McMann v. McGowan

883 N.E.2d 980

71 Mass. App. Ct. 513

Paul McMANN v. Linda B. McGOWAN.

No. 06-P-1562.

Appeals Court of Massachusetts, Middlesex.

Argued November 16, 2007.

Decided April 7, 2008.

Floyd H. Anderson, Boston, for the plaintiff.

Rory Z. Fazendeiro, Boston, for the defendant.

Present: COWIN, COHEN, & GRAHAM, JJ.

GRAHAM, J.

In this appeal, the plaintiff claims that a judge of the Superior Court misconstrued a contractual notice provision prescribing delivery "in hand" and, as a result, erred when he issued an order dissolving a memorandum of lis pendens and allowing the defendant's special motion to dismiss. See G.L. c. 184, § 15. We affirm.

Background. In September, 2004, the defendant accepted the plaintiff's offer to purchase property located at 22 Summer Street in Weston for a total purchase price of $769,000. The parties entered into a purchase and sale agreement (P & S) on October 8, 2004, which was amended on October 15, 2004, and was subject to the issuance of a building permit for an affordable housing project. The P & S required closing within thirty days of the issuance of a building permit and within nine months of the P & S execution date, i.e., July 8, 2005.

The notice provision, section 21 of the P & S, set forth explicit requirements regarding the appropriate methods for notices provided by the parties, stating in relevant part:

"All written notices required or permitted to be made under this Agreement shall be delivered in hand, sent by certified mail, return receipt requested, sent by United States Postal Service overnight Express Mail or other overnight delivery service, or by facsimile with a copy sent by first class mail, addressed to the BUYER or SELLER or their authorized representative at the address set forth in this paragraph. Such notice shall be deemed to have been given upon delivery or, if sent by certified mail on the date of delivery set forth in the receipt or in the absence of a receipt three business days after deposited or, if sent by overnight mail or delivery, the next business day after deposit with the overnight mail or delivery service, whether or not a signature is required. Acceptance of any notice, whether by delivery or mail, shall be sufficient if accepted or signed by a person having express or implied authority to receive same. Notice shall also be deemed adequate if given in any other form permitted by law."

When the plaintiff was unable to close by July 8, 2005, the parties executed a document entitled "Agreement of the Parties" (extension), which incorporated and revived the P & S, and set the time for performance as October 15, 2005, unless the plaintiff provided written notice to the defendant on or before October 5, 2005, to extend the closing date to December 15, 2005.

On October 24, 2005, the defendant notified the plaintiff that his failure to close or to extend the closing by October 5, 2005, constituted a material breach of the parties' P & S and extension agreements and that the agreements consequently were void and no longer in effect.

In November, 2005, the plaintiff filed a verified complaint and an amended verified complaint seeking declaratory relief, specific performance, and damages for breach of contract, all arising from the failure of the parties to consummate the P & S. In his amended verified complaint, the plaintiff stated in relevant part:

"On or about September 23, 2005 [the plaintiff] ... hand delivered notice of his decision to extend the closing date to December 15, 2005 to the offices of [defendant's counsel]."

The complaint contained no other specifics regarding how delivery was effectuated.¹

On November 4, 2005, the plaintiff filed a motion for approval of a memorandum of lis pendens, which the defendant opposed. After a judge of the Superior Court allowed the motion, the defendant filed an answer and counterclaim. In her answer, the defendant denied that the plaintiff had hand-delivered a notice to extend the closing date.

On December 27, 2005, the defendant notified the plaintiff of his obligation to preserve all electronic evidence regarding the creation and authenticity of the notice. In March, 2006, the defendant filed a motion to compel the production of documents. The court allowed the defendant's motion, which was unopposed. In the ensuing discovery, the plaintiff revealed, for the first time, that when he delivered the notice "[n]o one was in the office so [he] left [it] on what looked like the receptionist's cubicle on top of a pad that seemed to be used for recording telephone messages." The plaintiff also claimed that the electronic evidence, by which the defendant had sought to authenticate the notice letter, was damaged and unrecoverable.

