Heather Hill Investments, LLC v. Long Built Homes, Inc.

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

23-P-78

HEATHER HILL INVESTMENTS, LLC

vs.

LONG BUILT HOMES, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant (Long Built) appeals from a separate and

final judgment in favor of the plaintiff (Heather Hill)

declaring that:

(1) the restated purchase and sale agreement (restated
P&S) between the parties dated September 22, 2020,
expired of its own terms;

(2) Long Built forfeited its deposits to Heather Hill;

(3) Long Built possesses no rights whatsoever under the
restated P&S or in Heather Hill's property; and

(4) Long Built is obligated to immediately assign to
Heather Hill all applications, permits, licenses,
consents and permissions, together with all studies,
reports, plans, specifications and other work product
relating to the property[1] as expressly required by
paragraph 18 of the restated P&S;

1 The property is a golf course in Plainville.
and dismissing Long Built's counterclaims. The judgment

resulted from the judge's ruling in favor of Heather Hill on its

motion for partial summary judgment on Count I of the complaint,

which sought a declaratory judgment with respect to the parties'

rights and obligations under the restated P&S. Long Built's

counterclaims also sought a declaration as to the rights and

obligations of the parties under the restated P&S. 2

On appeal, Long Built raises three primary arguments.

First, it argues that the judge's interpretation of the restated

P&S was incorrect as a matter of law. Second, Long Built argues

that material issues of disputed fact precluded summary

judgment. Third, Long Built argues that the judge abused his

discretion in setting a short discovery schedule. We affirm.

Background. In September 2020, the parties signed the

restated P&S. The restated P&S provided for the sale of a

country club to Long Built on certain terms and conditions.

Among other things, the contract anticipated that there would be

three phases to the closing, with payments towards the purchase

price at each phase. An $8 million payment was to be made at

2 Specifically, Long Built's counterclaims asked for a
declaration that (1) Long Built had not breached the restated
P&S; (2) Heather Hill was required to grant Long Built
additional time to obtain the required approvals; and (3)
Heather Hill was bound to convey the premises to Long Built
under the terms of the restated P&S. Long Built makes no
argument on appeal regarding the dismissal of its counterclaims.

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the so-called Phase One closing. Additional conditions and the

timing of the Phase One closing were spelled out in paragraph 7.

Of pertinence to this case, paragraph 7 provided that the Phase

One closing "shall take place on or within thirty (30) days of

the date that all of the terms and conditions of [the restated

P&S] have been performed, fulfilled or otherwise complied with,

including, but not limited to, [Long Built] obtaining all

permits, approvals, licenses, consents and permissions necessary

for construction" of the first phase of the project to be built

on the property, "but in no event later than December 31, 2020"

(Phase One closing date). The Phase One closing date could be

extended once for up to three months provided Long Built paid an

additional deposit of $50,000, but in no event beyond March 31,

2021.

Long Built did not have in hand all necessary approvals and

permits for Phase One by December 31, 2020. As a result, the

Phase One closing date was extended to March 31, 2021, with Long

Built paying the required $50,000. However, when March 31,

2021, arrived, Long Built still did not have the necessary

approvals and permits in hand; Long Built did not have site

approval from the Plainville planning board, it did not have

conservation commission approval, and it did not have an

environmental impact permit from the board of health. It is

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undisputed that Long Built "was not ready and able to close on

or before March 31, 2021," and that the closing did not occur.

Paragraph 18 of the restated P&S bore the heading, "Buyer's

Default; Damages," and provided that if Long Built failed to

perform any of its obligations within thirty days of notice from

Heather Hill, then Heather Hill had the right to terminate the

agreement. In that circumstance, Long Built was required to

"immediately assign and deliver to [Heather Hill] all

applications, permits, licenses, consents and permissions,

together with all studies, reports, plans, specifications and

other work product relating to the [p]roperty and its

development." Paragraph 18 also provided:

"Notwithstanding the foregoing, in the event that [Long
Built] defaults under this [a]greement by failing to close
on a timely basis on the purchase of the Phase One Property
. . . , or otherwise defaults hereunder, then [Long Built]
will also be required to promptly assign, transfer, convey
and deliver to [Heather Hill] . . . any and all work
product relating to engineering services rendered for [Long
Built] . . . including, but not limited to surveys, plans
drawings, studies, reports, specifications, environmental
reports, calculations, other reports, testing data and all
other similarly related materials, and [] any and all
permits, approvals, licenses, consents and permissions
issued to and/or for the benefit of [Long Built] with
respect to the [p]roperty."

