contract is also within the Statute of Frauds and must be in writing.  Rex Lumber Co. v. Acton Block Co., 29 Mass. App. Ct. 510, 515 (1990), citing Cummings v. Arnold, 3 Met. 486, 489-92 (1842); Whittier v. Dana, 10 Allen 326 (1865); Rosenfeld v. Standard Bottling and Extracts Co., 232 Mass. 239, 245 (1919); Johnston v. Holiday Inns, Inc., 565 F.2d 790,-793-96 (1^st Cir. 1977).  See also Croft v. National Bedding Co., 2006 WL 1716754, *2 (D. Mass. 6/20/06) (“amendments to a contract that is within the Statute of Frauds are themselves within the Statute of Frauds.”); Lydon v. Nationwide Mut. Ins. Co., 1997 WL 260064, *8 (D. Mass. 5/9/97) (“The general rule [in Massachusetts] is that an oral modification … of a written contract which originally was and as modified is within the statute of frauds cannot be wholly or in part the foundation of an action” (internal quotation marks omitted)); Field v. Riesman, 2001 WL 35937358 (Mass. Super. 3/27/01) (“Modifications or amendments to a contract that is within the Statute of Frauds are themselves within the Statute of Frauds.”)

The Cummings rule.

There is, however, and exception to the general rule, where a contract within the Statute of Frauds is orally modified only with regard to the time or manner of performance, not the substance of the contract.  In Cummings v. Arnold, 3 Met. 486, 489-92 (1842), the Court held that a defendant who had been sued for breach of a written contract could raise in defense his compliance with an oral modification to that contract which extended the time to perform.  See also Johnston v. Holiday Inns, Inc., 565 F.2d 790, 793-96 (1^st Cir. 1977).  In Stearns v. Hall, 9 Cush. 31 (1851), the Supreme Judicial Court extended the so-called “Cummings rule” to allow a plaintiff, who is suing on a written contract within the Statute of Frauds, to rely on an oral modification which extends the time for performance in order to prove the plaintiff’s own compliance with the contract.  Whether raised by the defendant or the plaintiff, the oral modification can escape the Statute of Frauds only if it concerns the time or manner of performance and does not work so great a change as to effectively rewrite the contract.

In McKinley Investments, Inc. v. Middleborough Land, LLC, 62 Mass. App. Ct. 616, 619 (2004), an oral modification to a real estate P&S affected the time of performance, tolling and the price to be paid. The Court held that the modification established only a substitute performance, not a substitute contract, and therefore the Statute of Frauds did not render the modification unenforceable.  The Court made clear that an enforceable modification might involve more than just the time for performance, stating,

We hold that the judge was correct in characterizing the modifications, as pressed by McKinley, as affecting time, tolling, and price. However, the changes did not rewrite the contract. Their effect was to establish a substitute performance, rather than a substitute contract. See Johnston v. Holiday Inns, Inc., 565 F.2d 790, 796 (1st Cir.1977) (after review of Massachusetts cases, concluding that the test is whether “the parol modification becomes so extensive and significant that it is not a mere substituted performance,” but rather “[i]t becomes a new contract and that new contract must be proved by a writing”). Compare Rosenfeld v. Standard Bottling & Extracts Co., 232 Mass. 239, 244–245, 122 N.E. 299 (1919) (finding substituted contract, rather than substituted performance, where modified agreement had “nothing in common” with original agreement and obligations of plaintiff were “utterly different”). The decision was also incorrect to restrict allowable modifications solely to those “simply extend[ing] the time of performance,” despite McKinley’s claim that the modifications all boiled down to an extension of time for performance. Here, McKinley’s performance obligations and conditions were, in part, moveable, dependent upon due diligence, and not simply a fixed closing date. The timing and mode of performance were rather typical of a modern Massachusetts land transaction that requires, for accomplishment, governmental permits. At first blush, the bulk of the text defining the performance requirements suggests such complexity that any modification would be other than simple. However, upon closer examination, the identified modifications are, as matter of law, most fairly described as “mode[s] of performance … varied by a subsequent oral agreement based upon a valid consideration,” which our cases have permitted.  Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 439, 597 N.E.2d 1017 (1992), quoting from Siegel v. Knott, 316 Mass. 526, 528, 55 N.E.2d 889 (1944).

While it is true that the court in Rex Lumber Co. v. Acton Block Co., 29 Mass.App.Ct. at 515–516, 562 N.E.2d 845, spoke of a line of cases instructing that a plaintiff may enforce a contract which has been modified by an oral agreement to extend the time for performance, several cases cited by the court did not limit the possibility of oral modification only to time for performance. The Rex court cited Moskow v. Burke, 255 Mass. 563, 567, 152 N.E. 321 (1926) (“[t]he parties could at any time before breach orally modify the time and manner of performance fixed by the contract” [emphasis supplied] ); Siegel v. Knott, 316 Mass. at 528, 55 N.E.2d 889 (the oral agreement “changed the method by which the plaintiffs had undertaken to pay their mortgage indebtedness” [emphasis supplied] ); Wesley v. Marsman, 393 Mass. 1003, 1004, 471 N.E.2d 51 (1984) (the parties had “orally modified the terms of the original agreement concerning the return of the deposit ” [emphasis supplied]).

In this case the modifications regard both the time for performance (the twelve-month extension and the substitution of a definite time period for a tolling period) and the payment of additional money. While the payment appears to us, in the circumstances, as consideration for the contract modification, we do not consider it relevant on summary judgment that the parties contest whether the additional payment is consideration or an increase in the sale price. In either case, the fact of payment is not sufficient to render the oral modification invalid. We hold that it was error for the judge to have ruled that the identified modifications rendered the contract, as amended, unenforceable. Summary judgment was improperly granted.

