65 Middle Street, LLC v. Robert S. Alexander.

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-323
24-P-534

65 MIDDLE STREET, LLC

vs.

ROBERT S. ALEXANDER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In these related appeals, the defendant, Robert S.

Alexander (seller), appeals from (1) the entry of summary

judgment in the Superior Court in favor of the plaintiff, 65

Middle Street, LLC (buyer), including an order of specific

performance, and (2) orders of a single justice of this court

denying his motion to stay the judgment pending appeal and his

subsequent motion to reconsider. The seller argues that genuine

disputes of material fact should have precluded the allowance of

summary judgment, specific performance was an inequitable remedy

in the context of the present case, and the single justice erred

in denying the motion to stay. We affirm.
Background. We view the facts of record in the light most

favorable to the nonmoving party (here, the seller), as required

by the summary judgment standard. See Sea Breeze Estates, LLC

v. Jarema, 94 Mass. App. Ct. 210, 215 (2018). Here, the

material facts are not in dispute for purposes of our analysis.1

Sometime after June of 2020, David Pogorelc, the sole

manager of the buyer, expressed interest in purchasing property

located at 65 Middle Street in South Boston (property) owned by

the seller. Following various communications and negotiations,

a real estate broker prepared an "offer to purchase real estate"

using the Greater Boston Real Estate Board form (offer to

purchase), which contained a purchase price of $900,000. On

September 4, 2020, the real estate broker contacted the seller's

representative to see if the offer to purchase was acceptable.

The seller's representative responded that the seller was

"insisting that $975,000.00 was the lowest offer he would take."

Following further negotiations, the real estate broker spoke to

1 In support of its motion for summary judgment, the buyer
filed a statement of material facts. As detailed below, the
seller failed to respond to the statement of material facts in
the manner required by Rule 9A (b) (5) of the Rules of the
Superior Court (2023), and despite the opportunity provided by a
Superior Court judge to comply with the rule, declined to do so.
Thus, the motion judge was entitled to deem the buyer's
statement of material facts admitted and undisputed for purposes
of summary judgment. See Rule 9A (b) (5) (iii) (A) of the Rules
of the Superior Court (2023). See also Dziamba v. Warner &
Stackpole LLP, 56 Mass. App. Ct. 397, 399-401 (2002).

2
the seller's representative "who orally accepted his offered

sale price of $950,000.00. [The real estate broker] then texted

Mr. Pogorelc that they had a verbal agreement at $950,000.00."

The real estate broker revised the offer to purchase "to reflect

the increased sale price of $950,000." The offer to purchase

"sets forth all of the material terms of the contract,

including, without limitation, the purchase price, deposit

amount, conditions of sale, and closing date."2 It also states,

in part, "[t]his is a legal document that creates binding

obligations." On September 9, 2020, the seller electronically

signed the offer to purchase.3 After receipt of the "fully

executed" offer to purchase, the buyer forwarded a $1,000

deposit to the buyer's escrow agent, as required by the offer to

purchase.

The offer to purchase noted that the parties were to

execute a standard purchase and sale agreement on or before

September 18, 2020. The seller subsequently refused to execute

2 Of course, this is a legal conclusion that we would review
de novo, but, as described infra, the seller did not contest it
below.

3 The seller executed the offer to purchase via "DocuSign,"
which, along with a "DocuSign Certificate of Completion," was
included as an exhibit in the summary judgment record.

3
a purchase and sale agreement,4 but did offer to "simply execute

and deliver the necessary deeds to transfer the [p]roperty to

[the] [b]uyer." On October 2, 2020, seller's counsel forwarded

proposed deeds to buyer's counsel to complete the sale. Despite

the seller not executing the purchase and sale agreement, the

parties agreed to extend the closing date several times. The

seller, however, did not deliver the deeds and refused to

complete the sale of the property. Consequently, on October 30,

2020, the buyer filed a complaint5 in the Superior Court for

breach of contract, alleging that it was entitled to damages and

specific performance of the agreement to sell the property.6

4 Although no purchase and sale agreement was executed, the
buyer tendered the second deposit in the amount of $25,000 to
the buyer's escrow agent, as required by the offer to purchase.

5 The seller failed to file an answer to the complaint and a
default order issued on July 28, 2022. On September 14, 2022, a
judge denied the seller's motion to remove the default because
the seller failed to establish good cause. On November 9, 2022,
however, after a hearing, the judge allowed the seller's motion
to reconsider her denial of the motion to remove the default.