Despite demand from Heather Hill, Long Built has not turned over

to Heather Hill the materials identified in paragraph 18.

Discussion. "In reviewing a grant of summary judgment, 'we

assess the record de novo and take the facts, together with all

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reasonable inferences to be drawn from them, in the light most

favorable to the nonmoving party.'" Pugsley v. Police Dep't of

Boston, 472 Mass. 367, 370-371 (2015), quoting Bulwer v. Mount

Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014). "'If a

contract . . . is unambiguous, its interpretation is a question

of law that is appropriate for a judge to decide on summary

judgment. . . . Where, however, the contract . . . has terms

that are ambiguous, uncertain, or equivocal in meaning, the

intent of the parties' may depend on disputed facts requiring a

trial.'" James Family Charitable Found. v. State Street Bank &

Trust Co., 80 Mass. App. Ct. 720, 725 (2011), quoting from Seaco

Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002).

The defendant first argues that no "default" within the

meaning of the restated P&S occurred, and that the restated P&S

merely expired of its own terms when the Phase One closing did

not take place on March 31, 2021. We disagree. Paragraph 18 of

the restated P&S identifies Long Built's failure to timely close

on Phase One as an event of "default," even if it might not

otherwise be one ("in the event that [Long Built] defaults under

this [a]greement by failing to close on a timely basis on the

purchase of the Phase One Property . . . or otherwise defaults

hereunder" [emphasis added]).

Long Built also argues that Heather Hill never gave notice

or an opportunity to cure, and that both were required under

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paragraph 18 before Long Built could be deemed in default. This

argument is not tethered to the language of paragraph 18. It is

true that the first sentence of paragraph 18 requires that

Heather Hill give Long Built notice and an opportunity to cure

before Heather Hill can terminate the agreement. But there is

nothing in the summary judgment record to show that Heather Hill

terminated the agreement. 3 In any event, the first sentence of

the second paragraph of paragraph 18 sets forth an alternative

to termination by introducing its provisions with the phrase

"notwithstanding the foregoing." This alternative provides for

a specific form of default, where Long Built "defaults under

this [a]greement by failing to close on a timely basis on the

purchase of the Phase One [p]roperty." In this alternative

circumstance, there is no requirement that Heather Hill give

Long Built notice and an opportunity to cure. This seems

logical, since Long Built's inability to timely close would

hardly seem -- as a practical matter -- to be something

requiring notice. And, furthermore, a cure provision would

3 It is true that the judge characterized the contract as having
expired of its own terms. The judge appears to have used this
phrase as a form of convenient shorthand, rather than as a term
of art. In any event, "for purposes of our review, we look at a
trial judge's decision to allow a motion for summary judgment,
albeit useful, as a 'nondispositive prelude.'" Harrison v.
Boston Fin. Data Servs., Inc., 37 Mass. App. Ct. 133, 133 n.1
(1994).

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undermine to a large, if not entire, degree the point of a

deadline.

Long Built also argues that it cannot be deemed to have

defaulted because its obligation to purchase the property never

arose. More specifically, Long Built points to paragraph 24 of

the restated P&S, which provides that Long Built's "obligation

to consummate each of the conveyances contemplated hereunder is

expressly subject to satisfactory fulfillment of" a number of

conditions. Long Built contends that Heather Hill did not

satisfy its own pre-closing conditions until after December 31,

2020. Although Long Built claims that this "fact" is

"undisputed," it provides no record citation to support it.