Id. at 619-20.  (Emphasis added).  According to the Court in Lydon,

The general rule [in Massachusetts] is that an oral modification … of a written contract which originally was and as modified is within the statute of frauds cannot be wholly or in part the foundation of an action. There are, no doubt, exceptions to the general rule, most notably the “Cummings rule,” described in Johnston as “a doctrine accepted in Massachusetts under which ‘in defence to an action on the written contract [within the Statute of Frauds], the defendant may show that he has performed it according to an oral agreement for a substituted performance.’” The First Circuit went on to explain the Cummings rule as one under which a plaintiff could not sue upon the oral modification, but a defendant was entitled to set it up as a defense….

Massachusetts does, however, recognize a narrow exception to the rule that oral amendments to contracts within the statute of frauds may be used as shields but not as swords. That narrow exception deals with the case in which a plaintiff attempts to sue on a contract within the statute of frauds and is met with the defense that the defendant’s obligation was discharged by plaintiff’s own failure to perform within the time requirements set forth in the written agreement. When met by such a defense, plaintiff is permitted to claim in rebuttal that its time for performance was extended by an oral agreement.

1997 WL 260064, *8.  (Emphasis added, internal quotation marks, citations and footnote reference omitted).

And in Kelly v. Dolben, 12 Mass. L. Rptr. 509, 2000 WL 33170862 (Mass. Super. 10/4/00), the Court summarized the enforceability of oral modifications to contracts within the Statute of Frauds as follows,

Although the Statute of Frauds generally bars a plaintiff from suing upon an oral modification of a written contract, it does not bar a defendant from showing that he has performed the contract according to an oral agreement for substitute performance.

The Supreme Judicial Court has limited what may constitute an oral agreement for a substitute performance. In Cummings, the plaintiff sued for breach of contract after the defendants failed to deliver a quantity of goods at a price stipulated in the written contract. The defendants argued that the plaintiff had not complied with oral agreements calling for the plaintiff to pay cash for the goods. The Court held that the Statute of Frauds did not bar the defense because the oral agreement did not vary the terms of the written contract as to the defendant’s performance, and only altered the time of payment by the plaintiffs.  In Stearns v. Hall, 9 Cush. 31, 33-34 (1851), the Court extended this rule to allow a plaintiff suing on a written contract for the sale of land to prove satisfaction of a substituted performance concerning the time of payment. Although the defendant argued that Cummings was inapplicable since the party relying on the parol agreements seeks to charge the defendant upon it, the Court held that the Statute of Frauds did not bar the suit. This rule is now well settled; only the manner of, or time for, performance of a written contract within the Statute of Frauds may be modified orally.

To determine whether an oral agreement falls within the holding of Cummings, the court must compare it against the written contract. If the modification is so material and so extensive that the original contract has disappeared, and differs so much from the original contract that it constitutes not a mere substituted performance, but a new contract that must be proved by writing, the defense is not available.

Id. at *2-3.  (Emphasis added, internal quotation marks and citations omitted).  See also Aragao v. MERS, Inc., 22 F.Supp.3d 133, 139 n.6 (D. Mass. 2014); Akar v. FNMA, 845 F.Supp.2d 381, 397 (D. Mass. 2012); Rex Lumber Co. v. Acton Block Co., 29 Mass. App. Ct. 510, 515 (1990); Mack v. Wells Fargo Bank, N.A., 29 Mass. L. Rptr. 14, 2011 WL 4837261, *6 (Mass. Super. 8/31/11); Deluca v. U.S. Bank National Assoc., 25 Mass. L. Rptr. 252, 2009 WL 839098, *3 (Mass. Super. 3/13/09) (recognizing rule but holding it inapplicable to the facts); Humbert v. Dworman, 2005 WL 2461969, * 3 (Mass. Super. 7/22/05) (in action to enforce P&S, court recognizes rule but holds it inapplicable to the facts); Jonaitis v. Robbins, 2005 WL 14736, *3-5 (Mass. Land Ct. 1/3/05) (relying on Cummings rule to enforce oral modification to P&S); First General Realty Corp. v. Carppinteri, 13 Mass. L. Rptr. 39, 2001 WL 417274, *8-9 (2/7/01) (recognizing Cummings rule but holding that oral modification in case before it was too extensive); Brown v. Smith, 1999 WL 1318987, * 3 (Mass. Super. 3/11/99) (the Statute of Frauds “does not prohibit an oral modification to a purchase and sale agreement.  The manner of, or time for, performance of a written contract within the statute of frauds may be modified orally).

The foregoing case law indicates that an oral modification to a written contract within the Statute of Frauds can be relied upon so long as the modification establishes only a substitute performance, and is not so great a change as to create an entirely new contract.  Courts have allowed parties to rely on such oral modifications for defensive purposes only, and have not allowed claims which seek to enforce the terms of an oral modification.  Johnston, 565 F.2d at 793-96; Croft, 2006 WL 1716754, *2-3.  Thus, while a party cannot sue to enforce the terms of an oral modification, that party may sue to enforce the terms of the written contract and may rely on the oral modification defensively to establish his own compliance with the contract.

In our hypothetical, although the P&S was a written contract subject to the Statute of Frauds, the parties’ agreement extending the closing date was not required to be in writing.  That agreement was a modification to the P&S, but concerned only the time for performance.  Field, 2001 WL 35937358 (“Modifications or amendments to a contract that is within the Statute of Frauds are themselves within the Statute of Frauds. This rule, however, is subject to the exception that a contract within the statute may be modified by oral agreement to extend the time or mode of performance.  Accordingly, an oral extension of a closing date may be valid, notwithstanding a requirement in the purchase and sale agreement that such extension be in writing, provided the parties orally waive the requirement of a writing.” (Emphasis added, citations omitted)).

The buyer’s action to enforce the P&S falls within the Cummings rule because the buyer brings a claim to enforce the written contract, but the seller raises the defense that the buyer did not itself comply with contract, by failing to close the deal by the original March 1, 2017, deadline.  Under these circumstances, the buyer can rely on the oral modification to show that the closing date was extended, thus establishing the buyer’s own compliance.

