GARRETT HEALEY & Another v. ROCKLAND TRUST COMPANY.

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-1005

GARRETT HEALEY1 & another2

vs.

ROCKLAND TRUST COMPANY.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Garrett Healey, doing business as Garrett

Auctioneers, and John McQuaid, brought this action to recover a

commission for the sale of real estate that they allege they

were owed by the defendant, Rockland Trust Company, as the

successor by merger to East Boston Savings Bank (bank). A judge

of the Superior Court granted summary judgment in favor of the

defendant on all claims. On appeal, the plaintiffs argue that

their contract-based claims are not barred by the real estate

licensing statute, G. L. c. 112, § 87RR, and the Statute of

1 Doing business as Garrett Auctioneers.

2 John McQuaid.

3 Successor by merger to East Boston Savings Bank.
Frauds, G. L. c. 259, § 7. The plaintiffs also argue in the

alternative that McQuaid is entitled to recover under a theory

of quantum meruit.4 We affirm.

Background. 1. Facts.5 From 2006 to 2008, the bank made

loans totaling over $4 million to Norchamp Development, LLC

(Norchamp), in connection with a forty-unit development project

in the town of Middleton. In exchange, Norchamp granted the

bank mortgages on the property, and Frank Ciampa, a principal of

Norchamp, personally guaranteed the loans. By 2010, Norchamp

was in default on those loans and mortgages, and the project was

in financial trouble. In September 2010, the bank filed a

lawsuit against Norchamp and Ciampa to recover the amounts owed,

and the bank was granted a real estate attachment of roughly

$4.5 million against Norchamp and $3.5 million against Ciampa

(Norchamp litigation). Given the trouble facing the project,

the bank was considering its options to recover the amount it

4 The plaintiffs concede that their claim for a violation of
G. L. c. 93A is barred by the relevant statute of limitations.
See G. L. c. 260, § 5A. Therefore, we affirm the portion of the
judgment dismissing that claim without further discussion.

5 The facts are drawn from the summary judgment record.
Where disputes of fact exist, we view the evidence in the light
most favorable to the party against whom summary judgment was
entered, here, the plaintiffs. See Williams v. Board of Appeals
of Norwell, 490 Mass. 684, 685 (2022).

2
was owed, including through a short sale or foreclosure.

However, Norchamp remained the owner of the property.

Also in September 2010, the bank's president entered into

an oral agreement with Healey, a licensed auctioneer, to secure

a buyer for the property in exchange for a ten percent

commission. At the meeting, Healey stated that he could auction

the property and also that he would work with a "broker of

record" in case they received an offer to purchase ahead of the

live auction. Thereafter, Healey entered into an oral agreement

with McQuaid, a licensed real estate broker, whereby McQuaid

would serve as the broker of record for the property and the two

would share the commission. Neither agreement -- i.e., the one

between Healey and the bank or the one between Healey and

McQuaid -- was reduced to writing.

Healey listed the property on his auctioneering website,

but later removed the listing at the bank's request because it

erroneously stated the property was "bank owned." Healey also

introduced a potential buyer to the bank's president, but that

person decided not to move forward with the deal.

Meanwhile, McQuaid identified Peter Barbagallo, a long-term

subdivision developer, as a possible purchaser for the property.

McQuaid engaged in negotiations on Barbagallo's behalf about the

potential sale. McQuaid brought Barbagallo to the property

countless times, reviewed Barbagallo's financials, discussed

3
specifics of the development with Barbagallo, brought in a

potential investor, and produced a broker's opinion of the value

of the property. McQuaid also met with Barbagallo and a vice

president of the bank. In November 2010, Barbagallo, through

McQuaid, made a written offer to the bank and Ciampa to purchase

the property for $3.5 million. After receiving the offer,

Norchamp's counsel, who was working closely with the bank,

stated in an e-mail message to Healey,

"There is no offer accepted at this time. But time is of
the essence. Also, the offer has to be [accepted] by the
bank, so while Frank [Ciampa] can agree on a sales
commission there is going to . . . have to be some wiggle
room on your payment. The bank will not allow you a 10%
commission on a payoff short by over [$]1,000,000.00 [of
the amount owed on the loans]. [Please], lets see what the
offer is and where I can go with the Bank, we do have to
move fast on this."

Ultimately, Barbagallo's offer was not accepted.

In 2011, the parties in the Norchamp litigation reached a

settlement. As part of the settlement, Ciampa, Barbagallo, and

entities controlled by them, formed Cranberry Commons

Condominium, LLC (Cranberry Commons), and Norchamp conveyed the

property to Cranberry Commons for $2.6 million. At the time,

the bank believed the sale "was the best deal that the Bank

could negotiate for the existing subject Norchamp loans."

