EVOLVING PROPERTIES LLC v. LIANN DIMARE & Others; KIM MULLIGAN, Defendant-In-Counterclaim.

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-1356

EVOLVING PROPERTIES LLC

vs.

LIANN DIMARE1 & others;2 KIM MULLIGAN, defendant-in-counterclaim.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises out of an agreement between the parties to

purchase, renovate, and "flip" a condominium.3 The plaintiff,

Evolving Properties LLC (Evolving),4 commenced an action in

Superior Court against the defendants, Liann DiMare, doing

1 Doing business as Lili Pad Properties 401K PSP.

2Lili Pad Properties 401K PSP and Liann DiMare, as trustee
of Lili Pad Properties 401K PSP.

3"Flipping" has been defined as "where a seller purchases a
property, renovates it, and may incidentally live at the
property . . . before he or she is able to sell the property,
but where it is evident from the circumstances that it was not
intended as a long term residence." Sullivan v. Five Acres
Realty Trust, 487 Mass. 64, 70 (2021).

4Kim Mulligan, Evolving's manager, was later added as a
party as a defendant-in-counterclaim.
business as and as trustee of Lili Pad Properties 401K PSP, and

Lili Pad Properties 401K PSP (collectively, Lili Pad), alleging

breach of contract, unjust enrichment, and wrongful foreclosure,

and seeking declaratory judgment and partition of the property.

Lili Pad counterclaimed, alleging breach of promissory note,

breach of memorandum of sale, negligent misrepresentation,

trespass, intentional interference with business relations,

unjust enrichment, and conversion. The parties also brought

claims against each other pursuant to G. L. c. 93A.

At trial, the parties submitted several claims to the judge

on directed verdict motions and agreed that certain others could

be decided by the judge prior to the jury verdicts, with the

remainder to be submitted to the jury.5 The judge found in favor

of Lili Pad on the claims for breach of promissory note,

wrongful foreclosure, and breach of memorandum of sale. The

jury found for Evolving on its breach of contract claim.6

5 The parties waived written findings of fact and rulings of
law by the judge under Rule 20(2)(h) of the Rules of the
Superior Court (2018). Although the judge nevertheless issued a
written "decision on claims" dated the day after the jury
verdicts, there is no dispute that the judge rendered his
decisions the day before the parties made closing arguments to
the jury. Lili Pad did not submit the claims for trespass,
intentional interference, and conversion to the judge or jury.
The judge concluded that neither party proved a violation of
G. L. c. 93A.

6 The jury found for Lili Pad on its counterclaim for unjust
enrichment.

2
Evolving appeals the judge's verdicts in favor of Lili Pad for

wrongful foreclosure, breach of promissory note, and breach of

memorandum of foreclosure sale, as well as for declaratory

judgment that Lili Pad's foreclosure was valid. We affirm.

Background. In October 2017, Evolving signed an offer to

purchase a condominium at 63 Decarolis Drive in Tewksbury

(property) for $203,000. Following the offer to purchase,

Evolving contacted Lili Pad about a loan. Evolving subsequently

signed a promissory note for a $101,000 loan (promissory note)

from Lili Pad. Although the parties dispute the purpose of this

loan, the promissory note stated that the proceeds "shall be

used for commercial purposes only, namely the Renovation of the

real estate located at 63 DECAROLIS DR., Tewksbury, MA." The

promissory note required Evolving to repay the loan either upon

the sale of the property or in one year, whichever occurred

first.

Evolving and Lili Pad also entered an agreement,

memorialized in a series of emails, to partner on the project of

flipping and reselling the property (partnership agreement).7 In

November 2017, Evolving purchased the property using the money

from the promissory note to fund its share of the purchase

7 At trial, Lili Pad initially disputed whether the parties
ever formed a contract to flip the property together but later
agreed there was a contract and disputed only certain terms.

3
price. Lili Pad paid the remainder of the purchase price and

associated closing costs. Evolving granted Lili Pad a $101,000

mortgage on the property to secure the promissory note and

recorded the mortgage in the Middlesex Registry of Deeds.

Almost immediately after the closing, the parties began to

disagree about their roles in the renovation of the property.

As a result, Evolving attempted to renegotiate the terms of the

partnership in December 2017. When the promissory note became

due in November 2018, Evolving had not repaid any portion of it.

Kim Mulligan testified at trial that she sought to sell the

property to pay the promissory note but was not able to because

Liann DiMare withheld consent.

By June 2019, Evolving still had not repaid the promissory

note, and Lili Pad moved to foreclose on the property. After

the foreclosure notice, in June 2019, Evolving paid $78,000

toward the promissory note. In July 2019, Lili Pad conducted a

foreclosure sale for the property. Evolving was the highest

bidder at the auction with a bid of $190,000, and the parties

executed a memorandum of foreclosure sale (memorandum of sale).8

However, Evolving became concerned that Lili Pad did not have

good title and would not comply with the terms of the memorandum

8 Mulligan bid at the foreclosure sale in her personal
capacity. However, neither party makes substantive arguments
about this distinction on appeal.

4
of sale. Thereafter, Lili Pad declined Evolving's request for a

two-week extension of the closing and instead sent a default

notice. In September 2019, Lili Pad acquired title to the

entire interest in the property after Evolving failed to close

the transaction. At the time, Mulligan's daughter lived at the

property, and she remained there after the foreclosure and until

the time of trial in September 2023.