In summary, while it is always better practice to memorialize any legal agreement in writing, in limited circumstances the parties may orally modify even a contract subject to the Statute of Frauds.

Updated September 15, 2020.

Your appeal of a civil judgment can be derailed by a simple mistake.  A motion under Mass. R. Civ. P. 59, for a new trial or to alter or amend judgment, or for relief from judgment under Rule 60, filed more than 10 days after the judgment, does not extend the 30-day time period for appeal of the judgment.[1]  Therefore, a notice of appeal from an order denying such a Rule 59 or Rule 60 motion, filed within 30 days of that denial but more than 30 days after the underlying judgment, is not a timely appeal of the judgment itself.  It only perfects an appeal from the denial of the Rule 59 or Rule 60 motion.

Consider an example.  On June 1, 2017, the Superior Court enters judgment for the defendant in a contract dispute.  On June 15, 2017, the Plaintiff files Rule 59 motions for new trial and to alter or amend judgment.  The Court denies both post-trial motions on July 29, 2017, and on August 14, 2017, the plaintiff files a notice of appeal from both the judgment and from denial of the Rule 59 motions.  On appeal, the plaintiff argues that the trial court’s judgment was based on clearly erroneous findings of facts and that the court’s interpretation of the terms of the contract was legally wrong.  Even though the appeal was filed within 30 days after the Rule 59 motions were denied, it was not filed within 30 days of the underlying judgment and is untimely.

Mass. R. App. P. 4 states, in relevant part,

(a) Appeals in civil cases

(1)       In a civil case, unless otherwise provided by statute, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within 30 days of the date of the entry of the judgment, decree, appealable order, or adjudication appealed from….

(2)       If a motion is made or served in a timely manner under the Massachusetts Rules of Civil Procedure and filed with the lower court by any party, the time to file an appeal runs for all parties from the entry of the order disposing of the last remaining motion:

(A) for judgment under Rule 50(b);

(B) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted;

(C) to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60(b), however titled, but only if either motion is served within 10 days after entry of judgment; or

(D) under Rule 59 for a new trial.  (Emphasis added).

Motions under Rules 50(b), 52(b) and 59 must be made within 10 days after the entry of judgment.  Accordingly, a motion under any of the rules referred to in Rule 4(a)(2)(A-D) must be filed within 10 days after the judgment if it is to extend the time for appeal of the underlying judgment.

In our example, the plaintiff filed Rule 59 motions more than 10 days after the June 1 judgment.  Therefore, those post-trial motions did not extend the 30 day time for appeal of the June 1 judgment, which expired July 1, 2017.  Therefore, the plaintiff’s notice of appeal, filed on August 14, 2017, was not timely to appeal the June 1 Judgment.

Although the notice of appeal was filed within 30 days after the trial court’s July 29, 2017, denials of the post-trial motions, and timely appealed those denials, the issues on appeal are severely limited.  The Massachusetts courts treat Rule 59 motions filed more than 10 days after judgment as Rule 60(b) motion to vacate and the only issues on appeal are whether the plaintiff has satisfied the grounds for vacating a judgment listed in Rule 60(b) (excusable neglect, newly discovered evidence, fraud, etc.).[2]  Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 187-77 (1995).  See also Pereira v. Lowes Home Centers, Inc., 84 Mass. App. Ct. 1130, 2014 WL 223013, *1 n.2 (1/22/14) (unpublished Rule 1:28 opinion). See also Muir v. Hall, 37 Mass. App. Ct. 38 (1994). The plaintiff is precluded from arguing more generally on appeal that the judgment was legally or factually wrong.

For example, in Piedra, the trial court entered summary judgment for the defendant employer in the plaintiff’s wrongful termination case on November 3, 1993.  Piedra, 39 Mass. App. Ct. at 186.  Nearly five months later, on March 31, 1994, the plaintiff filed a motion for reconsideration, which the trial court denied on April 4, 1994.  Id.  The plaintiff filed a notice of appeal from that denial on April 19, 1994, less than 30 days after the denial of the motion to reconsider.  Id.  The Appeals Court held that the appeal raised only the issue whether the judge had abused his discretion in denying reconsideration, and did not raise any issue as to the underlying judgment.  According to the Appeals Court, “While the appeal from the denial of the plaintiff’s motion for reconsideration was timely as to the order denying the motion, the appeal does not necessarily bring up the underlying judgment [for defendant] which was entered on [November 3, 1993].”  Id. at 186.  (Internal quotation marks omitted).  The Court cited a treatise for the proposition that, “[a]n order denying Rule 60(b) relief is appealable; but the appeal raises only the correctness of the order itself, not the purported defects in the underlying judgment”).”  Id. at 188, quoting Smith & Zobel, Rules Practice § 60.3, at 472 (1977).

As the foregoing example illustrates, when calculating the time period within which a notice of appeal must be filed, you should take care to determine whether any of the post-trial motions listed in Rule 4(a) were filed within 10 days of the judgment.  If they were filed more than 10 days after judgment, then you must file a notice of appeal from the underlying judgment within 30 days of that judgment, regardless of when the trial court rules on the post-trial motions.  Failure to keep this rule in mind may result in loss of your appellate rights.

———

[1] Time periods other than 30 days apply to certain appeals (e.g. appeals in cases to which the Commonwealth is a party).

[2] Rule 60(b) lists the following grounds for vacating a judgment: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) , (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

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When Jim wakes one morning to find his prize winning lamas at the bottom of a 20 foot sinkhole, he suspects something is wrong.  He had spent the previous evening sitting on his back porch, watching his lamas and enjoying the lengthening shadows the setting sun cast over his idyllic property.  Now, little remains of that vista, the majority of Jim’s backyard having subsided into the deep sinkhole.  The lamas, while unhurt, are complaining loudly.