6 Although the seller refused to respond to the buyer's
statement of material facts, the judge noted in her
comprehensive memorandum and order on the buyer's summary
judgment motion that the seller claimed that he had planned to
sell the property through a trust instrument, which was expected
to reduce his tax liability. The judge further noted that the
seller claimed that after the "trust deal" fell through, the
entire "deal was off." Despite these claims by the seller, we
note that the offer to purchase did not reflect any contingency
regarding the formation of a trust for the purpose of
structuring the deal, or for any other purpose, and did not
contain any other conditions or contingencies relevant to the
issues on summary judgment. Indeed, the seller offered no

4
On April 28, 2023, the buyer served its summary judgment

package on the seller. Rather than respond to the buyer's

statement of material facts as required by Rule 9A (b) (5) of

the Rules of the Superior Court (2023) (rule 9A (b) (5)),

seller's counsel wrote "I still intend to respond to none of

your statements of fact. I'll re-read them, but I do not see

any I or [seller] knew enough about to refute." The seller also

filed a memorandum that likewise failed to comply with

rule 9A (b) (5). On June 14, 2023, the buyer filed the summary

judgment motion and package in the Superior Court pursuant to

Mass. R. Civ. P. 56, 365 Mass. 824 (1974). On June 16, 2023, a

Superior Court judge issued a procedural order in which he found

that the seller "failed to refute the movant's proposed

assertions of undisputed material fact in the manner required by

[rule 9A (b) (5) (iii) (A)]," and filed a memorandum that

"grossly exceeds the page limit prescribed" by Superior Court

rules. "In an over-abundance of consideration," the judge

afforded the seller fourteen additional days to file proper

responsive pleadings and comply with rule 9A (b) (5) and warned

that should the seller "not avail himself of the dispensations

evidence in the summary judgment record, besides his own self-
serving statements, that the sale of the property was
conditioned on the use of a trust to minimize the seller's
capital gains.

5
afforded him . . . the Court intends to treat the [buyer's] Rule

56 motion as unopposed." Rather than comply with the procedural

order, the seller missed the two-week deadline and, on July 6,

2023, filed a motion for the court to withdraw the procedural

order. The judge, noting that the seller's motion was "without

merit" and "rife with sarcasm and invective," denied the motion.

The judge further found that although two judges had extended to

the seller "every fair opportunity to oppose summary judgment in

the manner required by the rules of this Court," the seller

"continues without reason or excuse to squander such

accommodations."

On November 15, 2023, a different Superior Court judge

allowed the buyer's summary judgment motion and ordered the

seller to deliver a deed to the buyer within forty-five days of

the date of its order. In her memorandum of decision, the judge

noted the seller's failure to comply with rule 9A (b) (5), and

that she was permitted to deem the buyer's statement of material

facts "admitted" for purposes of summary judgment. Summary

judgment entered on November 15, 2023. On November 29, 2023,

the seller filed a notice of appeal and an emergency motion to

stay pending appeal. The motion to stay was denied in the

Superior Court on November 28, 2023. On December 18, 2023, the

seller filed another motion to stay in the single justice

session of this court under Mass. R. A. P. 6 (a), as appearing

6
in 481 Mass. 1608 (2019). The single justice denied that motion

as well as an emergency motion to reconsider that denial. On

March 15, 2024, final judgment entered on the Superior Court

docket. The seller now appeals from the allowance of the

buyer's summary judgment motion and from the single justice's

orders denying his motion to stay.

Discussion. We review a grant of summary judgment de novo

to determine 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 judgment as a

matter of law" (citation omitted). Casseus v. Eastern Bus Co.,

478 Mass. 786, 792 (2018). "The moving party bears the burden

of affirmatively demonstrating the absence of a triable issue."

Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6

(2008). If the moving party carries its burden, "the party

opposing the motion must respond and allege specific facts

establishing the existence of a genuine issue of material fact."

French King Realty Inc. v. Interstate Fire & Cas. Co., 79 Mass.

App. Ct. 653, 659-660 (2011).

As an initial point, the buyer argues that the notice of

appeal was untimely as it was filed prior to the entry of final

judgment. We agree that the notice of appeal was filed

prematurely, and on this ground alone the seller's appeal fails.

See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("A

7
timely notice of appeal is a jurisdictional prerequisite to our

authority to consider any matter on appeal"). See also ZVI

Const. Co., LLC v. Levy, 90 Mass. App. Ct. 412, 418 (2016);

Mass. R. A. P. 4 (a), as appearing in 481 Mass. 1606 (2019).

Although we have exercised our discretion on some occasions to

consider a premature appeal where issues are important and fully

developed, see, e.g., Creatini v. McHugh, 99 Mass. App. Ct. 126,

128 (2021), this is not such a case. To the contrary, the

record before the Superior Court was neither fully developed nor

intelligible in many respects. As the single justice noted in

his denial of the seller's request for a stay, discussed, infra,

the record was at times "prolix and difficult to decipher."

Furthermore, the seller's defense in the Superior Court

hinged on the claim that the sale of the property was contingent

on his ability to conduct the sale through some sort of trust

vehicle in order to avoid tax consequences. His arguments on

appeal now center on claims that the offer to purchase omitted

material terms -- e.g., the identity of the buyer -- and that

the offer to purchase was signed a day after the offer expired.

These claims were not sufficiently or properly raised in the

Superior Court and were not before the judge deciding the motion

for summary judgment. As such, they are waived. See Carey v.

