KEVIN CONCANNON & Another v. DOROTHY SMITH & Another.

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-17

KEVIN CONCANNON & another1

vs.

DOROTHY SMITH2 & another.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs brought this action seeking equitable relief

and monetary damages arising out of the breach by Dorothy and

Edward Smith4 of a purchase and sales agreement for a property in

Hull (agreement). Following a jury-waived trial, a Superior

Court judge entered a judgment awarding the plaintiffs specific

performance of the agreement, and the defendants appealed. We

affirm.

1 Laura Sorgi.

2Individually and as personal representative of the estate
of Edward Smith.

3 Robert Machinski.

4For the sake of clarity, we refer to the Smiths by their
first names where necessary. Edward died during the pendency of
this action.
Background. "We recite the facts that the judge could have

found, . . . reserving some for later discussion." Spinosa v.

Tufts, 98 Mass. App. Ct. 1, 3 (2020). Dorothy and Edward

married in 1980. Before they were married, Dorothy had

purchased a home at 51 Randolph Street in Abington (Randolph

Street property) and lived there with her four children from a

prior marriage, one of whom is defendant Robert Machinski. In

1984, the Smiths purchased a home together at 23 Meade Avenue in

Hull (Meade Avenue property). The Smiths kept the Randolph

Street property until the late 2010s, but began using the Meade

Avenue property as their primary residence shortly after they

purchased it. Machinski lived with the Smiths at the Meade

Avenue property from 1984 (the year after he graduated from high

school) until 1992, when he moved out of state.

While living at the Meade Avenue property, the Smiths

became friendly with their neighbor, Eugene Allen, and Allen's

wife, Frances. The Allens lived next door to the Smiths in a

single-family home at 52 Valley Beach Avenue (the property).

After Frances passed away in 1997, the Smiths provided company

and assistance to Allen, who was then in his nineties and did

not have any family close by. Among other things, the Smiths

helped Allen write checks to pay his bills, made him meals, took

him to the grocery store and medical appointments, and cared for

him when he was ill.

2
In July 1999, Allen conveyed the three parcels that

comprise the property to Machinski via two deeds in

consideration of $1. Although Machinski was by then living in

California, the deeds identified the Smiths' Meade Avenue

property as Machinski's address. One deed, in which Allen

reserved a life estate, was for the parcel known as the Lois E.

James parcel (James parcel), which is the portion of the

property that is next door to the Meade Avenue property and

contains a single-family home. The second deed was for the

parcels known as parcel P and parcel G. Parcel P is a small

triangular parcel that abuts Valley Beach Road and is contiguous

with the James parcel. Parcel G is a waterfront parcel

consisting entirely of rocks that slope down into the ocean and

located directly across the street from the other two parcels.

At the end of his life, Allen was in a nursing home, where

the Smiths visited him regularly. When Allen passed away in

November 2002, Edward took care of the funeral arrangements.

Allen's death certificate identified Edward as Allen's

"guardian."

Following Allen's death, Machinski deeded parcels G and P

to the Smiths. Though the James parcel was not deeded to the

Smiths, they began to use the single-family home on the James

parcel as a rental around the same time. The Smiths found and

selected tenants, collected all rental income, performed

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necessary repairs and maintenance, and paid taxes on the

property. In 2012, the Smiths took out a $380,620 mortgage

secured by the property. In the mortgage application, Edward

stated that he had acquired the property in 1990 for $300,000,

and that he was seeking to refinance an existing $377,208.81

lien. The Smiths never discussed the way they managed the

property with Machinski or told him about their decision to

mortgage it.

In April 2020, the Smiths hired a real estate broker to

market the property, representing that they owned and had

authority to sell all three parcels. Together with their

broker, the Smiths, who had enjoyed long careers as real estate

appraisers,5 agreed to list the property for $650,000. On June

26, 2020, the Smiths and the plaintiffs executed the purchase

and sales agreement, agreeing to a sales price of $620,000 and a

closing date of July 24, 2020. The agreement described the

property as "the land and building(s) thereon known and numbered

as 52 Valley Beach Avenue, Hull, MA," and required the Smiths to

"use reasonable efforts (not to exceed $2,500 exclusive of

voluntary liens and mortgages) to remove any defect in title."

