FRANK HENNESSEY & Another v. REVOLVE REALTY DEVELOPMENT, LLC, & Others.

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-516

FRANK HENNESSEY & another 1

vs.

REVOLVE REALTY DEVELOPMENT, LLC, & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Frank Hennessey and Jessica Hennessey,

brought an action in the Superior Court against the defendants,

Revolve Realty Development, LLC (Revolve), Anthony Yebba, and

Madelon A. Kaster, for breach of contract and violation of G. L.

c. 93A after the defendants failed to return the Hennesseys'

deposit toward the purchase of a home. Revolve counterclaimed

for breach of contract; fraud, deceit, and misrepresentation;

abuse of process; meritless litigation under G. L. c. 231, § 6F;

and declaratory judgment, alleging primarily that the Hennesseys

committed fraud by not timely disclosing that the sale of their

1 Jessica Hennessey.

2 Anthony Yebba and Madelon A. Kaster.
own home was contingent on their buyer securing the necessary

funds by selling his business. Concluding that neither

Revolve's counterclaim nor its proposed amended counterclaim

sufficiently alleged fraud by the Hennesseys, we discern no

error or abuse of discretion in any of the judgments or orders

challenged by the defendants. 3 Accordingly, we affirm.

Background. In 2016, Yebba and Kaster established Revolve

for the purpose of buying and selling residential real estate.

Yebba was a licensed real estate agent and a principal in a real

estate agency. Yebba and Kaster had bought and sold multiple

residential properties for commercial purposes. On June 9,

2016, Yebba and Kaster, acting through Revolve, purchased

property on Martha Jones Road in Westwood (Martha Jones

property), intending to sell it for a profit. On November 8,

2018, the Hennesseys offered to buy the Martha Jones property

contingent on the sale of their own house on Twin Post Road in

Westwood (Twin Post property). Revolve accepted the offer the

3 The amended notice of appeal lists fifteen orders and
judgments entered by several Superior Court judges. However,
the defendants' assertion in their brief that the judge's errors
in ruling on the motion for judgment on the pleadings were
"carried through and permeate every decision and order
thereafter," is so glancingly made as not to rise to the level
of appellate argument. See Mass. R. A. P. 16 (a) (9), as
appearing in 481 Mass. 1628 (2019). Our decision in this appeal
is thus confined to the defendants' challenges to the orders
relating to judgment on the pleadings, summary judgment, and the
motions to amend the counterclaim.

2
next day. On November 18, 2018, the Hennesseys and Revolve

entered into a purchase and sale agreement (Martha Jones P&S

agreement) for the Martha Jones property with a closing date of

January 18, 2019. The Hennesseys paid $66,875 into escrow as a

deposit with Revolve's agent. The parties included a

contingency provision in the Martha Jones P&S agreement's rider,

stating

"[s]hould BUYER not sell the [Twin Post] property . . .
through no fault of BUYER[,] . . . the BUYER may terminate
this agreement by written notice to SELLER, whereupon any
payments made under this agreement shall be forthwith
refunded and all other obligations of the parties hereto
shall cease and this agreement shall be null and void
without recourse to the parties hereto."

On January 3, 2019, the Hennesseys informed Revolve that

the sale of the Twin Post property was itself contingent on the

buyer selling his business in California. On January 17, 2019,

the Twin Post property buyer informed the Hennesseys that he had

failed to sell his business and thus would not complete the

purchase of the Twin Post property. The same day, the

Hennesseys notified Revolve that the sale of the Twin Post

property would not close and, as a result, the agreement to buy

the Martha Jones property was "null and void." The defendants

refused to return the Hennesseys' deposit.

On January 28, 2019, the Hennesseys filed a complaint

against Revolve, alleging breach of contract. On February 13,

2019, Revolve counterclaimed, alleging breach of contract;

3
fraud, deceit, and misrepresentation; abuse of process; and

meritless litigation, and requesting declaratory judgment. On

August 6, 2019, a judge (first judge) partially allowed the

Hennesseys' motion to dismiss, filed pursuant to Mass. R. Civ.