McQuaid and Barbagallo dropped off a deposit check with the

bank's counsel. McQuaid also attended the closing. At the

closing, the bank's vice president inquired about Healey's check

4
and McQuaid was told by Norchamp's counsel that the check would

be forthcoming. Ultimately, the bank received all the proceeds

from the sale, but neither Healey nor McQuaid received a

commission.

2. Proceedings. In March 2014, Healy filed a lawsuit

against Ciampa, Norchamp, Barbagallo, and Cranberry Commons

seeking to recover a commission for the sale. Summary judgment

entered in favor of those defendants on all claims. In January

2017, the plaintiffs then brought this action against the bank

claiming breach of contract, quantum meruit, promissory

estoppel, fraud in the inducement, fraud and misrepresentation,

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

violation of G. L. c. 93A. The bank unsuccessfully moved to

dismiss the complaint, and the parties also obtained several

continuances. In January 2022, five years after the

commencement of this action, the bank filed its answer, raising

several affirmative defenses including that the plaintiffs'

claims are barred by the Statute of Frauds. Ultimately, on the

parties' motions for summary judgment and for reconsideration, a

judge of the Superior Court granted summary judgment to the

defendant on all claims.6 This appeal followed.

6 While this action was pending, the judge allowed the
bank's assented-to motion to substitute Rockland Trust Company
as the defendant.

5
Discussion. "The allowance of a motion for summary

judgment 'is appropriate where there are no genuine issues of

material fact in dispute and the moving party is entitled to

judgment as a matter of law'" (citation omitted). Williams v.

Board of Appeals of Norwell, 490 Mass. 684, 689 (2022). We

review the judge's decision granting summary judgment de novo.

See Metcalf v. BSC Group, Inc., 492 Mass. 676, 680 (2023).

1. Contract claims. The plaintiffs argue that they are

entitled to a real estate commission for their services under a

breach of contract theory. Such claims are barred by G. L.

c. 112, § 87RR, and the Statute of Frauds.

a. General Laws c. 112, § 87RR. Section 87RR requires

that anyone engaging in the business of a real estate broker

"directly or indirectly, either temporarily or as an incident to

any other transaction, or otherwise" must be licensed; the

statute also provides that no one shall recover in an action

"for compensation for services as a broker performed within the

commonwealth unless he was a duly licensed broker at the time

such services were performed." G. L. c. 112, § 87RR. General

Laws c. 112, § 87QQ, provides some exceptions to the licensing

requirements of § 87RR, including, as relevant here, for "a

person acting as a licensed auctioneer."

Healey argues that summary judgment was inappropriate

because a factual dispute exists whether he was acting as a

6
licensed auctioneer under § 87QQ at all relevant times and,

thus, was exempt from the requirements of § 87RR. On this

point, Healey points to his own affidavit that he was working in

his capacity as an auctioneer "even though the sale never came

to an auction in the traditional sense." While Healey stated

that the "term 'auction' can be misleading, as it doesn't

necessarily refer to a specific time and place where potential

buyers gather to place bids," his position is belied by the

plain meaning of the words in the statutes.

The Legislature has broadly defined a real estate broker to

include, among other things, one who, for a commission,

"sells, . . . , purchases, . . . or negotiates, or offers,
attempts or agrees to negotiate the sale, exchange, [or]
purchase, . . . of any real estate, . . . or assists or
directs in the procuring of prospects or the negotiation or
completion of any agreement or transaction which results or
is intended to result in the sale, exchange, [or]
purchase, . . . of any real estate."

G. L. c. 112, § 87PP.

Here, the plaintiffs seek a commission for brokerage

services, i.e., locating a buyer and negotiating the sale of

real estate, outside of the auction process based on an oral

agreement made by a person who is not a licensed broker. Cf.

G. L. c. 100, § 1 (auctioneer is one who, for commission, "by

means of, or process of, an auction or sale at auction, offers,

negotiates or attempts to negotiate, a listing contract, sale,

purchase or exchange of" real property, among other things

7
[emphasis added]); id. (auction is "any sale, coming within its

ordinary meaning, by public outcry"). Even if an auctioneer

may, as Healey asserts, assist in locating potential buyers

outside of a formal auction, the parties do not dispute that

Healey enlisted the services of a licensed broker "in case we

received an offer (or 'bid') ahead of the live auction," and

because Healey "wanted to use McQuaid's real estate license."