Edward worked in the business of real estate investments
5

and appraisals for over twenty-five years, buying and selling
real estate in Alabama, Florida, New Hampshire, and
Massachusetts before retiring in the early to mid-2010s.
Dorothy had also been a real estate appraiser at one time but
retired before Edward.

4
In an "escape clause," the agreement further provided that if

the Smiths failed to timely

"remove any defects in title, deliver possession, or make
the premises conform, as the case may be, all as herein
agreed, . . . then, any payments made under [the] agreement
shall be forthwith refunded and all other obligations of
all parties hereto shall cease and [the] agreement shall be
void without recourse to the parties hereto."

During the title review process, it came to light that

title to the James parcel was in Machinski's name. Edward

explained to his broker that he and Dorothy had "inherited" the

property from Allen but asked Allen to put the deeds in

Machinski's name for "tax purposes." Edward similarly told

plaintiff Kevin Concannon that he "ha[d] all the paperwork

saying [he's] the owner" of the property and was in the process

of trying to find it. In order to resolve the title issue, the

closing date was repeatedly postponed, eventually until

September 23, 2020.

Machinski learned of the title issue in late August 2020,

and was purportedly "shocked" when he found out that the Smiths

were "going to let [the property] go" for $620,000. Machinski

informed the plaintiffs' attorney that he would only convey the

James parcel if the sales price of the property was increased to

$1.1 million. Shortly thereafter, Machinski moved from

California into the house on the James parcel and began making

improvements to it.

5
On September 23, 2020, the plaintiffs appeared at the

closing, ready to pay the agreed-on purchase price. The Smiths

did not attend.

The plaintiffs subsequently filed this action against the

defendants, alleging that Machinski was a straw and agent of the

Smiths, and therefore, the Smiths were required to direct

Machinski to convey the James parcel back to them and he was

required to do so, so that the sale could be completed. The

plaintiffs sought specific performance and asserted claims for

breach of the implied covenant of good faith and fair dealing,

fraud, constructive trust, resulting trust, intentional

misrepresentation, negligent misrepresentation, and breach of

contract.

In January 2023, a jury-waived trial was held pursuant to

Rule 20 of the Rules of the Superior Court (2018) (rule 20).

Over two days, the judge heard testimony from Dorothy,

Machinski, Concannon, the Smiths' broker, and the Smiths' former

real estate attorney. Although Edward had passed away in

December 2021, his deposition transcript was admitted as an

exhibit.6

Following the presentation of evidence, the judge answered

special questions and entered judgment in the plaintiffs' favor

6 Dorothy's and Machinski's deposition transcripts were also
admitted in evidence.

6
on their claims for specific performance, breach of the implied

covenant of good faith and fair dealing, constructive trust, and

breach of contract. The plaintiffs' remaining claims were

dismissed. The judge found, among other things, that Allen had

conveyed the James parcel to Machinski as an agent for the

Smiths and that it was necessary to impose a constructive trust

to avoid the unjust enrichment of Machinski. The judge ordered

Machinski to convey the disputed parcel to Dorothy and Dorothy

to convey it to the plaintiffs.

Discussion. 1. Standard of review. "The standard of

review relating to a jury-waived proceeding is well established

-- '[t]he findings of fact of the judge are accepted unless they

are clearly erroneous' and '[w]e review the judge's legal

conclusions de novo.'" Cavadi v. DeYeso, 458 Mass. 615, 624

(2011), quoting T.W. Nickerson, Inc. v. Fleet Nat'l Bank, 456

Mass. 562, 569 (2010). Where, as here, the parties not only

waived their right to a jury trial but, pursuant to rule 20,

"any arguments that required or depended on detailed factual

findings . . ., appellate review is conducted according to the

same standard as that applied to a judgment entered following a

jury verdict." K & K Dev., Inc. v. Andrews, 103 Mass. App. Ct.

338, 344 (2023). "We therefore review to determine whether

anywhere in the evidence, from whatever source derived, any

combination of circumstances could be found from which a

7
reasonable inference could be drawn in favor of the [prevailing

party]" (quotations and citation omitted). Id.