Moreover, even accepting the assertion as true, it has no legal

significance where the Phase One closing date was extended to

March 31, 2021. Secondly, Long Built argues that issuance of

the required permits, buildability of the project, and economic

feasibility were conditions to the obligation to close on a

timely basis. But this reading of paragraph 24 would

essentially render paragraph 16 (which placed on Long Built the

obligation to obtain all necessary approvals and permits),

paragraph 7 (which required that Long Built do so by March 31,

2021), and paragraph 18 (which defines as a default the failure

to timely close on Phase One) superfluous. See Tupper v.

Hancock, 319 Mass. 105, 109 (1946) ("It is a canon of

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construction that every word and phrase of an instrument is if

possible to be given meaning, and none is to be rejected as

surplusage if any other course is rationally possible" [citation

omitted]).

To the extent that Long Built argues that its obligations

under paragraphs 16 and 7 were excused by or rendered impossible

as a result of the COVID-19 pandemic and state of emergency,

neither the summary judgment factual record nor the law supports

that argument. The record does not raise a triable issue of

fact that the pandemic was the cause of any unanticipated delay

after the signing of the restated P&S, let alone that it

rendered Long Built's performance impossible or impracticable as

those concepts have been recently explained in the context of

the COVID-19 pandemic. See Le Fort Enters., Inc. v. Lantern 18,

LLC, 491 Mass. 144, 151-163 (2023).

Long Built also argues that Heather Hill waived any right

to enforce the timetable contained in the restated P&S based on

the parties' course of conduct under the original P&S and

amendments to it. To begin with, Long Built did not timely

raise waiver as an affirmative defense, and it is accordingly

waived. See Sharon v. Newton, 437 Mass. 99, 102 (2002), quoting

Mass. R. Civ. P. 8 (c), 365 Mass. 749 (1974) ("The omission of

an affirmative defense from an answer generally constitutes a

waiver of that defense"). Setting that aside, Long Built

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ignores that the restated P&S "specifically supersede[d] the

Purchase and Sale Agreement by and between [Heather Hill] and

[Long Built] dated September 20, 2016 and relating to the

[p]roperty," and that there was no evidence of a course of

conduct to indicate that Heather Hill intended to, or did, waive

the deadlines contained in the restated P&S.

Long Built argues that the judge improperly disregarded the

affidavit of attorney Castignetti on the ground that the

affidavit contradicted his deposition testimony. See Smaland

Beach Ass'n v. Genova, 461 Mass. 214, 229 n.24 (2006) (party

cannot create issue of fact via affidavit contradicting his

prior deposition testimony); see also Benvenuto v. 204 Hanover,

LLC, 97 Mass. App. Ct. 140, 144 (2020). It also contends that,

to the extent that Castignetti's affidavit was in any way at

odds with his deposition testimony, those statements were of no

importance because the interpretation of the agreement was a

matter of law. We certainly agree with this latter proposition.

The interpretation of a contract constitutes a question of law

for the court; accordingly, a court generally will accord no

deference to a party's interpretation of a contract, but will

focus on the language of the instrument to effectuate its terms.

See Balles v. Babcock Power Inc., 476 Mass. 565, 572-573 (2017).

For this reason, even were Castignetti's affidavit to have been

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considered, it would not have affected the propriety of summary

judgment.

Lastly, Long Built argues that it was an abuse of

discretion to set a short discovery period. "The conduct and

scope of discovery . . . are issues within the sound discretion

of the motion or trial judge." Hanover Ins. Co. v. Sutton, 46

Mass. App. Ct. 153, 159 (1999). "While discovery orders are

reviewable on appeal from entry of a final judgment, we do not

interfere with the judge's exercise of discretion in the absence

of a showing of prejudicial error resulting from an abuse of

discretion" (citation omitted). Id. at 161. Here, setting

aside the question of whether the judge abused his discretion,

Long Built has not shown prejudice. As we have set out above,

the outcome of the summary judgment motion turned on the

language of the restated P&S, not on extrinsic facts.

For these reasons, summary judgment was properly allowed,

and the separate and final judgment is affirmed.

So ordered.

By the Court (Wolohojian,
Desmond & Sacks, JJ. 4),

Clerk

Entered: December 18, 2023.

4 The panelists are listed in order of seniority.

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