After rescuing his lamas, Jim makes some calls and arranges to have his property inspected by a number of civil engineers.  They all agree that the sinkhole has been caused by a lowering of the groundwater table under Jim’s property due to excessive pumping from wells on adjacent property owned by ACME Water Products, Inc.  When Jim politely asks ACME to stop destroying his land, ACME responds by increasing its pumping, bulldozing a fence on the property line, and installing a new well, located entirely on Jim’s land.

Jim sues ACME, asserting various tort claims and one for unfair or deceptive trade practices under Massachusetts G.L. c. 93A, §§2, 9, seeking treble damages and attorney’s fees.  ACME moves to dismiss the c. 93A claim, arguing that no matter how egregious its conduct may have been, c. 93A simply does not apply because ACME and Jim have no business relationship with each other.  Moreover, ACME asserts that such a business relationship requirement applies not only to claims by one business against another under c. 93A, §11, but also to consumer claims under §9.  ACME is probably right.

The business relationship requirement.

It is well established that a viable c. 93A claim must allege that the plaintiff and defendant have a preexisting business relationship.  In Breneman v. Wolfson, 62 Mass. App. Ct. 1115, 2004 WL 2902454 (12/15/04) (unpublished Rule 1:28 opinion), a case involving claims between neighboring landowners, the Massachusetts Appeals Court stated,

The plaintiffs may invoke c. 93A as a general consumer or business protection statute only if the underlying tort arose in a business context, that is, if the parties were “engaged in more than a minor or insignificant business relationship.” Standard Register Co. v. Bolton-Emerson, Inc., 38 Mass.App.Ct. 545, 551 (1995). See also Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 22-23 & n. 33, cert. denied, 522 U.S. 1015 (1997). But here the defendants had “no contractual or business relationship with the plaintiffs.” Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 324 (1983). Indeed, insofar as the record shows, other than being abutting landowners the parties had no relationship whatsoever, the underlying tortious conduct was not related to any mutual business concern, and the plaintiffs’ c. 93A claims may be disregarded. See L.B. Corp. v. Schweitzer-Mauduit Intl., Inc., 121 F.Supp.2d 147, 152 (D.Mass.2000) (where abutting landowners both operated businesses on their respective properties but had no business or commercial relationship, the plaintiff could not maintain c. 93A claim against neighbor premised on injuries caused by neighbor’s subterranean water pumping).

Id. at *2.  (Emphasis added).  Similarly, in L.B. Corporation v. Schweitzer-Mauduit Intern., Inc., 121 F.Supp.2d 147 (D. Mass. 2000), another case involving neighboring landowners, the United States District Court for the District of Massachusetts explained,

Defendants have moved for summary judgment on Count VII of plaintiff’s Amended Complaint, which alleges that the conduct of defendants in their operation of Well # 5 constituted an “unfair or deceptive” business act or practice prohibited by Mass.Gen.Laws ch. 93A §§ 2 and 11. Defendants contend that for Chapter 93A liability to attach, there must be some business relationship between the parties. Here, although both companies were “engaged in trade or commerce” under the statute, they were not engaged in business transactions with each other. Mass.Gen.Laws. ch. 93A § 11. The parties’ only relationship, defendants contend, was as abutting landowners, so the statute is inapplicable. …

… Chapter 93A is a consumer protection law that also encompasses business transactions. It is intended to protect against unfair and deceptive practices in trade, not unfair practices in general. Apart from claims of unfair competition, a plaintiff must allege some sort of transaction between the parties for liability to attach under sections two and eleven…. This is the “common thread” of 93A cases. Plaintiff’s position, if accepted, would run the danger of converting any tort claim against a business into a Chapter 93A claim, because all torts encompass “acts or practices” that could arguably be considered “unfair.” As Judge Keeton noted, this position tests the limits of common sense.

Id. at 151-52.  (Emphasis added, citations and internal quotation marks omitted).

And in Steinmetz v. Coyle & Caron, Inc., 2016 WL 4074135 (D. Mass. 7/29/16), the Court stated,

Apart from claims of unfair competition, a plaintiff must allege some sort of transaction between the parties for liability to attach. Where there [is] no relationship between the plaintiffs and the defendants at all prior to the accident … it is axiomatic that the alleged wrongful conduct did not arise in a business context between them.’ While Plaintiffs correctly note that the absence of privity of contract is not an automatic bar to a Mass. Gen. L. c. 93A claim, [t]he lack of any business relationship between [Plaintiffs] and [Coyle & Caron] is fatal to the 93A claim.

Id. at *11.  (Internal citations and quotation marks omitted).