Here, § 87RR controls because a licensed broker and not just a

licensed auctioneer was needed to effectuate the type of sale at

issue between Barbagallo and Norchamp. See Turnpike Motors,

Inc. v. Newbury Group, Inc., 403 Mass. 291, 295 (1988), S.C.,

413 Mass. 119 (1992) (unlicensed broker may not collect

commission on sale of real estate under § 87RR).

b. Statute of Frauds. i. Waiver. As an initial matter,

the plaintiffs argue that the defendant waived the Statute of

Frauds defense by failing to properly plead it. An affirmative

defense, like the Statute of Frauds, must be set forth "[i]n

pleading to a preceding pleading." Mass. R. Civ. P. 8 (c), 365

Mass. 749 (1974). Here, the defendant complied with that rule

by setting forth the defense in its answer. See Mass. R.

Civ. P. 7 (a), as amended, 385 Mass. 1215 (1982) (pleadings

include complaint and answer). See also Stanton Indus., Inc. v.

Columbus Mills, Inc., 4 Mass. App. Ct. 793, 793 (1976).

8
Nonetheless, the plaintiffs argue that they were prejudiced

by the fact that the answer was filed five years after this

action was commenced; however, the plaintiffs have not cited any

legal authority demonstrating that waiver of pleaded defenses is

required in these circumstances. Moreover, the plaintiffs

failed to file a motion to strike the answer, request to reopen

discovery, or otherwise argue prejudice before the judge in the

Superior Court; therefore, we decline to treat the affirmative

defense as waived on appeal.7 See Mass. R. Civ. P. 12 (f), 365

Mass. 754 (1974) (motion to strike may be filed within twenty

days of service of pleading).

ii. Application. The Statute of Frauds, G. L. c. 259,

§ 7, provides that "[a]ny agreement to pay compensation for

service as a broker or finder . . . shall be void and

unenforceable unless such agreement is in writing." The statute

excludes "a contract to pay compensation for professional

services of . . . a licensed real estate broker . . . acting in

their professional capacity." Id.

7 The plaintiffs argued in a written opposition to summary
judgment that the Statute of Frauds defense was waived because
the defendant did not raise that defense in its motion to
dismiss. However, at the hearing, the plaintiffs' counsel
properly acknowledged that a motion to dismiss is not a pleading
and "all but withdr[e]w" the argument. See National Equity
Props., Inc. v. Hanover Ins. Co., 74 Mass. App. Ct. 917, 918
(2009).

9
The oral agreement between Healey and the bank was one for

real estate brokerage services (as discussed above) and Healey

was not a licensed broker. Therefore, the Statute of Frauds

governs any such agreement and renders the oral agreement in

this case unenforceable. See G. L. c. 259, § 7.

To the extent that the plaintiffs argue that the Statute of

Frauds is inapplicable to the agreement because the plaintiffs

were in a joint venture and McQuaid was a licensed real estate

broker, that argument is foreclosed by 254 Code Mass. Regs.

§ 2.00(11) (1998).8 That regulation requires an entity like a

joint venture to obtain a separate brokerage license and

precludes an entity that does not do so or a licensee that works

on behalf of such unlicensed entity from "engag[ing] in the

business of real estate brokering."9 Id. The plaintiffs did not

8 The plaintiffs assert that the defendant waived its
argument concerning 254 Code Mass. Regs. § 2.00(11), because the
defendant did not plead the defenses of illegality and
unenforceability in its answer. We disagree where the argument
pertains to the defendant's assertion that the Statute of Frauds
applies and the defendant pleaded such defense.

9 Title 254 Code Mass. Regs. § 2.00(11), as in effect at the
time of the sale of the property, provided, in part, that

"No licensee may engage in the business of real estate
brokering in a corporation, limited liability company
(LLC), partnership, limited liability partnership (LLP),
association or society unless the entity is licensed by the
Board."

The regulation also required that to obtain a license, an
officer or partner of such entity must be a broker licensed by

10
obtain a separate license for their joint venture and the

regulation precludes the plaintiffs from simply relying on

McQuaid's brokerage license to avoid application of the Statute

of Frauds. See Thomann v. Board of Registration of Real Estate

Brokers & Salesmen, 481 Mass. 1006, 1010 (2018) (licensed broker

who engaged in real estate brokering business through unlicensed

limited liability company violated 254 Code Mass. Regs.

§ 2.00[11]). The agreement between Healey and the bank is not

enforceable. See G. L. c. 259, § 7.10,11

2. Quantum meruit claim. McQuaid argues that even if the

contract-based claims fail, he may recover under a theory of

the State. See id. We read the expansive language of the
regulation, including the reference to a partnership and an
association, to encompass a joint venture. Cf. Gurry v.
Cumberland Farms, Inc., 406 Mass. 615, 623 (1990) ("Though
similar to a partnership, a 'joint venture' differs in that it
is generally limited to a single transaction").