Discussion. 1. Waiver. Evolving argues that implicit in

the jury's determination that Lili Pad breached the partnership

agreement was a finding that Lili Pad forced Evolving to breach

the promissory note by preventing the sale of the property.

Evolving further contends that the judge did not account for

this "implicit finding" by the jury, thereby rendering the

judge's verdicts for Lili Pad on the claims and counterclaims

related to the promissory note and foreclosure of the property

inconsistent with the jury's verdict. We conclude that Evolving

waived this argument by failing to raise it at trial. See

Luppold v. Hanlon, 495 Mass. 148, 165 (2025) (failure to raise

legal argument at trial ordinarily results in waiver).

To begin, Evolving agreed that the judge would decide the

claims relating to the promissory note. After the judge

announced his verdicts, the parties discussed jury instructions

5
and the verdict slip.9 The judge stated that he would tell the

jury that "Lili Pad lawfully foreclosed." The judge's draft

instructions regarding breach of the partnership agreement did

not include Lili Pad's alleged refusal to sell the property.

Furthermore, the judge declined to include a question on the

verdict slip on whether Lili Pad refused to sell the property.

Evolving did not object to the instructions as proposed or to

the verdict slip. Consistent with the charge conference, the

judge did not instruct the jury about Evolving's assertion that

Lili Pad forced a breach of the promissory note by preventing

the sale of the property. To the contrary, the judge told the

jury that Lili Pad "lawfully foreclosed . . . because Evolving

Properties failed to pay the full amount on the promissory note,

and the condition of the title was not a valid defense." Again,

Evolving did not object. Nor did Evolving object when the judge

instructed the jury to disregard Evolving's mention of the

promissory note during closing argument and explained again that

"the foreclosure was lawful." Finally, Evolving did not seek to

clarify whether the jury's verdicts were based on Lili Pad's

forced breach of the promissory note or otherwise to correct any

9 Evolving conceded at oral argument that the plaintiffs'
brief erroneously described the chronology of the verdicts. As
noted above, the judge decided the outcome of all non-jury
claims and directed verdict motions the day before the jury
returned their verdicts.

6
perceived inconsistency between the jury's and judge's verdicts

before the jury were discharged. See Service Publ., Inc. v.

Goverman, 396 Mass. 567, 573 (1986) (objection to verdicts as

inconsistent must be raised before jury discharged "when there

[is] time to correct the verdicts").

In sum, in the absence of timely objection to the judge's

verdict, the jury instructions, the verdict slips, or the jury

verdict, Evolving waived the argument that the judge's verdict

on the promissory note was inconsistent with the jury's verdict

on the partnership agreement.10

2. Inconsistent verdicts. Even if the issue were not

waived, we disagree with Evolving's contention that the verdicts

were inconsistent. Evolving argues that the partnership

agreement and the promissory note were so intertwined that the

jury's verdict necessarily reflected a determination that Lili

Pad forced Evolving to breach the promissory note by refusing to

cooperate in the sale of the property. Thus, Evolving argues,

the jury's verdict in its favor was inconsistent with the

judge's verdicts in favor of Lili Pad on the promissory note

claims. However, the judge found as a matter of law that the

10Lili Pad argues in its brief that to the extent the
inconsistent verdict issue was not waived, the jury damage award
against Lili Pad was unsupported by the evidence. Because we
conclude the issue was waived, and Lili Pad did not provide
proper notice of a cross-appeal, we need not address this issue.

7
partnership agreement and promissory note were separate

contracts. As we noted above, the jury were instructed not to

consider the promissory note. We presume that the jury followed

the judge's instruction and did not factor the promissory note

into the verdict for the partnership agreement. See David v.

Kelly, 100 Mass. App. Ct. 443, 451 (2021) (juries presumed to

follow judge's instructions).

We are not persuaded by Evolving's contention that the

amount of damages the jury awarded necessarily included a

finding that Lili Pad induced Evolving to breach the promissory

note. "To constitute inconsistent verdicts, it must be shown

that the verdicts are based on inconsistent findings of fact."

Service Publ., Inc., 396 Mass. at 573 n.8. Where there is a

"reasonable view of the evidence which harmonizes the answers,"

a verdict is not inconsistent. Palriwala v. Palriwala Corp., 64

Mass. App. Ct. 663, 673 (2005), quoting Technical Facilities of

Am., Inc. v. Joseph T. Ryerson & Son, Inc., 24 Mass. App. Ct.

601, 605 (1987). In the absence of a special verdict, we cannot

speculate about exactly how the jury arrived at the damage

figure. See Dalessio v. Dalessio, 409 Mass. 821, 829 (1991).

However, the jury's award to Evolving for Lili Pad's breach of

the partnership agreement reasonably could have been based, as

counsel for Evolving informed the judge during the charge

8
conference, on "the costs, the repairs, and the lost profits

that [Evolving] would've realized from the sale of the

property." Such a determination would raise no inherent factual

inconsistency between the jury verdict for Evolving on the

partnership agreement claim and the judge's verdicts for Lili

Pad on the promissory note and foreclosure claims.11

Judgment affirmed.

By the Court (Grant,
Brennan & Smyth, JJ.12),

Clerk

Entered: November 26, 2025.

11Lili Pad's request for attorney's fees incurred in
defending this appeal is denied.

12 The panelists are listed in order of seniority.

9