Numerous other Massachusetts and federal cases support the conclusion that a plaintiff has no c. 93A claim where the parties had no pre-litigation business relationship.  Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 564 (2008) (“A commercial transaction need not occur in the ordinary course of a person’s trade or business before liability under G.L. c. 93A will be imposed. However, we have held that the mere filing of litigation does not of itself constitute trade or commerce. In the circumstances here, even if we were to assume that Milliken’s efforts to secure the repayment of its trade debt were commercial in nature, Milliken and the defendants were not engaged in trade or commerce with each other and therefore acting in a business context.” (Emphasis added, citations and internal quotation marks omitted)); Chervin v. The Travelers Ins. Co., 448 Mass. 95, 112-13 (2006) (“While the plaintiff correctly maintains that part of the defendant’s business is litigating subrogation claims, he cannot establish that he had any relevant business transaction with the defendant which would serve as a predicate for liability under G.L. c. 93A, §§ 2 and 11.”); Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 238 (2008) (“Privity is not required to maintain an action under c. 93A, § 11, so long as the parties are engaged in more than a minor or insignificant business relationship.” (internal quotation marks omitted)); Foreign Car Center, Inc. v. Essex Process Service, Inc., 62 Mass. App. Ct. 806, 814-15 (2005) (“Foreign Car’s G.L. c. 93A claim against Essex and Curran is disposed of by Cady v. Marcella …, holding there was no conduct of trade or commerce between the plaintiffs and the deputy sheriff who seized the property. Accordingly, the motion judge did not err in granting summary judgment on the claim.”); Cady v. Marcella, 49 Mass. App. Ct. 334, 343 (2000) (“While the Cadys justifiably feel that the seizure of half of their house to satisfy another’s debt was unfair, this statute remains unavailable: There was no conduct of trade or commerce between the Cadys and Adams or Marcella…. This claim was properly dismissed.”); Standard Register Co. v. Bolton-Emerson, Inc., 38 Mass. App. Ct. 545, 551 (1995) (similar to Giuffrida, above); Arthur D. Little, Inc. v. East Cambridge Sav. Bank, 35 Mass. App. Ct. 734, 743 (1994) (“The Superior Court judge correctly determined that the acts complained of did not occur while the parties were engaged in the conduct of trade or commerce…. No commercial relationship ever existed between the parties; their only contact occurred in the context of this litigation.”); Knapp v. Powicki, 2012 WL 11975703, * 2 (Mass. Super. 1/30/12) (“no viable c.93A claim where plaintiff and defendant had no relationship other than that they were abutting landowners”); Mitzan v. Medview Services, Inc., 1999 WL 33105613, *9 (Mass. Super. 1/16/99) (“[T]he history and development of Chapter 93A suggest that it was enacted to protect consumers and business entities against unfair acts and practices in transactions between them. Thus, numerous courts have held that there must be some transactional relationship between the parties in order to sustain a claim under Chapter 93A.” (Citations omitted)); Joe Hand Promotions, Inc. v. Rajan, 2011 WL 3295424, *7 (D. Mass. 7/28/11) (“Plaintiff’s Complaint states that both parties ‘engaged in trade or commerce’ … but does not state that parties engaged in business practice together. Plaintiff’s Ch. 93A claim fails for failing to state a claim” (citations and footnote references omitted)); John Boyd Co. v. Boston Gas Co., 775 F.Supp. 435, 440 (D. Mass. 1991) (“Taken together, these cases demonstrate that, although the Supreme Judicial Court has yet to define the outer limits of the relationship required under Chapter 93A, some business connection between the parties is an essential element of liability under the statute.”).

A pre-existing business relationship is required for both §9 and §11 claims.

Although ACME argued that the business relationship requirement applies only in business v. business §11 claims, a review of Massachusetts case law leads to the opposite conclusion.  In a number of Massachusetts cases, courts have applied the business relationship requirement to §9 claims.  In Swenson v. Yellow Transportation, Inc., 317 F. Supp.2d 51 (D. Mass. 2004), the plaintiff was injured in an automobile accident with one of defendant’s trucks.  She brought a claim under c. 93A, §9.  The Court dismissed the c. 93A claim, noting that, “While 93A is a statute of broad impact, it was not intended to augment every other legal or equitable remedy available to parties injured in automobile accidents.”  Id. at 55.  The Court held that the c. 93A claim failed because the plaintiff had no business relationship with the defendant.  According to the Court,

Plaintiffs’ claim under ch. 93A fails for the additional reason that the conduct complained of was not undertaken in a business context or as part of a business transaction between Yellow (or Thing) and the plaintiffs. Thus, while Yellow, as a business, is itself engaged in trade or commerce, it did not have any commercial dealings involving the plaintiffs and, therefore, ch. 93A is inapplicable.

It is well-established that “the proscription in § 2 of ‘unfair or deceptive acts or practices …’ must be read to apply to those acts or practices which are perpetrated in a business context.” Poznik v. Mass. Med. Prof’l Ins. Assoc., 417 Mass. at 52, 628 N.E.2d at 3 (internal citation omitted, emphasis in original). Thus, ch. 93A “is intended to protect against unfair and deceptive practices in trade, not unfair practices in general. Apart from claims of unfair competition, a plaintiff must allege some sort of transaction between the parties for liability to attach under sections two and eleven.” L.B. Corp. v. Schweitzer–Mauduit Intern., Inc., 121 F.Supp.2d 147, 152 (D.Mass.2000) (summary judgment granted on ch. 93A claim where there was no business relationship between the parties), and cases cited. Accord Miller v. Mooney, 431 Mass. 57, 64–65, 725 N.E.2d 545, 551 (2000) (heirs of deceased client could not maintain a claim under ch. 93A against decedent’s attorney as “[t]he defendant was not engaged in trade or commerce with the plaintiffs within the meaning of G.L. c. 93A.”) (emphasis added). In the instant case, there was no relationship between the plaintiffs and the defendants at all prior to the accident, thus it is axiomatic that the alleged wrongful conduct did not arise in a business context between them (or even between Yellow and any other travelers on the road). Therefore, the claim under ch. 93A fails.

Id. at 56-57. (Emphasis added, footnote references omitted).

Similarly, in Girard v. Triumph Leasing Corp., 2005 WL 48266872 (Mass. Super. 7/1/05), another auto accident case, the plaintiff brought a §9 claim against the defendant.  Rejecting that claim, the Court stated,

In Count V, the plaintiff asserts that the defendant has committed unfair and deceptive acts or practices in violation of G.L. c. 93A, §2. That statute reads, in pertinent part, “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”(Emphasis supplied). Section 9 of c. 93A provides a civil remedy for any person injured by another’s use of any act or practice declared to be unlawful by §2 or any regulation issued thereunder. The Supreme Judicial Court has stated that “[t]he purpose of c. 93A is to improve the commercial relationship between consumers and business persons and to encourage more equitable behavior in the marketplace.” Poznik v. Massachusetts Med. Professional Ins. Ass’n, 417 Mass. 48, 53 (1994). To determine whether a business context is implicated here, the underlying nature of the plaintiff’s claims must be examined. Darviris v. Petros, 442 Mass. 274, 280 (2004). It is clear that the underlying nature of the plaintiff’s claim is in negligence and is unrelated to any business context. Here, there was no business relationship, indeed no relationship at all, between the parties before the accident. Without a business context to the relationship between the parties, c. 93A is inapplicable.

