KIT NORMAND & Another v. BRENDA S. HARYSLAK.

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-1067

KIT NORMAND & another1

vs.

BRENDA S. HARYSLAK.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The seller, Brenda S. Haryslak, appeals from a judgment

issued by a Superior Court judge granting summary judgment to

the buyers, Kit and Jason Normand, and awarding them the return

of their deposit. Concluding that the buyers invoked their

right to void the contract when the seller did not find suitable

housing by the contract's deadline, and that the judgment

properly included costs and prejudgment interest, we affirm.

1. Standard of review. "[T]he standard of review of a

grant of summary judgment is whether, viewing the evidence in

the light most favorable to the nonmoving party, all material

facts have been established and the moving party is entitled to

1 Jason Normand.
a judgment as a matter of law." Coviello v. Richardson, 76

Mass. App. Ct. 603, 607 (2010), quoting Siebe, Inc. v. Louis M.

Gerson Co., 74 Mass. App. Ct. 544, 548 (2009). "The moving

party bears the burden of demonstrating the absence of a triable

issue of fact on every relevant issue." Scholz v. Delp, 473

Mass. 242, 249 (2015), cert. denied, 578 U.S. 1023 (2016).

"Once the moving party has met this burden, the opposing party

is 'required to respond by "set[ting] forth specific facts

showing that there is a genuine issue for trial."'" Hill-

Junious v. UTP Realty, LLC, 492 Mass. 667, 672 (2023), quoting

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991). "In deciding a motion for summary judgment the court

may consider the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits." Bank of

N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019), quoting

Niles v. Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18

(2017). "Our review of a motion judge's decision on summary

judgment is de novo, because we examine the same record and

decide the same questions of law." Brandt v. Davis, 98 Mass.

App. Ct. 734, 737 (2020), quoting Boston Globe Media Partners,

LLC v. Department of Criminal Justice Info. Servs., 484 Mass.

279, 286 (2020).

2
Where, as here, summary judgment is based on the language

of a contract, we start by interpreting the contract. "The

words of a contract must be considered in the context of the

entire contract." Brigade Leveraged Capital Structures Fund

Ltd. v. PIMCO Income Strategy Fund, 466 Mass. 368, 374 (2013),

quoting General Convention of New Jerusalem in the U.S. of Am.,

Inc. v. MacKenzie, 449 Mass. 832, 835 (2007). "[E]very word is

to be given force so far as practicable," Beninati v. Borghi, 90

Mass. App. Ct. 556, 563 (2016), quoting MacDonald v. Hawker, 11

Mass. App. Ct. 869, 872-873 (1981), to avoid rendering any "part

useless or inexplicable," First Specialty Ins. Corp. v. Pilgrim

Ins. Co., 83 Mass. App. Ct. 812, 819 (2013), quoting Worcester

Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245 (1986). "When

contract language is unambiguous, it must be construed according

to its plain meaning." Balles v. Babcock Power Inc., 476 Mass.

565, 571-572 (2017).

2. Suitable housing contingency. Under the contract, the

sale of the house was "contingent on seller finding suitable

housing on or before December 30, 2021 and closing

simultaneously with this sale on February 2 2022, but if seller

does not find suitable housing 12/30/21 buyer or seller has

option to void contract." The summary judgment record

establishes that there is no genuine issue of material fact

3
regarding whether the buyers properly exercised their right to

void the contract pursuant to this provision.

At no point prior to January 2, 2022, did the seller assert

to the buyers that she had found suitable housing. The seller's

evidence that she met the suitable housing contingency was her

personal affidavit stating, "On December 29th I found a home and

an apartment that either could work for my family." Nothing in

her affidavit suggested that either the house or the apartment

would satisfy the simultaneous closing requirement in the

suitable housing contingency. Moreover, her deposition

testimony clarifies that, by saying that she "found a home and

an apartment," the seller did not mean that she had any

agreement that those options would "clos[e] simultaneously with

[the sale between the buyer and seller] on February 2 2022," or,

for that matter, an agreement of any sort. At her deposition,

the seller said that, as of December 30, 2021, she was going to

move into "the house [she] live[s] in" now. Although she had

made an offer and had "given" money for that home, she "had to

wait on [that seller's] husband to confirm for it to be, like,

legit." The husband did not confirm until the following day.

The deposition testimony, therefore, confirms that she had no

actual agreement by the deadline.

4
In light of the clarification in the deposition, the

affidavit does not create a genuine issue of material fact as to

whether the seller had found a place to live that would close on

February 2, 2022. See Ortiz v. Morris, 97 Mass. App. Ct. 358,

362 (2020), quoting Hanover Ins. Co. v. Leeds, 42 Mass. App. Ct.

