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No. 96-2331
Plaintiffs - Appellants,
v.
Defendants - Appellees.
____________________
____________________
Before
_____________________
John H. Henn, with whom Stephen B. Deutsch and Foley, Hoag &
____________
__________________
_____________
Eliot were on brief for appellees.
_____
____________________
____________________
DOWD,
DOWD,
This
dispute concerns
questions
of
title
to
number of
subdivision located
on Martha's
developers
subdivision,
of
the
Vineyard.
and
these lots,
into
Toward
real
estate
Plaintiffs are
Defendant
is
the
Defendant decided to
the
title
issued title
as an entity.
in
claims against
lots
adverse
try to
obtain
1990 agreement
to
develop the
property,
and had
otherwise
committed
fraud, negligence,
violation
of
practices.
Mass.
Gen.
Defendant
Laws
responded
declaratory
judgment that a
was
enforceable
valid,
parties.
The
"agreement to
ch.
fiduciary
93A
with
for
court
counterclaim
all
disputes
granted
summary
agree," and
duty, and
unfair
and settled
district
breach of
business
for
the parties
between the
judgment
to
an unenforceable
agreement was
a valid
summary
district
Plaintiffs
now appeal
the district
judgment to
Defendant.
Plaintiffs
court's
subsequent
denial
-2-
of
court's grant
also
appeal
their proposed
of
the
second
amended complaint
reasons set
that based
on the
ground that
out below, we
on the
it was futile.
affirm the
For
district court's
undisputed facts,
the
holding
to
BACKGROUND
BACKGROUND
Acres
II,"
148-unit
the developers of
subdivision
located
the "Vineyard
in
Edgartown,
Massachusetts.
Lett
initially took
title to
the lots
in her
to Lett
in her capacity
Realty Trust."1
as "trustee" of the
"Vineyard Acres II
then mortgaged
to Old
Colony Cooperative
Bank ("Old
Colony").
name
Subsequently,
to
NTNY's predecessor
learned of
numerous
was obliged
policies noted
above.
In 1987,
as a
result of
these adverse
claims,
District
NTNY's predecessor
Court for
brought suit
the District
of
in
the United
Massachusetts ("The
States
Fraud
____________________
This Court
was unable to
record whether
-3-
they
did not
have
good
title to
the
land, and
fraudulently
induced
NTNY's
predecessor
purchasers of the
them mortgages.
to
issue
title
policies
to
the
v. Lett,
____
NTNY's
entity.
TRW,
Toward this
its predecessor
as an
name of
Agreement").
This
an understanding
that had been reached by the parties with regard to TRW's plan to
acquire
the lots
foreclosure sale.
"for good
that Old
Colony was
preparing
to sell
at a
and valuable
consideration as
described below,
[the
this agreement
and sale
of the Vineyard
to work
cooperatively in
Acres II subdivision."
The agreement
All Parties
agree
to use
their best
and
a mortgage held by
New
Colony on
England-Old
intends
acquires
to foreclose.
said
foreclosure sale, it
for the benefit
to
work
which
Bank of
said bank
portion
pursuant
to
of all Parties in
cooperatively
to
the
portion
an effort
accomplish
the
Parties' objective of
developing, marketing,
and
Vineyard
selling
the
Acres
II
subdivision.
. . . .
All
Parties
objective is to
agree
that
their
mutual
-4-
undue delay.
The Parties
agree to
sale
follows:
all
Vineyard
Acres
proceeds of
II
lots
as
incurred
and proceeds
exceeding that
fixed
The
predecessor
parties
signed
the
agreement,
bidder at the
and
NTNY's
foreclosure sale.
to
the benefit of
the precise
settlement
trial.
terms of
of the
On March
an overall
agreement which
was still
("1991 Agreement").
This 1991
would include
moving toward
such an agreement
and Giuliano.
memorialize and
confirm the
and
Lett
interests
(as
trustee)2 agreed
within the
you and
TRW have
to
Vineyard Acres
transfer
II
various specified
subdivision to
NTNY's
predecessor in
exchange for
specified consideration,
including
____________________
Lett contends
the parts of
-5-
between
the
parties, including
the
Fraud
Action, was
to
be
dismissed.