Id.  (Emphasis in last two sentences added).  See Morrissey v. New England Deaconess Association-Abundant Life Communities, Inc., 90 Mass. App. Ct. 1105, 2016 WL 4723459, *3-4 (9/9/16) (unpublished Rule 1:28 opinion).

In other cases, the plaintiff’s claims obviously were brought under §9, but there is no express reference to that section.  In Miller v. Mooney, 431 Mass. 57 (2000), a testatrix’s children sued the attorney who drafted her estate documents for, among other claims, negligence and violations of c. 93A.  Their c. 93A claims must have been brought under §9 as they were not engaged in business.  There is no reference to §11.  The Supreme Judicial Court affirmed the trial court’s entry of summary judgment for the attorney on the c. 93A claim, noting that, “The defendant was not engaged in trade or commerce with the plaintiffs within the meaning of G.L. c. 93A.”  Id. at 63-64.

In Breneman, 2004 WL 2902454, the plaintiffs were owners of property abutting the defendant’s airport.  They sued after the defendant entered their land and damaged it in the course of extending the airport’s runway.  Clearly, the plaintiffs were not suing under §11 as persons in business, but were instead individuals suing under §9.  The Breneman Court recognized the business relationship requirement applies in consumer actions, stating,

The plaintiffs may invoke c. 93A as a general consumer or business protection statute only if the underlying tort arose in a business context, that is, if the parties were “engaged in more than a minor or insignificant business relationship.” … But here the defendants had “no contractual or business relationship with the plaintiffs.” Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 324 (1983). Indeed, insofar as the record shows, other than being abutting landowners the parties had no relationship whatsoever, the underlying tortious conduct was not related to any mutual business concern, and the plaintiffs’ c. 93A claims may be disregarded….

Id. at *2.  (Emphasis added).

In Cady, the plaintiffs were property owners.  They had contracted for installation of a modular home by a contractor, but the contractor’s judgment creditor, with whom the plaintiffs had no relationship, seized a portion of the home with the assistance of a deputy sheriff.  Plaintiff property owners sued both the judgment creditor and the deputy sheriff.  Again, those claims must have been bought under §9.  There is no reference to §11.  The Court rejected the c.93A claim due to the lack of any business relationship between the plaintiff and defendant.  49 Mass. app. Ct. at 343.

In Knapp v. Powicki, 2012 WL 11975703 (Mass. Super. 1/30/12), the plaintiff property owners sued neighboring owners.  Following Breneman, the Court dismissed the claims, which must have been §9 claims, because the parties had no business relationship.

The business relationship requirement was again applied to a §9 claim in Camacho v. Basteri, 1995 WL 1688631 (Mass. Super. 12/28/95), where the plaintiff homeowners sued their neighbor for, among other things, nuisance, based on the neighbor’s illegal operation of a dog kennel in a residential neighborhood.  The Court dismissed the c. 93A claim due to the absence of any business relationship between the parties.  Id. at *1-2.

And in Steinmetz, the plaintiff property owners, who were seeking conservation commission approval to build a home, sued a company hired by opponents of the project for allegedly preparing false renderings of the proposed home.  Again, the plaintiffs’ claim must have been brought under §9 as they were not engaged in any business.  The Court dismissed the c. 93A claim due to the absence of any business relationship between the parties.  2016 WL 4074135 at *11.

More generally, Courts have recognized that, “[t]he purpose of c. 93A is to improve the commercial relationship between consumers and business persons and to encourage more equitable behavior in the marketplace.” Poznik v. Massachusetts Med. Professional Ins. Ass’n, 417 Mass. 48, 53 (1994) (Emphasis added).  See also Morrissey, 2016 WL 4723459, *3; Girard, 2005 WL 48266872; Swenson, 317 F. Supp.2d at 57.  Similarly, in Mitzan, the Court pointed out that, “the history and development of Chapter 93A suggest that it was enacted to protect consumers and business entities against unfair acts and practices in transactions between them.”  1999 WL 33105613, *9.  Thus, the underlying purpose of c. 93A supports the statute’s application only where a commercial relationship exists between the plaintiff and defendant.

The same conclusion follows from the structure of c. 93A.  In order to have a viable claim under either §9 or §11, a plaintiff must establish that the defendant engaged in an unfair or deceptive act or practice “in the conduct of any trade or commerce” under §2.  The requirement that the claim arise from trade or commerce or in a business context is based in §2 of the statute.  And a court determines whether a claim arises from trade or commerce or in a business context by requiring that the parties have a business relationship with each other.  See First Enterprises, Ltd. v. Cooper, 425 Mass. 344, 347 (1997); Cady, 49 Mass. App. Ct. at 343; Arthur D. Little, 35 Mass. App. Ct. at 743. Accordingly, the business relationship requirement is not limited to §11 cases, but applies to all c. 93A claims.

Conclusion.

The lesson to be drawn from the foregoing discussion is that while c. 93A offers a broad and powerful remedy for many wrongs, it is not a replacement for common law tort claims.  Not every form of harmful conduct, no matter how outrageous, falls under c. 93A.  At a minimum, c. 93A applies only where the wrongful conduct occurs in the context of a business relationship between the plaintiff and defendant.

When the retaining wall separating his property from Jerry’s abutting land began to collapse onto Bob’s land, Bob suggested that Jerry repair the wall.  Jerry, in turn, thought it would be far better if Bob paid the $50,000 repair cost, and made this clear in a certified letter from his attorney.  It is unclear whether the wall is located on Bob or Jerry’s land.  Which of the owner’s must repair the wall?  Or must they both?  The answer depends on the history of the wall more than on its location.