10 For the same reason, Healey's claim for recovery under a
quantum meruit theory is foreclosed. See Cantell v. Hill
Holliday Connors Cosmopulos, Inc., 55 Mass. App. Ct. 550, 554
n.6 (2002).

11 Because any oral agreement is unenforceable pursuant the
Statute of Frauds, McQuaid cannot recover as an intended third-
party beneficiary of the contract. See Miller v. Mooney, 431
Mass. 57, 63 (2000); Barrow v. Dartmouth House Nursing Home,
Inc., 86 Mass. App. Ct. 128, 133 (2014). See also Restatement
(Second) of Contracts § 309(1) & comment a (1981). Moreover,
other than arguing that the contract between Healey and the bank
was enforceable, the plaintiffs make no separate argument about
their fraud in the inducement, fraud and misrepresentation, and
breach of the covenant of good faith and fair dealing claims.
Therefore, we affirm the portion of the judgment as to those
claims.

11
quantum meruit. To prevail on that claim, McQuaid "must prove

(1) that [he] conferred a measurable benefit upon the [bank];

(2) that [McQuaid] reasonably expected compensation from the

[bank]; and (3) that the [bank] accepted the benefit with the

knowledge, actual or chargeable, of [McQuaid's] reasonable

expectation." Finard & Co. v. Sitt Asset Mgt., 79 Mass. App.

Ct. 226, 229 (2011).

The facts fail to establish the second and third elements

of the claim. Where McQuaid never had any direct communications

with the bank about a commission, he relies only on Healey's

representations and the circumstances of the sale as the basis

for his expectations. Contrast Finard & Co., 79 Mass. App. Ct.

at 230 (plaintiffs-brokers, who secured tenant for shopping

mall, were entitled to commission on quantum meruit theory where

management company of mall acknowledged in writing during

negotiations that mall's owner would pay broker's fee to

plaintiffs). McQuaid knew that the bank was not the record

owner of the property and that the bank was considering but had

not foreclosed on the property. Contrast Isenberg v. Williams,

306 Mass. 86, 88 (1940) ("If the broker is ignorant what the

defendant's relation to the land is, and is asked to find a

purchaser for the land, and does find one, who is willing to buy

on terms satisfactory to the defendant, his commission is

earned, even if the defendant does not then own the land

12
[emphasis added, citation omitted]). Although McQuaid contends

he was acting as the bank's broker, he does not dispute that he

served as Barbagallo's broker with respect to the purchase of

the property. McQuaid's communications with the bank and others

were consistent with his representation of Barbagallo.

Moreover, neither Barbagallo nor the bank executed any document

consenting to McQuaid's representation of them, as would be

required under 254 Code Mass. Regs. § 3.00(13) (2005). Viewing

the evidence in the light most favorable to the plaintiffs,

McQuaid has not shown that he had a reasonable expectation of

receiving a commission from the bank -- as opposed to from the

buyer, the seller, or Healey.

As the motion judge noted, McQuaid's own actions also

preclude his recovery because "[g]ood faith is a requirement for

recovery under quantum meruit."12 G4S Tech. LLC v. Massachusetts

Tech. Park Corp., 479 Mass. 721, 736 (2018). McQuaid knew or

should have known that Healey, as an unlicensed broker, could

not recover compensation for brokerage services under G. L.

c. 112, § 87RR. McQuaid still agreed to serve as the licensed

broker for Healey without adhering to 254 Code Mass. Regs.

12The motion judge rejected McQuaid's assertion that this
argument is waived because the defendant failed to plead
illegality or unclean hands as an affirmative defense. That
decision was not error and we do not disturb it. See Shea v.
Bay State Gas Co., 383 Mass. 218, 219 n.3 (1981).

13
§ 2.00(11), which would have required the plaintiffs, if they

were engaged in a joint venture as they now allege, to obtain a

separate brokerage license for that entity.

The same facts also fail to establish that the bank knew

that McQuaid reasonably expected payment from the bank. McQuaid

asserted that it was "customary practice" for "banks [to] hire

and pay real estate professionals commissions all the time when

they have an interest in it, even if they are not the property

owner." However, the bank did not hire McQuaid and did not

discuss a commission with him.

Judgment entered May 23,
2024, affirmed.

By the Court (Meade, Neyman &
Walsh, JJ.13),

Clerk

Entered: November 21, 2025.

13 The panelists are listed in order of seniority.

14