Additionally, NTNY's
best efforts
subdivision.
were developed
proceeds
to develop,
Further, the
and sold,
above NTNY's
predecessor agreed to
the lots
Lett and
Giuliano
predecessor's "sunk
use its
within the
would receive
costs."
The
all
items
aspects of
On
Giuliano
NTNY's
the day
the 1991
Agreement was
signed, Lett
and
NTNY,
1990 agreement,
how the
court system
required Lett to
would evaluate
execute, as part of
the
this loan
released
any
claims she
Insurance Company."
claims
may
As
printed, the
against "Nations
Park,
Kansas."
parties
Title
NTNY has
intended this to
have had
against
"Nations Title
document released
Insurance Company,
always contended,
be NTNY (Nations
Lett's
of
Overland
however,
that all
Title Insurance-NY),
which was the company making the 1994 loan and taking back a note
and mortgage.
York
Inc.
and family"
added
after
the
printed name
of
the
-6-
she signed
document, Lett
also
assigned
"any
and all
been added.
right,
In this
title
and
interest that she has or may have had in any and all lands in the
Town
of
Edgartown,
County
done so that it
Dukes,
Giuliano."
Commonwealth
of
was
the execution of
of
to work with
Giuliano $165,000,
taking back a
property owned by
among
other things, fraud and violation of Mass. Gen. Laws ("G.L.") ch.
argument
was
enforceable
capacity,
their
agreement
an
claim
that
which
interest
in
the
gave
the
The heart of
1990
Lett,
Vineyard
Plaintiffs'
agreement
in
II
her
was
an
individual
property.
NTNY
counterclaimed
1990 agreement
was an
that the
because
unenforceable "agreement
Lett transferred
predecessor.
all
to agree,"
title in
the property
and
the parties
to NTNY's
agreement
she
did not
transfer the
property
she held
as a trustee,
as an
individual
the language of the 1994 agreement, Lett released only her claims
-7-
of any
claims
against NTNY.
Further,
documrty to Giuliano,
property
Lett claims
that in
this 1994
individual interest in
the
The district
judgment.
The
court
held
unenforceable "agreement to
alternative
ruling,
that
that
agree."
Lett
had
the
motion for
1990
letter
given
up
any
summary
is
an
held, as an
rights she
and enforceable.
file
an amended complaint
particularity.
their
Finally,
93A claim
the court
to
if they
were able
to meet
the jurisdictional
Following this
submitted
a Proposed
grant of
summary judgment,
Second Amended
Complaint.
amend as futile.
Plaintiffs
The
district
This appeal
followed.
CONTRACT INTERPRETATION
CONTRACT INTERPRETATION
This
agreements
involved in
their enforceability:
this matter,
and
the determination
of
-8-
1991
the
Giuliano
all of
Lett's
rights
and title
with
assigned to
regard to
the
1.
1.
Standard of Review
Standard of Review
We
review
the
district
court's
grant
of
summary
nonmovant.
novo review
only if it
resort
speculation.
to
court's
grant of
pleadings,
admissions on
there is no
moving party
An inference is "reasonable" on de
can be
Hidalgo
_______
F.3d 328
summary
depositions,
(1st
v.
Cir. 1997).
judgment
is
answers
to
is entitled
to a
An
The
appropriate
"the
interrogatories,
and
judgment
district
when
genuine issue as to
evidence without
as a
that the
matter of
law."
_______
_____
on
any independently
sufficient ground."
2.
2.
-9-
a summary judgment
Mesnick v.
_______
General
_______
Under
agreement
Massachusetts
law,
is a contradiction in terms
an "agreement
to
reach an
than an agreement to
terms, or
will
be unenforceable."
v. General Elec.
_____________
Co., 347 Mass. 613, 626, 199 N.E.2d 538, 548 (1964).
___
"agreement to
for
they
agree" or an
signed
the
contract
key issue
and,
if
so,
whether
the
initial
agreement included
all of
Packaging Corp. v.
_______________
a finding that
sufficient
Id.
___
The
with
the
parties.
a binding
terms
must
and
clarity
aid
of
Id.
___
is contemplated does
essential
definiteness
interpretation
Rand-Whitney
____________
start.
terms."
or nonbinding, depending
not defeat
the essential
be set
that
existing
and
forth
court,
the
"with
by
contemplated
Eastern Petroleum Products, 283 Mass. 383, 388, 186 N.E. 562, 564
__________________________
(1933).
