RIA K. MCNAMARA, INC. v. ANN B. PRATT, Trustee, & 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

23-P-551

RIA K. MCNAMARA, INC.

vs.

ANN B. PRATT, trustee,1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The question in this case is whether the plaintiff, real

estate broker Ria K. McNamara, is entitled to a commission with

respect to a contemplated (and contracted) sale of real estate

that never took place. Under the Supreme Judicial Court's

opinion in Tristram's Landing, Inc. v. Wait, 367 Mass. 622, 629

(1975) (Tristram's Landing), the general rule is that a broker

is not entitled to a commission absent a completed transaction.

Tristram's Landing delineated an exception, however, where the

failure to complete the contracted sale "result[ed] from the

1 Of the Nobscott Realty Trust.

2Northside, LLC and Robert E. Foley; RCS Learning Center,
Inc., and RCS, Behavioral and Educational Consulting, LLC, as
reach and apply defendants.
wrongful act or interference of the seller." Id. The plaintiff

McNamara claimed that the Tristram's Landing exception applied

in this case, but after a jury-waived trial, a judge of the

Superior Court ruled in favor of the defendants, expressly

finding (1) that the buyers were not ready and able to close at

the time specified in the parties' purchase and sale agreement,

and (2) that "no evidence had been presented that [the buyers']

inability to meet the closing date timeline was the result of

[the sellers'] bad faith." Judgment entered dismissing the

complaint, and the plaintiff appealed. We affirm.

Facts. The sellers in this case were the defendants, Ann

B. Pratt, trustee of the Nobscott Realty Trust, and Northside,

LLC. The buyers were the reach and apply defendants, RCS

Learning Center, Inc., and RCS, Behavioral and Educational

Consulting, LLC (collectively RCS). In 2014, RCS retained the

plaintiff to help them find a property for their school. The

plaintiff introduced RCS to Robert E. Foley, the principal of

the sellers, whom the plaintiff knew through another listing of

hers. The sellers owned two properties in Framingham that they

were interested in selling for development (the properties).

RCS decided to buy the properties to construct a school, and in

May 2015, RCS and the sellers signed a purchase and sale

agreement (P&S) for the properties whose key provisions were (1)

a purchase price of $2.5 million, (2) a closing date forty-five

2
days after the date on which all necessary permits were acquired

for construction of the school (and the appeal period had

passed), (3) a financing contingency in the amount of $8

million, and (4) that the plaintiff "shall be paid a fee equal

to five (5%) percent of the Purchase Price pursuant to a

separate agreement at the end of the Closing." That same month,

and again in August 2015, the P&S was amended in ways that are

not material to our conclusion here.

On June 2, 2016, the Framingham planning board approved

RCS's application for site plan review and a public way access

permit. No one challenged that decision before the appeal

period expired on June 22, 2016. Under the P&S, the closing was

required to take place within forty-five days of that date,

which was August 6, 2016. The closing did not take place,

however, and as of August 6, RCS did not have financing in place

for the project. Over the months after August 6, RCS proposed

multiple amendments to the P&S as they tried to negotiate with

the bank for a loan, but none of the proposals were agreed to by

Foley, and in February 2017, the bank denied RCS's application

for financing. RCS started working with a different bank, but

in May 2017 they received notice from Foley that the P&S

"expired and is not enforceable." Foley proposed new contract

terms on behalf of the sellers that RCS found unacceptable;

thereafter, RCS sued the sellers and Foley in the Land Court,

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claiming that the sellers had breached the P&S and seeking

(initially) specific performance thereof (Land Court action).

The plaintiff tried to intervene in the Land Court action,

but her motion was denied. She thereafter filed the instant

complaint in the Superior Court, claiming entitlement to a

commission and alleging breach of contract, fraud, violation of

G. L. c. 93A, and quantum meruit.3 Meanwhile, the Land Court

case went on to trial. In a comprehensive decision, the Land

Court judge ruled against RCS as to its claims under the P&S.

The judge concluded that (1) Foley had breached the P&S as

modified by failing to provide a first mortgage to RCS with

respect to certain advance payments that RCS had made to Foley,

but that (2) RCS waived that breach and continued under the

agreement; and that thereafter (3) "neither party tendered

performance under the agreement as modified so as to put the

other in breach, and that, instead, [(4)] the parties abandoned

their agreement."

Plaintiff McNamara's claims in this case also went to a

trial, in July 2022.4 The Superior Court judge ruled against

McNamara's claim for a commission. He concluded that although

"Foley's conduct throughout the course of his dealings with RCS

3 The complaint also sought a declaration concerning the
rights and responsibilities of the parties.

4 At trial the plaintiff waived her claim for fraud.

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was unconscionable," nevertheless the failure of RCS to close

was not caused by Foley's bad conduct. Rather, "no evidence had

been presented that RCS's inability to meet the closing date

timeline was the result of Foley's bad faith." The judge

dismissed the plaintiff's remaining claims as well, for

substantially the same reasons. This appeal followed.