Bob’s and Jerry’s respective lots are located on a hill, with Jerry’s land higher on the slope than Bob’s.  Neither Bob nor Jerry has erected any structures on their lots.  Many years ago, the portion of Bob’s property nearest Jerry’s land was at a higher elevation than the remainder of Bob’s land.  Wishing to create a level lot, a prior owner of Bob’s land excavated the portion near Jerry’s land, to lower its grade to that of the remainder of the lot.  Because this excavation left Jerry’s property at a much higher elevation than Bob’s excavated lot, and in danger of collapse, Bob’s predecessor built the retaining wall to provide adequate lateral support to Jerry’s land.  There is some evidence that some or all of the wall is actually on Jerry’s land.  Neither Jerry nor any of his predecessors played any part in building the wall.

The rule of lateral support.

Under the rule of lateral support, a landowner has an absolute right to the continued stability of the land in its natural condition and if a neighboring owner alters his or her land so as to remove the lateral support for the landowner’s land, that neighbor is liable for any harm caused to the landowner’s land. To prevent such damage, the neighbor responsible for making alterations which deprive the landowner’s land of support may build a retaining wall.  In such a case, the neighbor and all of the neighbor’s successors in title, have a continuing duty to maintain that wall.  A party who interferes with an owner’s right to lateral support is strictly liable for resulting harm to the owner’s land, without proof of negligence.  Although strict liability does not apply to harm to structures on the land[1], that exception is irrelevant to Bob and Jerry because they placed no structures on their lots.

The duty to maintain or repair a retaining wall.

In Gorton v. Schofield, 311 Mass. 352 (1942), the Massachusetts Supreme Judicial Court considered the right to lateral support as it applies to retaining walls.  In that case, a wall on the defendant’s land provided support for the plaintiff’s land which was at a higher elevation.  Although there was no direct evidence as to who had built the wall, the SJC affirmed the trial court’s conclusion that the evidence supported an inference that the defendant’s predecessor had made the excavation and that the same person had built the retaining wall.  Id. at 355.  Regarding the duty to repair the wall, the Court stated,

The decisive question is what are the legal duties and responsibilities of the defendant with relation to the maintenance of the retaining wall built by a predecessor in title in the circumstances before set forth. The law with relation to lateral support is of ancient origin and is firmly established. The right of an owner of land to the support of the land adjoining is jure naturae, like the right in a flowing stream. Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition * * * [and] in the case of land, which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition, unaffected by any act of his neighbor; and, if the neighbor digs upon or improves his own land so as to injure this right, may maintain an action against him, without proof of negligence.

This being the basic law, the question in the case at bar is whether the defendant, the present owner of the land upon which the excavation was made and the wall built by a predecessor in title, is bound to maintain the wall in such condition as to prevent damage to the plaintiff’s land….  The plaintiff has cited in support of her position … Foster v. Brown, 48 Ont.Law Rep. 1. In the last case cited it appeared that an excavation had been made upon land by the predecessor in title of the defendant, and that the former had built a retaining wall for the purpose of providing support to the plaintiff’s adjoining land; that this wall ‘got out of repair and failed to answer the purpose for which it was built’ … The court held, in substance, that the defendant was responsible for the damage that the plaintiff had sustained, saying, at pages 5, 6, that it saw ‘no reason why, if a person who is in possession of land in which there is an excavation which is a source of danger to the public, although the excavation was not made by him but by a predecessor in title, is liable for the consequences of his permitting the dangerous condition to continue, the same rule should not be applied where a lateral support has been withdrawn by a predecessor in title, and the condition so caused has been permitted to remain and to cause injury to his neighbor, the owner of the land at the time the injury occurs should not be answerable for it.’ … And at page 6, Fry, L. J., expressing his concurrence said, in part: ‘I am unable to understand why the failure of a subsequent owner to provide the necessary support, and a fortiori where he suffers a retaining wall to decay, is not equally a continual or continued withdrawal of support * * *.’ See 10 B.R.C. 918, and annotation.

***

We have already said, in substance … that the right to lateral support of soil in its natural state is a property right which naturally attaches to and passes with the soil without any grant thereof. We concur in the reasoning in Foster v. Brown, … and are of opinion that the burden of providing lateral support to the plaintiff’s land in its natural condition is one of continued support running against the servient land.

Id. at 356-58.  (Emphasis added, citations and internal quotation marks omitted).

This rule is in accordance with the Restatement (second) of Torts, §817(1), which states, “One who withdraws the naturally necessary lateral support of land in another’s possession or support that has been substituted for the naturally necessary support, is subject to liability for a subsidence of the land of the other that was naturally dependent upon the support withdrawn.”

In Rubin v. Walpate Const. Mgmt., Inc., 10 Mass. L. Rptr. 377, 1999 WL 706710 (Mass. Super. 8/24/99), the Superior Court quoted Gorton and made clear that the duty to repair a wall falls on the person who altered the grade of his land, and later owners of the same property.  According to the Court,

The Rubins invoke the obligation to provide “lateral support” as the basis for their claim with respect to defendants’ duty to repair and maintain the allegedly collapsing retaining wall. A landowner is entitled to “the support of the land adjoining,” and therefore excavations on adjoining property that would undermine a plaintiff’s land or cause it to collapse give rise to a claim for damages and/or injunctive relief. See Gorton v. Schofield, 311 Mass. 352, 356-59, 41 N.E.2d 12 (1942); Gilmore v. Driscoll, 122 Mass. 199, 201 (1877); Ahern v. Warner, 16 Mass.App.Ct. 223, 226, 450 N.E.2d 662 (1983). The obligation to provide lateral support is imposed not only on the party that performed the excavations undermining a plaintiff’s land, but on subsequent owners of the property, who have an ongoing obligation to maintain and repair the retaining walls or other structures that provide the necessary support following the excavations. Gorton, supra.

Id. at *1.  (Emphasis added, footnote reference omitted).

In a footnote, the Court explained that the duty of repair is born by the person who altered the natural topography, regardless of on whose property the wall is located.