P. 12 (c), 365 Mass. 754 (1974), dismissing all counterclaims

but Revolve's breach of contract counterclaim and request for

declaratory judgment. On August 29, 2019, the Hennessey's filed

an amended complaint, alleging violations of G. L. c. 93A in

addition to their breach of contract claim, and Revolve filed a

renewed counterclaim, alleging breach of contract and seeking

declaratory judgment on the basis of fraudulent inducement. On

February 20, 2020, a different judge (second judge) dismissed

Revolve's renewed counterclaim, concluding that it was based on

the Hennesseys' allegedly fraudulent conduct, which was the

basis for Revolve's February 2019 counterclaim that had already

been dismissed by the first judge in August 2019. In the order

dismissing Revolve's amended counterclaim, the second judge set

a date by which Revolve could seek leave to amend its fraud-

based claims.

On June 16, 2020, Revolve filed a motion to amend, and a

judge (third judge) denied the motion, reasoning that the motion

to amend alleged the same conduct that formed the basis for the

claims that were already dismissed in August 2019, pursuant to

Mass. R. Civ. P. 12 (c). On July 22, 2020, Revolve moved for

4
clarification of the order setting a date by which Revolve could

seek leave to amend its complaint and of another order by the

second judge addressing related procedural issues. On August 3,

2020, the second judge denied the motion, stating that nothing

in either order required clarification.

On November 24, 2020, the third judge allowed the

Hennesseys' motion for summary judgment on their breach of

contract claim. On February 9, 2021, the Hennesseys filed their

second amended complaint, adding Yebba and Kaster as individual

defendants. On July 17, 2023, a fourth judge allowed the

Hennesseys' motion for summary judgment on their c. 93A claim.

On January 3, 2024, judgment entered for the Hennesseys in the

amount of $331,842, representing the amount of the withheld

deposit, attorney's fees, and costs. This appeal followed.

Discussion. 1. Judgment on the pleadings. The defendants

claim error in the order allowing the Hennesseys' motion for

judgment on the pleadings, which dismissed Revolve's fraud-based

counterclaims, contending that the Hennesseys committed a breach

of their duty to disclose the fact that the Twin Post agreement

was contingent on the buyer's sale of his business. 4 "We review

4 The defendants also appear to argue that the Hennesseys
misrepresented that the Twin Post agreement was not contingent
on the buyer's securing a mortgage. However, as Revolve
acknowledged in its proposed amended complaint, the Twin Post
agreement did not include a mortgage contingency.

5
de novo a judge's order allowing a motion for judgment on the

pleadings under Mass. R. Civ. P. 12 (c)" (citation omitted).

UBS Fin. Servs., Inc. v. Aliberti, 483 Mass. 396, 405 (2019).

"We accept the truth of all well-pleaded facts alleged by, and

draw every reasonable inference in favor of, the nonmoving party

to determine whether there are factual allegations plausibly

suggesting (not merely consistent with) an entitlement to

relief" (quotations and citations omitted). Id.

"To show fraud by omission, the plaintiff must allege both

concealment of material information and a duty requiring

disclosure" (quotation and citation omitted). Buffalo-Water 1,

LLC v. Fidelity Real Estate Co., 481 Mass. 13, 25 (2018). A

duty to disclose arises where either (1) a fiduciary

relationship exists between the parties; 5 (2) the speaker knows

facts that are necessary to prevent his partial or ambiguous

statement of the facts from being misleading; or (3) the

undisclosed fact "is basic to, or goes to the essence of, the

transaction." Stolzoff v. Waste Sys. Int'l, Inc., 58 Mass. App.

Ct. 747, 763 (2003).

The defendants first assert that the Hennesseys concealed

material information by making a partial disclosure of the facts

of the Twin Post agreement -- that its closing was imminent and

5 The defendants do not argue that a fiduciary relationship
existed between Revolve and the Hennesseys.

6
was not contingent on the buyer securing a mortgage. They

contend that this partial disclosure created a duty for the

Hennessey's to disclose that the Twin Post agreement was

contingent on the buyer's sale of his business. We disagree.

Revolve accepted the Hennesseys' offer to buy the Martha Jones

property the day after receiving the offer, before receiving any

additional information. The Hennesseys were not obligated to

perform the defendants' due diligence for them, particularly

where Revolve and its principals were experienced residential

real estate buyers and sellers who were aware of the risk

associated with the Martha Jones P&S agreement's contingency.

See Greenery Rehabilitation Group, Inc. v. Antaramian, 36 Mass.

App. Ct. 73, 80 (1994) (Brown, J., concurring). Because the

Hennesseys had no duty to disclose the details of the sale of

their home to the defendants, their omission of this information

at the time of the Martha Jones P&S agreement was not fraud.