Discussion. Tristram's Landing, 367 Mass. at 629, held:

"When a broker is engaged by an owner of property to find a
purchaser for it, the broker earns his commission when (a)
he produces a purchaser ready, willing and able to buy on
the terms fixed by the owner, (b) the purchaser enters into
a binding contract with the owner to do so, and (c) the
purchaser completes the transaction by closing the title in
accordance with the provisions of the contract. If the
contract is not consummated because of lack of financial
ability of the buyer to perform or because of any other
default of his . . . there is no right to commission
against the seller. On the other hand, if the failure of
completion of the contract results from the wrongful act or
interference of the seller, the broker's claim is valid and
must be paid." (Citation omitted; emphasis added.)

In short, Tristram's Landing generally requires that the

sale be consummated in order for the broker to be entitled to a

commission, but "[t]he requirement that the sale actually be

consummated . . . is subject to an exception." Hillis v. Lake,

421 Mass. 537, 542 (1995). "In circumstances where 'the failure

of completion of the contract results from the wrongful act or

interference of the seller, the broker's claim is valid and must

be paid.'" Capezzuto v. John Hancock Mut. Life Ins. Co., 394

Mass. 399, 402 (1985), quoting Tristram's Landing, supra at 629.

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To recover under the exception, a broker must show "bad faith

dealing, or some other misconduct which prevents an agreement

between the broker's client and the seller, or which suggests 'a

purpose on the part of the [seller] to obtain without payment a

profit from the [broker's] exertions'" (citations omitted).

Capezzuto, supra at 404.

Here, the plaintiff has pointed to two acts as evidence of

Foley's "bad faith" -- (1) that Foley failed to disclose at the

outset that substantial property taxes were owed on the

properties, and (2) that Foley breached the modified P&S by not

granting RCS a first mortgage on the properties to secure

repayment of money that RCS advanced to Foley. The Land Court

judge made findings on these issues and, in particular, found

that Foley breached the modified P&S. The plaintiff attempts to

fault the Superior Court judge for not considering himself bound

by those findings, but the plaintiff's argument is unavailing,

most importantly because the Land Court judge's findings simply

were not material to the conclusion reached by the judge in this

case. Indeed, the judge "[a]ccept[ed] as true" that Foley

breached the P&S and "was less than transparent" about his

finances, but nevertheless concluded that "Foley's questionable

actions" were "not relevant" because "RCS never purchased the

Propert[ies] and [the plaintiff] has failed to show that

anything Foley did was the cause of [that] inability."

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The judge's finding of lack of causation was not clearly

erroneous, and indeed, was well supported by the record. The

P&S required a closing by August 6, 2016, and nothing Foley did,

or didn't do, affected the obligation to close. As the judge

explained, the closing "never occurred, and the evidence makes

clear that as of February 2017, RCS's financing had been

rejected by [the bank]." New potential financing was

identified, but it required a modification of the P&S, which

"Foley was under no obligation to agree to." It follows that

Foley's failure to agree to yet another modification was not

wrongful and did not thwart the deal. Sparks v. Fidelity Nat'l

Title Ins. Co., 294 F.3d 259, 268 (1st Cir. 2002). See Bonin v.

Chestnut Hill Towers Realty Corp., 392 Mass. 58, 65 (1984) ("It

is well settled that an owner may condition his liability to pay

a broker's commission on his producing a purchaser who meets the

terms he has specified"). Because the failure to close was not

caused by any wrongful act of Foley, the judge correctly

concluded that the Tristram's Landing exception does not apply

and the plaintiff "is not owed a commission." See H1 Lincoln,

Inc. v. South Washington St., LLC, 489 Mass. 1, 13 (2022) (to

find clear error, reviewing court must be "left with the

definite and firm conviction that a mistake has been committed"

[citation omitted]).

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We are not persuaded by the plaintiff's further complaint

that this result is unfair to her. It is well settled that

brokerage contracts "entail a high risk of noncompensation.

. . . It is not at all uncommon for a broker to perform services

for which [s]he is not compensated." Bump v. Robbins, 24 Mass.

App. Ct. 296, 305 (1987). See Sparks, 294 F.3d at 267.

Here the plaintiff agreed to be paid by separate agreement

after the closing, with a "consequence that . . . [she] could

only earn h[er] commission if the three Tristram's conditions

were met." Currier v. Kosinski, 24 Mass. App. Ct. 106, 108

(1987).5

Judgment affirmed.

By the Court (Meade,
Englander & Hodgens, JJ.6),

Clerk

Entered: August 20, 2024.

5 The parties' requests for an award of appellate attorney's
fees are denied.

6 The panelists are listed in order of seniority.

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