2. Agency. The defendants challenge the judge's

conclusion that Machinski held title to the James parcel as the

Smiths' agent, asserting, among other things, that the

plaintiffs failed to proffer any evidence of agency. This

argument is unpersuasive. As will be explained below, the

circumstances surrounding the July 1999 conveyance of the

property, and the defendants' conduct over the years that

followed, strongly support the judge's conclusion that Machinski

held title for the Smiths' benefit and subject to their control.

See Brown-Forman Corp. v. Alcoholic Beverages Control Comm'n, 65

Mass. App. Ct. 498, 506 (2006) ("An agency relationship is

created when there is mutual consent, express or implied, that

the agent is to act on behalf and for the benefit of the

principal, and subject to the principal's control" [citation

omitted]).

a. Circumstances of the conveyance. Machinski's testimony

regarding the circumstances of the July 1999 conveyance was

vague and contradictory. During his deposition, when asked

about the conversations he had with Allen about deeding him the

property, Machinski responded that he did not recall much other

than that Allen's "health was ailing, and he wanted to deed the

property to me." Later at trial, he claimed Allen deeded him

8
the property out of gratitude, asking him to "look out for the

property and use it with the family." However, at the time of

the conveyance, Machinski had been living out of state for

approximately seven years, and by his own admission, saw Allen

infrequently.7 The Smiths, in contrast, continued to live next

door to Allen and were actively involved in his care to the

point that Allen's death certificate listed Edward as his

"guardian." Notably, the 1999 deeds even identify the grantee's

address as the Smiths' Meade Avenue property rather than

Machinski's California residence.

b. Financial considerations. At the time of the

conveyance, Dorothy was in the middle of Chapter 13 bankruptcy

proceedings, providing an incentive to avoid taking title in her

own name so the property would not become part of the bankruptcy

estate. See Harris v. Viegelahn, 575 U.S. 510, 514 (2015)

(under Chapter 13, "[the] estate from which creditors may be

paid includes both the debtor's property at the time of [the

debtor's] bankruptcy petition, and any wages and property

acquired after filing"). See also 11 U.S.C. § 1306(a)(1). The

broker testified that Edward too wanted to avoid putting the

7 Despite his deposition testimony that he saw Allen
infrequently after moving out of state, Machinski submitted an
affidavit in connection with an earlier motion to dismiss
asserting that he was Allen's "surrogate caretaker" after the
death of Allen's wife in 1997.

9
property in his name, for unspecified "tax purposes." These

considerations align with the Smiths' prior conduct with respect

to other properties.

In the early 1990s, before filing multiple bankruptcy

petitions, the Smiths transferred the Meade Avenue and Randolph

Street properties to realty trusts in which Machinski and

Dorothy's other children served as trustees.8 Although the legal

ownership of those properties changed, the Smiths continued to

use the Meade Avenue property as their home address, and the

Randolph Street property appears to have been treated as part of

their bankruptcy estates,9 indicating that the transfer of legal

title alone did not obscure the Smiths' financial interest and

control.

The Smiths' pattern of retaining control of property while

transferring legal title bolsters the inference that they used

Machinski as a nominal title holder to protect the property at a

time of increased financial vulnerability. This inference is

reinforced by the evidence that parcels P and G, along with the

8 Machinski testified that he had did not "have any
recollection" of being a trustee of the realty trusts or ever
having seen the deeds transferring those properties back to the
Smiths.

9 Edward and Dorothy jointly filed a Chapter 7 bankruptcy
petition in 1992 and filed separate Chapter 13 bankruptcy
petitions in 1995 and 1997. The dockets of the Chapter 13
proceedings reflect efforts by creditors to collect on claims
secured by the Randolph Street property.

10
Meade Avenue and Randolph Street properties, were all deeded

back to the Smiths for nominal consideration a little over a

year after a bankruptcy court judge granted Dorothy a discharge

in April 2002.

