WAYNE P. CAPOLUPO v. CAMILLE MIRAGLIOTTA DALY, Personal Representative, & 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-751

WAYNE P. CAPOLUPO

vs.

CAMILLE MIRAGLIOTTA DALY, personal representative,1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Wayne P. Capolupo, sued Camille Miragliotta

Daly and David Sheafer, Jr., personal representatives of the

estate of the decedent, Ronald Michael Peredna, to enforce an

alleged oral contract to purchase real property and other

assets. Daly (defendant) moved for summary judgment. A judge

(motion judge) allowed the motion as to the first two claims of

the complaint but denied it as to the third count. After a six-

day jury trial in Superior Court, the jury found that there was

1 Of the Estate of Ronald Michael Peredna.

2David Sheafer, Jr., personal representative of the Estate
of Ronald Michael Peredna; Perci Almeida and Jose Peixoto,
interveners. Sheafer, Almeida, and Peixoto did not participate
in this appeal.
no agreement between the plaintiff and Peredna and therefore

rejected the plaintiff's contract claim. Both parties appealed.

The plaintiff argues that the trial judge made various errors in

evidentiary rulings and jury instructions requiring that the

judgment be vacated and a retrial ordered. On cross appeal, the

defendant argues that the motion judge erred in denying her

motion for summary judgment as to the plaintiff's third and

final claim. We conclude that the third claim failed as a

matter of law, and that accordingly, the defendant's motion for

directed verdict at trial should have been granted in the

defendant's favor. Accordingly, we affirm the judgment on that

alternative ground.

Background. 1. The alleged agreement. The jury could

have found the following facts. Peredna was the owner and

operator, either directly or indirectly, of Cristy's Beach

Pizza, Inc. (two locations); 11 Broadway Holding, LLC; as well

as real estate in both Salisbury, Massachusetts, and Hampton,

New Hampshire (Peredna's assets).

The plaintiff attested that he is a resident of Salisbury

and has been a principal in many real estate transactions, both

residential and commercial. Through a variety of legal

entities, the plaintiff has substantial commercial real estate

holdings in Salisbury.

2
In the summer of 2018, the plaintiff and Peredna engaged in

negotiations for the sale of Peredna's assets to the plaintiff.

The plaintiff alleged that on September 26, 2018, they entered

into an oral agreement that the plaintiff would purchase the

assets from Peredna for the sum of $2 million. According to the

plaintiff's handwritten notes of the meeting, which he alleged

to have prepared in Peredna's presence, he would purchase four

parcels of land in Salisbury,3 one parcel of land in Hampton,4

and "take over [the] business" on November 1, 2018. Purchasing

the business entailed buying all of the stock in Cristy's Beach

Pizza, Inc., and all of the membership interests of 11 Broadway

Holding, LLC. Cristy's Beach Pizza, Inc., owned one parcel of

real property located at 1 Riverview Terrace, Hampton, New

Hampshire. 11 Broadway Holding, LLC, owned a second parcel of

real property, located at 11 Broadway, Salisbury, Massachusetts.

The plaintiff and Peredna did not discuss a separate price for

the business, for any individual parcel of real estate, or for

the real estate collectively. Despite the plaintiff's

allegation that they reached an agreement, Peredna did not sign

3 The four parcels of land in Salisbury were: 24-26 North
End Boulevard, 5 Broadway, and 11 Broadway.

4 The parcel of land in Hampton was 1 Riverview Terrace.

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the plaintiff's contemporaneous notes or otherwise state in

writing his acceptance of the offer.

Peredna died on October 8, 2018. On December 1, 2018, the

plaintiff, through counsel, sent a demand letter to the

defendant's attorney requesting performance of the alleged

agreement for the purchase and sale of "Peredna's two pizza

businesses, known as 'Christy's Pizza', [sic] the real estate in

Hampton Beach, New Hampshire and Salisbury Beach . . . and

Mr. Peredna's three rental properties (two commercial and one

residential) at Salisbury Beach." On February 18, 2019, an

attorney representing the defendant wrote to the plaintiff and

notified him that the defendant, the personal representative of

Peredna's estate, had investigated the plaintiff's demand, had

determined that it had no merit, and therefore had denied it.