New England Organ Bank, 446 Mass. 270, 285 (2006) ("[a]n issue

8
not raised or argued below may not be argued for the first time

on appeal").7

In any event, focusing on the claims that were raised in

the Superior Court, we first note the absence of material facts

in dispute. As noted supra, the seller, through counsel, failed

to respond to the buyer's statement of material facts as

required by rule 9A (b) (5). Even after the issuance of the

procedural order by a Superior Court judge, informing the seller

of his obligation to comply with the rule and providing

additional time to do so, the seller declined the offer. Thus,

the judge deciding the motion for summary judgment was warranted

in treating the buyer's statement of material facts as admitted

and undisputed. See Nickerson v. Flynn-Morris, 103 Mass. App.

Ct. 703, 708 (2024) ("compliance with rule 9A is not a mere

formality; rather, as stated in rule 9A (b) (5) (vii), judges

'need not consider any motion or opposition that fails to comply

with the requirements of this Rule'").

The seller did not dispute below that the standard form

offer to purchase executed by the parties in the present case

contained all material terms. The offer to purchase further

stated that it was a "legal document that creates binding

7 We note that there is a measure of persuasiveness to the
claims now raised for the first time on appeal. We do not
speculate as to why they were not raised in the first instance
in the Superior Court.

9
obligations." In addition, the offer to purchase contained no

contingencies of any kind, much less the contingency now

proffered by the seller to the effect that the agreement was

contingent on selling the property through a trust vehicle.

Under these circumstances, we agree that the offer to purchase

was properly held to constitute a binding agreement. See

McCarthy v. Tobin, 429 Mass. 84, 87-89 (1999) (offer to purchase

real estate describing property and price, stating that it

creates binding obligations, and providing that buyer "offer[s]"

and seller "accept[s]," reflected parties' intention to be bound

by document and execution of purchase and sale agreement was

mere formality).8

We also discern no abuse of discretion in the judge's

determination that the buyer was entitled to specific

performance. See McCarthy, 429 Mass. at 89 ("judge generally

has considerable discretion with respect to granting specific

performance"). "It is well-settled law in this Commonwealth

8 Had the parties intended not to be bound by the offer to
purchase until the execution of a more formal document, they
could have used language suggested by this court and the Supreme
Judicial Court to reflect that intent. See Goren v. Royal Invs.
Inc., 25 Mass. App. Ct. 137, 143 (1987) ("The purpose of this
document is to memorialize certain business points. The parties
mutually acknowledge that their agreement is qualified and that
they, therefore, contemplate the drafting and execution of a
more detailed agreement. They intend to be bound only by the
execution of such an agreement and not by this preliminary
document"). See also McCarthy, 429 Mass. at 88 n.3.

10
that real property is unique and that money damages will often

be inadequate to redress a deprivation of an interest in land."

Greenfield Country Estates Tenants Ass'n, Inc. v. Deep, 423

Mass. 81, 88 (1996). Here, the judge considered the parties'

arguments, considered alternative remedies at law, and balanced

the equities at issue. On the record before us we cannot say

that in ordering specific performance the judge made a clear

error of judgment in weighing these factors such that her

decision fell outside the range of reasonable alternatives. See

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).9 To the

contrary, the record supports her decision. See Pierce v.

Clark, 66 Mass. App. Ct. 912, 914 (2006) (recognizing that

specific performance "is usually granted with respect to

contracts to convey land" [citation omitted]).

Finally, we have little difficulty affirming the single

justice's denials of the motion to stay pending appeal and the

motion to reconsider. In his detailed orders, the single

9 The judge's review of the issues on summary judgment was
somewhat hampered -- as is ours -- by the seller's filings in
the Superior Court, many of which are confusing, unclear, or
drafted without regard to the Rules of the Superior Court and
the Massachusetts Rules of Civil Procedure. As the single
justice stated in denying the seller's motion to stay, "[i]t is
quite plain that through a herculean effort the judge patiently
and thoroughly distilled the undisputed facts from materials
that were, as she aptly described, 'prolix and difficult to
decipher.'"

11
justice provided a thorough and clear articulation of the

reasons for his determinations. We see no abuse of discretion,

nor could we, in view of our conclusions that the judge did not

err in allowing the buyer's motion for summary judgment and did

not abuse her discretion in ordering specific performance.10,11

See C.E. v. J.E., 472 Mass. 1016, 1017 (2015) (party seeking

stay under Mass. R. A. P. 6 [a] must show likelihood of success

on merits).

Judgment affirmed.

Orders of the single justice
affirmed.

By the Court (Rubin, Neyman &
Tan, JJ.12),

Clerk

Entered: July 18, 2025.

10Other points, relied on by the parties but not discussed
in this decision, have not been overlooked. We find nothing in
them that requires further discussion. See Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).

11 The seller's request for appellate fees is denied.

12 The panelists are listed in order of seniority.

12