-10-
review of
the 1990
Agreement in
agreement indicates
an unenforceable "agreement
no intention by
the instant
case
to agree."
the parties to be
The
bound to
particular terms;
the
development, marketing
subdivision."
reasonable
of
the Vineyard
Acres II
efforts" and
generalities,
actions to
and sale
"reasonable
but contains
be taken by
responsibilities assigned
no
specific
either party.
to
amounts,"
and other
figures, deadlines
This lack of
either party
makes
such
or
duties and
this
"Letter
which
it could
apply to enforce
sufficient
enforce it).
the contract.
See
___
so court can
George W.
_________
terms with
interpret and
exact amount NTNY would retain from the lot sale proceeds, or the
Plaintiffs
argue
that
under
the
case
of
Hastings
________
Associates, Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass. App. Ct.
________________
__________________________
____________________
follows:
upon by all
for
a fixed
to be
agreed
to TRW
expenses
exceeding that
amount
incurred
and
-11-
proceeds
to TRW
162, 675 N.E.2d 403 (1997), the fact that the parties agreed that
NTNY's
be
agreed
upon"
is
enforceable contract.
shows
that it
is
sufficiently
definite
However, an analysis of
easily
distinguished,
and
to
constitute
an
that
the
vague
finding of indefiniteness.
In
lease renewal
payment term
provision was
enforceable
where it
left open
not agree,
then
The appeals court there held that this provision was enforceable,
and not
merely
an "agreement
to
agree" because
the
language
should arise.
indefinite due
Id. at 409-10.
___
to the parties'
the agreement
to be
Id. at 410.
___
misplaced.
While the
contract
in
Hastings
________
provided
for
formula
thing.
to use,
the 1990
Agreement involved
here did
no such
would discuss
a later date.
This
-12-
intent of
the parties,
and thus
is an
unenforceable contract.
244 (1964)
(finding unenforceable
a letter
agreement providing
a proposed building
In light of
an essential
rights
term, and
and duties of
district
court that
gives the
court no
way to enforce
the
1990
Agreement
is
the
an
unenforceable
"agreement to agree."
3.
3.
Plaintiffs
claim that by
held as an
individual as a result
a release of Lett's
This
claims against
release
Lett's
claims
against Defendant
NTNY
(Nations
Title
it was the
claims
against
assertion
NTNY, on the
to
NTNY in
the
this
contrary,
agreement, and
the
name
used
that
in
release her
despite any
the
document
While
that the
the district
court made
an alternative
ruling
-13-
agreement
to
transferred
agree.
1990
only
this
The
Agreement
interest
Lett
claims
she
Because we have
is unenforceable,
Lett
cannot
held that
claim any
4.
4.
must be
made in
inferences that
preclude affirmation
of the
(a)
the 1991
Christopher
NTNY's
Agreement
Likens,
was
and
he
original or
was
copy
by
President
of
the Vice
predecessor, on
1991;
not signed
or
about March
unable
with his
to
21,
produce
an
signature on
it
because
transaction
Property,
she
to convey
trustee in some
acquired
and
intended
only her
in
interest as
mortgages on 32 lots
not
the
personally in
interests
the lots
that
on the
she
had
covered by
(c)
never
Likens
told
signed
Giuliano that
the
destroyed it,
and
1991
never
Likens
Agreement,
considered
had
had
it
an
operative agreement.
still
fail to
raise any
genuine issues
of material
fact that
____________________
While there
ambiguity
of fact as to whether
an
1994 document,
it is not
analysis since
-1414
The first
assertion, that
Likens failed
to sign
the
enforceable, a contract
predecessor, is irrelevant.
Mass.
seeking
207, 213
(1924) (contract
enforcement).
themselves
Plaintiffs
do
it is
need
To be
the signature of
Forman v.
______
not be
not
the
Gadouas, 247
_______
signed by
contest
party
that
they
that Plaintiff
a trustee, creates
Lett signed
1991 Agreement
only as
no genuine
material fact.
the
issue of
by the
1991 Agreement Lett retained the interest in the land she held in
the 1990
Agreement
makes this
claims to hold
point moot.
