Southcoast Redevelopment, LLC v. William R. Murdoch.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-589

SOUTHCOAST REDEVELOPMENT, LLC

vs.

WILLIAM R. MURDOCH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, William R. Murdoch, appeals from summary

judgment ordered by a judge of the Housing Court in favor of the

plaintiff, Southcoast Redevelopment, LLC, granting the plaintiff

possession of the property located at 357 Wareham Street,

Middleboro, Massachusetts (the property) and dismissing the

defendant's two counterclaims seeking to void the plaintiff's

purchase of the property from the Murdoch Family Trust (the

trust). On appeal, the defendant claims that the judge erred in

granting summary judgment because genuine issues of material

fact exist as to the defendant's counterclaims. We affirm.

Discussion. 1. Standard of review. Our review of an

allowance of a motion for summary judgment is de novo. Blake v.
Hometown Am. Communities, Inc., 486 Mass. 268, 272 (2020). We

must view the record evidence, and all reasonable inferences

that can be drawn therefrom, in the light most favorable to the

nonmoving party, here the defendant. Id. Summary judgment is

appropriate only where, viewing the record in that light, there

is no genuine issue of material fact, and the moving party is

entitled to judgment as a matter of law. Mass. R. Civ. P. 56

(c), as amended, 436 Mass. 1404 (2002).

2. Materiality of disputed facts. Preliminarily, we note

that most of the twenty-one "genuine issues of material fact"

asserted in the defendant's brief relate solely to the trustee's

administration of the trust, and are therefore not material to

the disposition of the defendant's counterclaims. Even if the

trustee sold the property in a manner inconsistent with the

terms of the trust, which we do not and need not decide, such a

defect would not disturb the plaintiff's title, so long as the

plaintiff relied in good faith on a trust certificate executed

pursuant to G. L. c. 184, § 35 (section 35).1 Accordingly, those

1 Section 35 provides, in pertinent part, that "a
certificate sworn to or stated to be executed under the
penalties of perjury, and in either case signed by a person who
from the records of the registry of deeds or of the registry
district of the land court . . . appears to be a trustee
thereunder and which certifies as to: (a) the identity of the
trustees or the beneficiaries thereunder; (b) the authority of
the trustees to act with respect to real estate owned by the
trust; or (c) the existence or nonexistence of a fact which

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factual disputes asserted by the defendant that fail to address

the plaintiff's good faith reliance on the trust certificate are

not "material." See Dennis v. Kaskel, 79 Mass. App. Ct. 736,

741 (2011), quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986) ("a fact is 'material' when it 'might affect the

outcome of the suit under the governing law'").

3. The sale price. With respect to the defendant's first

counterclaim, the defendant contends that a genuine issue of

material fact exists as to the plaintiff's good faith reliance

on the trust certificate's statement that the trustee had "full

power and authority . . . to convey the [property]" because the

"enormous discount" at which the property was sold should have

notified the plaintiff that "irregularities" had occurred in the

administration of the trust.

constitutes a condition precedent to acts by the trustees or
which are in any other manner germane to affairs of the trust,
shall be binding on all trustees and the trust estate in favor
of a purchaser or other person relying in good faith on the
certificate." Here, the defendant does not dispute that the
trust certificate furnished by the trustee met the requirements
of section 35; rather, he claims that the plaintiff did not rely
on it in good faith.
The defendant also claims that the plaintiff is not
entitled to the protection of G. L. c. 203E, §§ 1013 (f) and (g)
because the trust certificate did not contain all of the
information required by § 1013 (a). We need not address the
applicability of the Massachusetts Uniform Trust Code, as
section 35 alone is dispositive.

3
Below, the defendant supported his opposition to the

plaintiff's motion for summary judgment with an affidavit and a

property appraisal. The defendant's claim that the property was

sold "substantially below fair market value" is largely based on

the appraisal, which opined that the property was worth between

$475,000 and $485,000, as compared to the sale price of

$250,000. However, the appraisal does not account for the facts

that the property was sold (1) "as-is" with its condition

unknown; and (2) with the defendant as a known occupant.2 The

defendant contends that the judge failed to view the summary

judgment record in the light most favorable to the defendant,

but there is no more favorable inference to be drawn from the

appraisal: it simply fails to address the valuation impact of

the above facts. No reasonable jury could have inferred from

the appraisal that the property was purchased at such a

significant discount to its fair market value as to impute to

the plaintiff a lack of good faith in its reliance on the trust

2 The defendant claims that his potential occupancy of the
property as of the closing date could not have explained the
sale price, as "[t]he price stated in the . . . purchase and
sale agreement was fixed, whether or not [he] vacated the
property prior to closing." This argument is unfounded. In the
absence of supporting evidence, no jury could reasonably
conclude that the risk of the defendant's occupancy could only
be addressed through a variable pricing structure and not
incorporated into a fixed price.

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certificate.3 See Dennis, 79 Mass. App. Ct. at 740-741, quoting

Anderson, 477 U.S. at 248 ("a dispute about a material fact is

'genuine' when 'the evidence is such that a reasonable jury

could return a verdict for the nonmoving party'").