In June, 2006, the defendant filed a special motion to dismiss and a motion for dissolution of the memorandum of lis pendens. See G.L. c. 184, § 15(c). The motions were heard by a second judge of the Superior Court who, on July 31, 2006, issued a memorandum of decision and an order allowing the special motion to dismiss and dissolving the memorandum of lis pendens. In his memorandum of decision, the judge found that the plaintiff failed to give proper notice of his intent to extend the closing date. The judge also found that the plaintiff omitted material facts from his amended verified complaint, namely, that the plaintiff did not deliver the notice to a person and that no one with authority accepted or signed for the notice. From the subsequent order allowing the defendant's special motion to dismiss and dissolving the memorandum of lis pendens, the plaintiff brought the instant appeal.

Contract interpretation. The judge below determined that the plaintiff did not comply with the contractual notice provision prescribing delivery "in hand" because the plaintiff did not put the notice in the hand of a person with express or implied authority to accept delivery. The plaintiff contends that the judge's interpretation of the notice provision was erroneous because the term "in hand" merely required delivery by hand to defense counsel's address.² We agree with the judge's interpretation of "in hand" and his conclusion that the plaintiff did not comply with the requirement of "in hand" delivery.

"The interpretation of a written contract is a question of law." Brillante v. R.W. Granger & Sons, Inc., 55 Mass.App.Ct. 542, 548, 772 N.E.2d 74 (2002). When the words of a contract are not ambiguous the contract language must be construed in its usual and ordinary sense. 116 Commonwealth Condominium Trust v. Aetna Cas. & Sur. Co., 433 Mass. 373, 376, 742 N.E.2d 76 (2001). "We read the [contract] as written. We are not free to revise it or change the order of the words." Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 147, 461 N.E.2d 209 (1984). In addition, "[a]ll parts of an agreement are to be construed together as constituting a single and consistent arrangement." Crimmins & Peirce Co. v. Kidder Peabody Acceptance Corp., 282 Mass. 367, 375, 185 N.E. 383 (1933). We "must `give effect to the parties' intentions and construe the language to give it reasonable meaning wherever possible.'" Brillante, supra, quoting from Baybank Middlesex v. 1200 Beacon Properties, Inc., 760 F.Supp. 957, 963 (D.Mass.1991).

The parties have not cited any authority on the meaning of "in hand," and although that term appears in our statutes, court rules, and decisions, we have been unable to locate any Massachusetts cases that explicitly define that term. There is legal authority, however, that uses the term "in hand" to characterize delivery to a person.³ See, e.g., Harding v. Studley, 290 Mass. 310, 313, 315, 195 N.E. 105 (1935) (characterizing handing of item to individual as a "delivery in hand"); Commonwealth v Perry, 15 Mass.App.Ct. 281, 282-283, 444 N.E.2d 1319 (1983) (characterizing statutory phrase, "delivered to the offender," as "in-hand delivery"); Lombardi v. Lombardi, 68 Mass.App.Ct. 407, 413, 415, 862 N.E.2d 436 (2007) (characterizing statutory phrase, "the individual is personally served with a notice," as "in-hand service"). This authority indicates that delivery "in hand," as used in its ordinary and usual sense, means that the item to be delivered is placed in the hand of the intended receiver—not that the item is carried in the deliverer's hand, as suggested by the plaintiff's interpretation. The plaintiff's interpretation would more accurately describe "by hand" delivery.

We believe that our view of the meaning of "in hand" delivery also finds support in both the context in which the term appears and the purpose of the contract's notice provisions. In addition to delivery "in hand," the notice provision lists three other methods that the parties could use to effectuate delivery of notice. Each of these methods (certified mail, overnight delivery, and facsimile service) provide a paper or electronic trail, thereby enabling delivery to be verified without reliance on an uncorroborated assertion by the plaintiff. See Cinder Prod. Corp. v. Schena Constr. Co., 22 Mass.App.Ct. 927, 929, 492 N.E.2d 744 (1986) (registered mail and certified mail facilitate proof of delivery of notice); Computune, Inc. v. Tocio, 44 Mass.App.Ct. 489, 493, 691 N.E.2d 994 (1998), quoting from Gerson Realty Inc. v. Casaly, 2 Mass.App.Ct. 875, 875, 316 N.E.2d 767 (1974) ("`The function of a requirement that notice be transmitted by registered mail is to provide a means of resolving disputes as to the fact of delivery of the notice.' Delivery by Federal Express ... serves the same function and provides the same proof of delivery as certified or registered mail").

Thus, three of the four alternative methods by which notice may be effected create a means of verification that does not depend solely on the notice giver. While "in hand" delivery does not by itself generate the same kind of written or electronic verification (absent a requirement of a signed receipt), it at least envisions a living...