The
only interest
that Lett
1990 Agreement.
However, because we
have
interest
Therefore, at the
as an individual.
the
capacity
in
which
she
signed
the
1991
Agreement,
and
he never signed
considered it an
-1515
immaterial to our
review.
the
Lett
and Giuliano
required
under
executed or was
transferred deeds
the
otherwise invalid.
contract,
to
NTNY's
NTNY's predecessor
predecessor
conclusion,
issue of
place:
no evidence of
paid
as
the
a genuine
the 1991
court,
Plaintiffs
denying
their motion
complaint as futile.
to
file
their
proposed
particularity requirements
9(b),
their other
amendments
of Fed.
state viable
____________________
"Defendants
with intent
falsely and
to defraud
fraud
R. Civ.
well.5
amended
and that
second
fraudulently,
the Plaintiffs,
P.
claims as
hold
the
develop
subject
it for
property
all parties
in
trust
and
[sic] benefit."
95 (A at
398).
(2)
"The
defendants
falsely
and
the
represented
March 21, 1991
to
the
the
Plaintiffs
Agreement
related
-1616
1.
Standard of Review
1.
Standard of Review
The
to amend
v.
2.
2.
Demars v. General
______
_______
Blyth, Eastman, Dillon & Co., 719 F.2d 1, 4 (1st Cir. 1983).
_____________________________
Under Fed.
R. Civ. P.
fraud, the
reasonable
false or misleading."
____________________
and
further
that
the
Agreement
had
been
destroyed."
Proposed
Complaint,
(3)
Second
Amended
99 (A at 399).
"The
defendants
falsely
represented
and
to defraud the
to
the
Plaintiffs
dollars to
property as collateral
103 (A at 399-400).
"Plaintiffs
obligations
1991
to
paragraphs
but
perform
the
its
Defendants
obligation
a breach
under
108).
constitute a
have
of contract."
their
thereby constituting
(A at 400,
performed
Agreement,
failed
fully
violation of
Consumer Protection
9 and 11
Statute, M.G.L.
Chapter
93A,
9 and
11."
(A at 401,
111).
-1717
F.3d
357, 361
the
(1st
Cir. 1994)
(quoting
alleged
fraudulent
involvement'"
of
Greenstone v.
__________
Cambex
______
the
actors
be
alleged.
Litigation, 11
__________
The amended
the
requirement
allegations of
fraud claim in
of Rule
9(b)
because
in
fraudulent statements by
none of
denial is
or the
details of
additionally warranted in
the
three
Defendants' predecessor
the conversations,
to meet
the locations of
the conversations.
This
that the
specifically
directing Plaintiffs
that the
amended
claim must
3.
3.
We affirm the
this amended
legal claim
for relief.
In
this amended
claim, Plaintiffs
efforts"
in securing
property
and developing
claim alleges no
to use its
the
release
of
the property.
adverse
claims
However, this
"best efforts."
breached
Thus,
-1818
the claim, as
to
the
amended
failed
amended, would
indeed
be futile,
and the
leave
to amend
district court
properly denied
it.
this claim
of their
complaint.
Therefore, we
4.
4.
The district
their
prove that
a demand letter
requirement to bring a
Slaney
______
v.
93A
to this claim
was sent.
9 claim.
leave to
amend
if Plaintiffs could
See G.L.
___
Mass.
ch. 93A
688,
704
is a
9(3);
(1975);
Baldassari
__________
(service
of demand
amended complaint
letter must
fails to allege
all prerequisites to
the
alleged unfair
substantially"
Although
be
a 93A
alleged and
acts
within Massachusetts.
the Proposed
Second
33, 41
Amended
(1975)
proved).
11 claim.
or deceptive
Mass.
The
was sent,
occurred "primarily
See
___
G.L.
ch. 93A
and
11.
Complaint provides
some
these are
alleged
to have
was in
Kansas.
taken
place in
New Jersey,
Thus, this
supplementation
does
or
in
whose office
nothing
to
primarily
and
substantially
outside
Massachusetts.
It
additionally
does
Plaintiffs complain
nothing
to show
that
the
events of
which
substantially within
-1919
Massachusetts.
Therefore, this
CONCLUSION
CONCLUSION
be futile,
For the reasons set forth above, the district court did
not err in
(2)
the 1991
agreement
district court's
was
denial of
a valid
Further,
failed to meet
contract.
amended
the
under 9(b)
The
-2020