The defendant also claims that a genuine issue of material

fact exists as to the plaintiff's good faith reliance on the

trust certificate because of a statement allegedly made to the

defendant by the principal of Southcoast Redevelopment, LLC.

The defendant's affidavit alleges that a man, while looking

around the property, stated to the defendant, "I did better than

I thought. My lawyers did good. Let me say this, I won and you

lost." The defendant contends that, based on this statement, it

"hardly sound[ed] as though [the man's] state of mind was one of

good faith." However, the question is not whether the

plaintiff's officers generally conducted themselves in an

amicable manner, but rather, whether they relied in good faith

on the trust certificate's statement that the trustee had full

power and authority to convey the property. The alleged

statement relates merely to the condition of the property, which

had previously been unknown to the plaintiff; it does not lend

3 In addition to the appraisal, the defendant points to the
$363,000 mortgage obtained by the plaintiff. We likewise
conclude that no reasonable jury could have inferred from this
fact a lack of good faith in the plaintiff's reliance on the
trust certificate.

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support to the conclusion that the plaintiff was on notice of

some defect in the trustee's authority to transact. Therefore,

it does not establish a genuine issue of material fact as to the

plaintiff's good faith reliance on the trust certificate.4

4. The title search. With respect to the defendant's

second counterclaim, which seeks to negate the plaintiff's good

faith reliance on the trust certificate on the basis of the

plaintiff's alleged failure to perform a "proper and diligent

title search," the defendant claims that a genuine issue of

material fact exists because "there was no indication that title

insurance was issued after a review of the [t]rust and

confirmation that all terms and conditions were met to permit

conveyance." In support of its motion for summary judgment, the

plaintiff offered evidence of a title search that was conducted

4 The defendant also claims that the plaintiff "under [G. L.
c.] 203E (e) could have easily asked . . . the [t]rustee to
furnish copies of the excerpts from the [trust] relevant to the
trust property disposition guidelines, requirements or
parameters." The defendant cites no legal authority for the
proposition that a purchaser's protection under section 35 is
contingent upon their request for the underlying trust
documentation. Rule 16 (a) (9) (A) of the Massachusetts Rules
of Appellate Procedure, as appearing in 481 Mass. 1628 (2019),
requires that an appellant's brief support each contention "with
citations to the authorities . . . on which the appellant
relies." We treat as waived claims not adequately argued in the
appellant's brief. See id. See also Kellogg v. Board of
Registration in Med., 461 Mass. 1001, 1003 (2011) (court had
insufficient basis to consider appellant's claims of error where
appellant failed to provide supporting legal authority).

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in connection with the issuance of a title insurance policy,

prior to the sale of the property. After the plaintiff met its

initial burden under Mass. R. Civ. P. 56 (c), as amended, 436

Mass. 1404 (2002), "the burden shifted to the [defendant] to

show with admissible evidence the existence of a dispute as to

material facts." Godbout v. Cousens, 396 Mass. 254, 261 (1985).

"[T]he opposing party cannot rest on his or her pleadings and

mere assertions of disputed facts to defeat the motion for

summary judgment." LaLonde v. Eissner, 405 Mass. 207, 209

(1989). The defendant's affidavit does not address the

propriety of the aforementioned title search or title insurance

policy. The judge therefore did not err in finding no genuine

issues of material fact in regard to the defendant's second

counterclaim.

5. Summary judgment as to mental state. Finally, the

defendant claims that the judge erred in granting summary

judgment because "the generally accepted rule is that the

'granting of summary judgment in a case where a party's state of

mind . . . constitutes an essential element of the cause of

action is disfavored.'" Pederson v. Time, Inc., 404 Mass. 14,

17 (1989), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393

Mass. 81, 86 (1984). "This is not, however, an absolute rule."

Asian Am. Civic Ass'n v. Chinese Consol. Benevolent Ass'n of New

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England, Inc., 43 Mass. App. Ct. 145, 148 (1997). See Dolan v.

Airpark, Inc., 24 Mass. App. Ct. 714, 717 (1987). To survive

summary judgment on the issue of good faith, "[t]here must be

some indication that [the defendant] can produce the requisite

quantum of evidence to enable [him] to reach the jury with [his]

claim." A. John Cohen Ins. Agency, Inc. v. Middlesex Ins. Co.,

8 Mass. App. Ct. 178, 183 (1979), quoting Hahn v. Sargent, 523

F.2d 461, 468 (1st Cir. 1975), cert. denied, 425 U.S. 904

(1976). As discussed, supra, the defendant failed to produce

such evidence of a lack of good faith.5

Judgment affirmed.

By the Court (Meade,
Desmond & D'Angelo, JJ.6),

Clerk

Entered: March 5, 2025.

5 The defendant also cites Davis v. Comerford, 483 Mass.
164, 179 (2019) in support of his position that a trial on the
merits was required. However, Davis is inapposite, as it
applies specifically to the procedural requirements underlying a
judge's grant of interim use and occupancy payments. See id.

6 The panelists are listed in order of seniority.

8