c. Subsequent conduct. The Smiths testified that they

thought Machinski had deeded them the entire property in 2003,

and from then until the title issue arose in 2020, they had

believed that the property was theirs. Consistent with that

belief, the Smiths managed it, paid all expenses, kept rental

proceeds, and pledged it as security for a mortgage, all without

input from Machinski. Machiniski, who resided in California

until he learned of the title issue in August 2020, testified

that if the plaintiffs had agreed to his offer to sell the

property for $1.1 million, he would have "given [his parents]

all the money." These statements and behaviors are consistent

with an agency relationship. See Bellemare v. Clermont, 69

Mass. App. Ct. 566, 571, 575 (2007) (defendant titleholder who

"never derived any benefit from the subject property, never

received any compensation or income from the property, and never

exercised any management or control of the property," was not

owner but agent "for the principals' convenience"); Restatement

(Second) of Agency § 14B comment f (1958) ("Where a person

transfers property to another, the question whether there is an

agency depends upon the amount of control agreed to be exercised

11
by the person for whose benefit the transferee is to act, or, in

doubtful situations, upon the amount of control in fact

exercised").

d. Testimony regarding parcels G and P. Machinski's

testimony about deeding parcels G and P to the Smiths further

underscores his role as an agent for the Smiths. Despite his

assertion that he deeded the Smiths these parcels to alleviate

their concerns about potential development obstructing their

view, Dorothy disclaimed such a concern, testifying that she did

not recall being worried about development, even acknowledging

at one point that parcel G was "[n]ot buildable." If the Smiths

feared development blocking their view, it is also unclear why

Machinski would have conveyed both parcels rather than just the

parcel across the street. The most plausible explanation for

the conveyance of parcels G and P is that Machinski was acting

at the direction of the Smiths when he deeded them those

parcels, consistent with an agency relationship in which he took

title to the property for the Smiths' benefit.

Lastly, it is worth noting that Machinski's failure to

speak up until August 2020, despite clear notice that the

property was being marketed for sale,10 suggests that he did not

10Although Machinski denied having noticed it, a "for sale"
sign, visible from the Smiths' Meade Avenue home next door, was
in front of the property during a July 2020 visit to his
parents' Meade Avenue property.

12
view himself as the rightful owner until he learned the James

parcel was still in his name and realized he could leverage his

legal title to interfere with the sale and increase the purchase

price by $480,000.

Based on the foregoing evidence, the judge's finding that

Machinski held title to the James parcel as the Smiths' agent

was not clearly erroneous. See T.D. Downing Co. v. Shawmut

Corp. of Boston, 245 Mass. 106, 113 (1923) (principal-agent

relationship "may arise wholly by implication from the conduct

of the parties and the circumstances of the particular case");

Shear v. Gabovitch, 43 Mass. App. Ct. 650, 670 (1997) ("The

existence of an agency relationship is ordinarily a question of

fact, not to be reversed unless clearly erroneous").

3. Contract claims. The agreement required the Smiths to

"use reasonable efforts (not to exceed $2,500 exclusive of

voluntary liens and mortgages) to remove any defect in title."

The trial judge reasonably concluded that the Smiths' actions

not only failed to satisfy this obligation but breached the

implied covenant of good faith and fair dealing.

During her deposition, Dorothy testified that she had no

control over what Machinski did with the property and was

uncertain whether she could legally compel him to deed it to

her. Had she taken any steps to explore the legal options

available to her, Dorothy would have learned that an agent with

13
title to land must surrender it upon demand of the principal or

termination of the agency. Restatement (Second) of Agency

§ 422. See Restatement (Second) of Agency § 14B ("One who has

title to property which he agrees to hold for the benefit and

subject to the control of another is an agent-trustee and is

subject to the rules of agency"). See also Gagnon v. Coombs, 39

Mass. App. Ct. 144, 155 (1995) ("it is the agent's duty to obey

the will of the principal, to respond to the principal's wishes,

and not to act contrary to the principal's directions").

At trial, Dorothy testified that she and Edward had in fact

asked Machinski to convey the James parcel to them, but he

refused. However, the seriousness of any such request is

undermined by Edward's testimony that Machinski was "his own

man" and he could not make him do anything. When asked whether

he had "attempted to ask" or "make" Machinski deed the James

parcel to the Smiths, Edward responded:

"I am laughing because that is -- to me . . . that is such
an absurd question. [Machinski] has been -- he thinks and
probably is smarter than everybody in the room. There is
no way that I was going to convince him to do what he
didn't want to do and certainly I would not tell him to do
that. It is not my place to tell my children what they
should do."