The complaint also does not specify when the retaining wall was constructed or who constructed it. By implication from the allegation that the wall is entirely on the Sandjajas’ property, one would infer that the alteration in the land that necessitated the construction of the retaining wall was done by some prior owner of the Sandjajas’ parcel. If, however, the need for the retaining wall was created by excavation performed by some predecessor in title to the Rubins, then it would be the Rubins’ obligation to provide lateral support to the Sandjajas’ property and the Rubins’ duty to maintain the wall, not vice versa. The doctrine of lateral support imposes an obligation on the party that has altered the land in the first place, requiring that the party doing the alteration provide some adequate alternative to maintaining appropriate support for any land that has been destabilized by the alteration.

Id. at *2 n.2.  See also Feinzig v. Ficksman, 42 Mass. App. Ct. 113 (1997), where although the retaining wall at issue was located partially on defendant’s property, the Court declined to impose a duty to maintain the wall, noting that,

For all that appears, it was the owner of the [plaintiff’s] lot who altered the natural topography and built the retaining wall.  The right to lateral support, classically, is the right of a neighbor to have land remain in its natural condition and is maintained against the person who digs upon or improves his own land so as injure [sic] that right.

Id. at 119.  The same right to lateral support may be invoked where the defendant has filled his land to a higher elevation rather than excavating his land to a lower grade.  Rubin, 1999 WL 706710, *1-2.

Bob and Jerry’s case.

In the scenario outlined above, the retaining wall was originally constructed by Bob’s predecessor in title, in connection with an alteration of the grade of Bob’s property.  Accordingly, as the party who altered the natural topography, the past owner of Bob’s property had the duty to maintain the retaining wall so as to protect the right of Jerry’s property to lateral support.  That duty ran with the land and was imposed by all successive owners, including Bob.  Moreover, successive owners of Bob’s property had the duty to maintain the wall regardless of whether the wall was located entirely on Bob’s property.

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[1] The right to lateral support discussed above pertains only to the land itself, not to any buildings or improvements thereon.  Where a defendant’s excavation or other alteration of the land removes support from the plaintiff’s land, causing damage to the land and buildings, the plaintiff can recover in strict liability only for the injury to the land itself, not for any injury to the buildings.  Moreover, the plaintiff must prove that the alteration made by the defendant would have caused damage to the plaintiff’s land (i.e., caused it to subside) even if the land had not born the extra weight of the buildings thereon.  To recover for damage to structures, the plaintiff must prove that the defendant was negligent.  Gilmore v. Driscoll, 122 Mass. 199, 201 (1876).  See also New York Central R. Co. v. Marinucci Bros. & Co., 337 Mass. 469, 472 (1958); Kronberg v. Bulle, 247 Mass. 325, 328 (1924); Triulzi v. Costa, 296 Mass. 24, 27 (1936); Rubin, 1999 WL 706710, *1 n.1; LB Corp. v. Schweitzer-Mauduit Intern., Inc., 121 F.Supp.2d 147, 153 (D. Mass. 2000) .

When water began dripping from the ceiling of her unit in the Desert Pines Condominium, Amy immediately contacted the condominium’s board of trustees.  The board, in turn, called Fixit, Inc., a company employed by the board to manage the condominium.  An inspection revealed that a portion of the condominium’s roof had deteriorated, allowing water to pool above the ceiling of Amy’s unit.  Pursuant to its contract with the condominium, Fixit repaired the roof and declared the problem solved.  Amy was overjoyed, until her kitchen ceiling collapsed and mold blossomed on walls throughout her unit.

Amy sued Fixit for breach of its contract with the condominium, which required that all repairs be completed in a workmanlike manner. Although she was not a party to the contract, Amy claimed to be a third-party beneficiary of the agreement because she would have benefited if the repairs had been done properly.  On these facts, a Massachusetts court would very likely dismiss her contract claim.

Massachusetts courts have adopted Restatement (second) of Contracts, §302 and related sections, governing the rights of third-party beneficiaries.  James Family Charitable Foundation v. State Street Bank & Trust Co., 80 Mass. App. Ct. 720, 723 (2011), citing Rae v. Air–Speed, Inc. 386 Mass. 187, 195–196 (1982).  Section 302 states,

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

Restatement (Second) of Contracts § 302.  As Amy was not a creditor of either party to the management contract, she must satisfy subsection (b) by establishing that the contracting parties intended the contract to benefit her.  “In order to recover as a third-party beneficiary, the plaintiffs must show that they were intended beneficiaries of the contract….” Cumis Ins. Society, Inc. v. BJ’s Wholesale Club, Inc., 455 Mass. 458, 464 (2009), quoting Spinner v. Nutt, 417 Mass. 549, 555 (1994).

“Under Massachusetts law, a contract does not confer third-party beneficiary status unless the ‘language and circumstances of the contract’ show that the parties to the contract ‘clear[ly] and definite[ly]’ intended the beneficiary to benefit from the promised performance.”  Cumis, 455 Mass. at 466, quoting Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 366–367 (1997).  See also Go-Best Assets, Ltd. v. Citizens Bank of Massachusetts, 463 Mass. 50, 61 n.12 (2012); Alford v. Capitol Realty Group, Inc., 88 Mass. App. Ct. 1106, 2015 WL 5602608, * 2 (9/24/15); Try Switch. Ltd. v. Endurance Intern. Group, 83 Mass. App. Ct. 1131, 2013 WL 2096605, *1 (5/16/13) (unpublished Rule 1:28 opinion); James Family, 80 Mass. App. Ct. at 724.

It is not enough that the plaintiff receives an incidental benefit from the contract.  The parties to the contract must have intended such benefit.  “That the plaintiffs derive a benefit from a contract between others does not make them intended third-party beneficiaries and does not give them the right to enforce that agreement.”  Cumis, 455 Mass. at 464.  See also James Family, 80 Mass. App. Ct. at 724 (“In contrast to an intended beneficiary, an incidental beneficiary obtains no right to enforce the contract.”); Restatement (second) of Contracts, §315.

As there is no evidence that either the condominium or Fixit intended their contract to benefit Amy or other unit owners, Amy is not a third-party beneficiary and cannot enforce the contract.