2. Procedural history. The plaintiff filed his amended

complaint on September 25, 2019, alleging three alternative

claims: (1) breach of contract seeking enforcement of the

entire contract; (2) breach of contract seeking enforcement of a

part of the contract at a reduced purchase price; and (3) breach

of contract seeking enforcement of a part of the contract at the

full purchase price. Specifically, in his third claim, the

plaintiff sought enforcement of an agreement to purchase "all of

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the stock in Cristy's Beach Pizza, Inc. and all of the

membership and ownership interests in 11 Broadway Holding, LLC."

On February 1, 2022, the defendant moved for summary

judgment. The defendant argued, among other things, that any

agreement was unenforceable because it did not comply with the

Statute of Frauds, G. L. c. 259, § 1. On September 23, 2022,

the motion judge granted summary judgment on the plaintiff's

first claim, and, with the agreement of the parties, on his

second claim as well. The motion judge denied summary judgment

as to his third and final claim.

The parties tried the final claim to a jury. At the end of

the plaintiff's case-in-chief, the defendant moved for a

directed verdict, arguing, in essence, that the plaintiff had

failed to establish that the agreement complied with the Statute

of Frauds. The trial judge denied the motion, stating the

argument "would have been more of an argument to be made at

summary judgment." On December 12, 2023, the jury found that

the plaintiff and Peredna had not entered into a contract, and

judgment entered in the defendant's favor. The plaintiff timely

appealed and the defendant timely cross-appealed.

Discussion. On appeal, the plaintiff alleges various trial

errors relating to evidentiary rulings and jury instructions.

Because we agree with the defendant's argument on cross appeal

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that the plaintiff's final claim failed as a matter of law,5

however, we need not parse the plaintiff's arguments. See

Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) ("Other

points, relied on by the [plaintiff] but not discussed in this

[decision], have not been overlooked. We find nothing in them

that requires discussion"). Even if the judge erred with regard

to the plaintiff’s evidentiary claims, his ultimate claim at

trial failed as a matter of law independently of such alleged

errors. See David J. Tierney, Jr., Inc. v. T. Wellington

Carpets, Inc., 8 Mass. App. Ct. 237, 242 (1979) (alleged legal

error "immaterial" on appeal where final decision ultimately

correct).

5 The defendant argues on cross appeal that the motion judge
erred in denying her motion for summary judgment on the
plaintiff's third claim. Generally, a denial of summary
judgment after a trial on the merits may not be reviewed on
appeal as "[t]he merits of a claim are better tested on appeal
on the record as it exists after an evidentiary trial than on
the record in existence at the time" of the summary judgment
motion. Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398
Mass. 118, 126 (1986). However, there are exceptions to this
general rule. See Waxman v. Waxman, 84 Mass. App. Ct. 314, 322
n.9 (2013) (contemplating review of denial of summary judgment
on issue of law if subsequent trial excluded issue of law). The
dispositive question here is whether the alleged agreement
between the plaintiff and Peredna was governed by and satisfied
the Statute of Frauds. Arguably, under the circumstances here,
the motion judge's resolution of this issue on summary judgment
might be reviewable on appeal. We need not decide this issue,
however, because we decide that, as a matter of law, the
defendant's motion for a directed verdict should have been
granted.

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1. Standard of review. "When reviewing the denial of a

motion for directed verdict or judgment notwithstanding the

verdict, we apply the same standard as the trial judge."

Parsons v. Ameri, 97 Mass. App. Ct. 96, 105 (2020). We

"construe the evidence in the light most favorable to the

nonmoving party and disregard that favorable to the moving

party." O'Brien v. Pearson, 449 Mass. 377, 383 (2007). "Our

duty in this regard is to evaluate whether 'anywhere in the

evidence, from whatever source derived, any combination of

circumstances could be found from which a reasonable inference

could be made in favor of the [nonmovant].'" Id., quoting

Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 121

(1992).

2. Statute of Frauds. Agreements for the sale of real

property are enforceable only to the extent that they comply

with the Statute of Frauds. See G. L. c. 259, § 1. "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," a contract for the sale

of real property is not enforceable. Id. See Pappas Indus.

Parks, Inc. v. Psarros, 24 Mass. App. Ct. 596, 598 (1987)

(purpose of Statute of Frauds is to "suppress fraud, i.e.,

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cooked up claims of agreement, sometimes fathered by wish,

sometimes imagined in the light of subsequent events, and

sometimes simply conjured up"). Accordingly, the defendant

would have been entitled to judgment as a matter of law if the

agreement did not comport with the Statute of Frauds.

There is no dispute that the alleged agreement between the

plaintiff and Peredna contained an interest in real property.