The record thus provides an ample basis on which to conclude

that rather than making a serious effort to have Machinski

convey title, or exploring legal remedies within the $2,500

threshold set forth in the agreement (which could include, for

14
example, cooperating with the plaintiffs to bring an action

against Machinski), the Smiths simply disclaimed responsibility,

allowing Machinski to take possession and claiming that they

were mistaken about their ownership interest. In doing so, the

Smiths attempted to convert Machinski's legal title into a

beneficial interest -- encumbering the very title that they had

already agreed to convey to the plaintiffs. See J.J. Newberry

Co. v. Shannon, 268 Mass. 116, 119 (1929) (defendant "could not

without violating his contract bring into existence a right in a

third person incumbering the title which he had agreed to

convey").

The Smiths' conduct, viewed together with Machinski's

testimony that he believed the $620,000 sales price undervalued

the property by hundreds of thousands of dollars, supports an

inference that the defendants sought to take advantage of the

situation and sabotage the sale to secure a higher price, and in

turn, the judge's finding that the Smiths failed to act in good

faith and use reasonable efforts to fulfill their obligations

under the agreement. This conclusion is strengthened by

Edward's candid admission that he did not believe he owed the

plaintiffs a duty of good faith -- a striking repudiation of the

covenant of good faith and fair dealing that is implicit in

every contract under Massachusetts law. See Robert & Ardis

James Found. v. Meyers, 474 Mass. 181, 188 (2016). For these

15
reasons, the judge did not abuse his discretion in finding that

the Smiths had breached the purchase and sale agreement as well

as the implied covenant of good faith and fair dealing.

The escape clause of the agreement, stating that the

Smiths' failure to timely "remove any defects in title" would

void the parties' obligations, does not absolve the Smiths of

liability. It is well established that such escape clauses do

not allow sellers to avoid liability for failure to make

reasonable efforts to cure title defects. See Durkin v.

Ferreira, 21 Mass. App. Ct. 771, 774-776 (1986). More

particularly, where a party agrees to remove defects in title in

exchange for consideration, that party cannot later "set up

[those] defects as a ground for putting an end to the

obligations of the contract." J.J. Newberry Co., 268 Mass. at

118. See Hastings v. Gay, 55 Mass. App. Ct. 157, 162 (2002)

(escape clause "will not apply to void an agreement where the

seller's inability to convey good and clear title was the result

of his own fault or collusion").

Accordingly, under the circumstances, neither the

plaintiffs' lack of direct involvement in the agency

relationship between Machinski and the Smiths nor the fact that

Machinski was not a party to the agreement precluded the trial

judge from ordering Machinski to convey the James parcel to

Dorothy, and in turn, ordering Dorothy to convey the property to

16
the plaintiffs. See Merrill v. Ewen, 103 Mass. App. Ct. 37, 45-

46 (2023) ("Equity generally regards as done that which ought to

be done" [citation omitted]). Cf. Forte v. Caruso, 336 Mass.

476, 481 (1957) ("Specific performance may be decreed

notwithstanding the conveyance of the land to one who was not a

bona fide purchaser"); Dooley v. Merrill, 216 Mass. 500, 500

(1914) (equitable obligation to convey land "will be enforced

not only against the holder of the legal title, but against

others taking an interest in the legal title with notice, and

adequate remedy will be afforded to carry out this principle");

Kelly v. Cucchiella, 26 Mass. App. Ct. 983, 983 (1988) (straw

purchaser bound by actions of true owner); Young v. Reed, 6

Mass. App. Ct. 18, 21-22 (1978) (seller's equitable obligation

to convey property to plaintiffs enforceable against third party

who took title with knowledge of seller's prior agreement to

convey property to plaintiffs); Morris v. Costa, 174 Conn. 592,

601 (1978) (interest of parties holding bare legal title to

property "cannot prevent the doing of complete justice as

'[e]quity can always look behind the technical legal title if

17
necessary to work out under its principles the rights of the

parties'" [citation omitted]).11

Judgment affirmed.

By the Court (Henry,
Desmond, &
Englander, JJ.12),

Clerk

Entered: June 25, 2025.

11 We need not address the defendants' challenge to the
judge's findings on the constructive trust and unjust enrichment
claims since we have determined on independent grounds that the
judgment awarding specific performance on those counts was
appropriate. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102
(1997).

12 The panelists are listed in order of seniority.

18