54, 58 (1997) ("[a] party cannot create a disputed issue of fact

[simply] by . . . contradicting by affidavit statements

previously made under oath at a deposition"). The buyers,

therefore, had the right to void the contract pursuant to the

plain language in the suitable housing contingency.2 See

Coviello, 76 Mass. App. Ct. at 608, quoting Owen v. Kessler, 56

Mass. App. Ct. 466, 469 (2002) ("parties will be held to the

deadlines they have imposed upon themselves when they agree in

writing that time is to be of the essence"). As a matter of

law, the summary judgment record establishes that the buyers

here exercised their right to void the contract by promptly

notifying the seller.3

2 We note that, contrary to the seller's argument on appeal,
suitable housing contingencies protect buyers' interests as well
as sellers' interests because such contingencies ensure that
buyers are able to move into houses by agreed-upon dates instead
of having to go through the complicated process of evicting
sellers.

3 Because the buyers voided the contract pursuant to the
suitable housing contingency, we need not reach whether the
buyers diligently pursued financing, an admittedly dubious
proposition.

5
3. Covenant of good faith and fair dealing. "The covenant

of good faith and fair dealing . . . provides 'that neither

party shall do anything which will have the effect of destroying

or injuring the right of the other party to receive the fruits

of the contract.'" A.L. Prime Energy Consultant, Inc. v.

Massachusetts Bay Transp. Auth., 479 Mass. 419, 434 (2018),

quoting Weiler v. PortfolioScope, Inc., 469 Mass. 75, 82 (2014).

"The scope of the covenant [of good faith and fair dealing] is

only as broad as the contract that governs the particular

relationship." Ayash v. Dana-Farber Cancer Inst., 443 Mass.

367, 385, cert. denied, Globe Newspaper Co. v. Ayash, 546 U.S.

927 (2005). "[A] breach occurs when one party violates the

reasonable expectations of the other." Robert & Ardis James

Found. v. Meyers, 474 Mass. 181, 188 (2016), quoting Chokel v.

Genzyme Corp., 449 Mass. 272, 276 (2007).

Here, the seller acknowledges that the buyers could put

offers on other houses while under contract with the seller

without breaching the covenant of good faith and fair dealing.

The seller argues, however, that the buyers breached the

covenant of good faith and fair dealing by failing to diligently

pursue a mortgage after they put an offer on another house.4 The

4 The seller further argues that the buyers breached the
covenant of good faith and fair dealing by failing to tell the

6
contract, however, already prohibited the buyers from invoking

the mortgage contingency in the absence of diligent efforts to

obtain a mortgage, and the buyers properly invoked the housing

contingency to terminate the contract, making their diligence in

seeking a mortgage a moot point.

Moreover, the contemporaneous text communications between

the buyers and their realtor in early December show that they

were frustrated with the seller because she had not found

suitable housing, and they were concerned that she would not

find suitable housing by December 30, 2021. Expressing

discontent, one of the buyers commented that, "if [she] didn't

love the house and really want it, [she]'d be done." In short,

the summary judgment record establishes that the buyers' concern

about the housing contingency was the reason why this sale

ultimately failed. See Ayash, 443 Mass. at 385.

4. Costs and prejudgment interest. The seller argues that

she should not have been "penalized" by having to pay statutory

costs and prejudgment interest as part of the judgment.

seller that they expected a gift from a family member to secure
a mortgage. The seller did not raise this argument to the
motion judge, so we do not consider it on appeal. See
Fitzpatrick v. Department of Correction, 102 Mass. App. Ct. 617,
624 n.12 (2023), quoting Century Fire & Marine Ins. Corp. v.
Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2
(1989) ("An issue not raised or argued below may not be argued
for the first time on appeal").

7
Statutory costs and prejudgment interest, however, are not a

penalty here; they are required by law. See G. L. c. 231, § 6C

("In all actions based on contractual obligations, upon a

verdict, finding or order for judgment for pecuniary damages,

interest shall be added by the clerk of the court to the amount

of damages, at the contract rate, if established, or at the rate

of twelve per cent per annum from the date of the breach or

demand"); Mass. R. Civ. P. 54 (d), as appearing in 382 Mass. 821

(1980) ("costs shall be allowed as of course to the prevailing

party"). The judgment properly included statutory costs and

prejudgment interest.5

Judgment affirmed.

By the Court (Ditkoff,
Singh & Hodgens, JJ.6),

Clerk

Entered: September 25, 2024.

5 The buyers' request for double costs on appeal is denied.
"Although the . . . appeal is unsuccessful, it is not
frivolous." Perry v. Zoning Bd. of Appeals of Hull, 100 Mass.
App. Ct. 19, 25 n.10 (2021), quoting Filbey v. Carr, 98 Mass.
App. Ct. 455, 462 n.10 (2020).

6 The panelists are listed in order of seniority.

8