See id. at 77-78.

The defendants also argue that the Twin Post agreement's

contingency was "basic" to the Martha Jones P&S agreement and

thus, by not disclosing the contingency, the Hennesseys

committed a breach of their duty to Revolve and deceived it into

entering the Martha Jones P&S agreement. A basic fact is one

that "is assumed by the parties as a basis for the transaction

itself. It is a fact that goes to the basis, or essence, of the

7
transaction, and is an important part of the substance of what

is bargained for or dealt with" (citation omitted). Wolf v.

Prudential-Bache Sec., Inc., 41 Mass. App. Ct. 474, 477 (1996).

Other facts that are persuasive inducements may be material but

do not necessarily go to the essence of a transaction and are

not basic. See id. This duty to disclose has been applied when

"the advantage taken of the plaintiff's ignorance is so shocking

to the ethical sense of the community, and is so extreme and so

unfair, as to amount to a form of swindling, in which the

plaintiff is led by appearances into a bargain that is a trap,

of whose essence and substance he is unaware." Restatement

(Second) of Torts: Liability for Nondisclosure § 551 comment l

(1977). Here, the details of the Twin Post agreement related to

a separate transaction and thus were not basic to the Martha

Jones P&S agreement.

Ultimately, we conclude that Revolve's counterclaim failed

to allege facts plausibly suggesting entitlement to relief on

the fraud-based claims. We therefore discern no error or abuse

of discretion in the judge's order allowing judgment on the

pleadings. 6

6 The defendants also appeal from the entries of summary
judgment in favor of the Hennesseys on their breach of contract
and c. 93A claims. Both throughout this litigation and on
appeal, the defendants' only defense to the Hennesseys' claims
has been that the Hennesseys engaged in fraud by not disclosing

8
2. The proposed amended complaint. The defendants further

argue that Revolve's motion to amend its counterclaim was

improperly denied. We review for an abuse of discretion a

judge's decision to deny a motion to amend. See Matter of E.C.,

479 Mass. 113, 119 (2018). "A judge abuses his or her

discretion in denying a motion to amend where the denial reveals

an error of law." Id. A judge is "not required to grant

motions to amend prior complaints where the proposed amendment

. . . is futile" (quotation and citation omitted). Johnston v.

Box, 453 Mass. 569, 583 (2009).

Here, the second judge determined that Revolve's proposed

amended counterclaim alleged no new facts beyond those relating

to the Hennesseys' failure to disclose the contingency on the

sale of their home. See Mancuso v. Kinchla, 60 Mass. App. Ct.

558, 572 (2004) (judge properly denied motion to amend where

proposed amended complaint set forth substantially identical

allegations to prior dismissed complaint). We agree. Because,

as discussed, the original counterclaim did not plausibly

suggest that the Hennesseys misrepresented the nature of the

the Twin Post agreement's contingency. Where the Hennesseys had
no duty to disclose the contingency, we conclude that the judges
properly granted summary judgment in favor of the Hennesseys.

9
Twin Post agreement, the proposed amendment was futile. See

Johnston, 453 Mass. at 583. 7

3. Attorney's fees and costs. The Hennesseys have

requested and are entitled to an award of appellate attorney's

fees. 8 See G. L. c. 93A, § 11. Within fourteen days of the

issuance of this decision, the plaintiffs may file a submission

detailing and supporting the amount of their attorney's fees and

costs incurred on appeal. See Fabre v. Walton, 441 Mass. 9, 10-

7The defendants also contend that the third judge erred by
denying Revolve's motion to amend its complaint because the
second judge previously set a date by which Revolve could seek
leave to amend its complaint. We need not reach this issue
because the third judge was not required to allow a futile
amendment to the prior complaint. See Johnston, 453 Mass. at
583.

8We deny the Hennesseys' request that appellate attorney's
fees and double costs be awarded on the separate basis that the
defendants' appeal is frivolous. See Mass. R. A. P. 25, as
appearing in 481 Mass. 1654 (2019). The defendants' request for
fees is denied.

10
11 (2004). The defendants shall have fourteen days thereafter

within which to respond, should they choose to do so.

Judgments and orders
affirmed.

By the Court (Blake, C.J.,
Ditkoff & Brennan, JJ. 9),

Clerk

Entered: August 13, 2025.

9 The panelists are listed in order of seniority.

11