The question is whether that interest invalidates the entire

agreement, or if the portion of the agreement addressing other

assets may still be enforced. Because "the offer did not

differentiate between the interest in land and the interest in

personal property, the entire agreement [falls] within the

Statute of Frauds." Schwanbeck v. Federal-Mogul Corp., 412

Mass. 703, 709 (1992). A lack of differentiation is established

where the offer price "was indivisible and made no allocation of

value between the interest in land and the personal property."

First Nat'l Bank of Boston v. Fairhaven Amusement Co., 347 Mass.

243, 245 (1964). See Irvine v. Stone, 6 Cush. 508, 512-513

(1850) (when separate parts of contract stand wholly on others,

each "must fall together"). Contrast Van Dusen Aircraft

Supplies of New England, Inc. v. Massachusetts Port Auth., 361

Mass. 131, 138 (1972) (holding contract was divisible where

"[e]ach of the several areas of leased land is separately

8
considered in the wording and structure of the lease" and

monetary amounts for each were "separately and unconditionally

stated, with no discernible relationship or connection").

The plaintiff concedes that the alleged oral agreement that

he sought to enforce did not differentiate between the sum to be

paid for Peredna's real estate holdings and the sum to be paid

for his pizza business. However, in his third claim, the

plaintiff sought to enforce the sale of only Peredna's interests

in Cristy's Beach Pizza, Inc., and 11 Broadway Holding, LLC,6

but for the full $2 million, the allegedly agreed-on price for

all of Peredna's assets, including real property. There is no

evidence, however, that the alleged oral agreement contemplated

any apportionment of the purchase price between the real estate

assets and the business assets.7 Accordingly, the entire alleged

agreement was subject to the Statute of Frauds. See Schwanbeck,

412 Mass. at 709; First Nat'l Bank of Boston, 347 Mass. at 245.

6 We note that each of these two entities also had material
real estate holdings. The Statute of Frauds might apply for
that reason as well, but as discussed infra, we need not decide
that question.

7 While the record from the summary judgment proceedings
included valuation reports for each of Peredna's individual
assets, nothing in that record (or in the evidence offered at
trial) provided an offer price (which we note could have been
different than the corresponding valuation) for each individual
asset, and thus there is no way to apportion the total offer
price between Peredna's assets.

9
The plaintiff argues that he "was entitled to show that the

Defendant will suffer no harm by having Mr. Capolupo purchase

only some of the assets contracted for without a deduction in

the $2,000,000 purchase price." We disagree, however, that this

approach comports with precedent applying the Statute of Frauds

to oral contracts that encompass both real property and other

assets. There is some authority for the proposition that when

one part of an agreement falls under the Statute of Frauds, a

portion that does not fall under the statute may be enforced

where enforcement would not cause an injustice to the defendant.

See Rand v. Mather, 11 Cush. 1, 7 (1853). However, this

reasoning follows only where the "sound" part can be severed

from the "unsound." Id. Here, as explained above, the alleged

agreement would have been governed by the Statute of Frauds

because the offer did not differentiate the price to be paid for

real property and the price to be paid for other assets. See

Schwanbeck, 412 Mass. at 709; First Nat'l Bank of Boston, 347

Mass. at 245. In support of our view, we note that the material

facts of First Nat'l Bank of Boston, supra at 243-244, are

virtually identical to the facts here. In that case, the oral

contract was for "the interest in a ten year lease of real

estate" and for "personal property . . . used in connection with

the operation of a drive-in theatre." Id. at 243. Because the

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contract price "was indivisible and made no allocation of value

between the interest in land and the personal property," the

entire agreement was governed by the Statute of Frauds. Id. at

245. The same is true here. There was no allocation of value

between the pizza business and 11 Broadway Holding, LLC, on the

one hand, and the real estate on the other. Accordingly, the

Statute of Frauds governed all of the assets, including the

interests in the entities the plaintiff sought to apportion in

his third claim. Therefore, the defendant was entitled to

judgment as a matter of law and we affirm on that alternative

ground. See Gabbidon v. King, 414 Mass. 685, 686 (1993) ("It is

well established that, on appeal, [this court] may consider any

ground apparent on the record that supports the result reached

in the lower court").

Judgment affirmed.

By the Court (Englander,
Toone & Wood, JJ.8),

Clerk

Entered: September 26, 2025.

8 The panelists are listed in order of seniority.

11