Opinion
22-P-84
11-28-2022
ARNOLD CAVE & another[1] v. JOHN CAVE, individually and as executor.[2]
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this contract action, the plaintiffs appeal from a summary judgment entered against them and in favor of the defendant by a judge of the Land Court. Because, like the motion judge, we conclude that the plaintiffs' claim was foreclosed by the language of the parties' agreement, we affirm.
Background.
Except as we note otherwise, the following facts are undisputed. At issue in this appeal is a seventy-nine acre property in Wilmington and Tewksbury (property) made up in part of property formerly owned by Ann Krochmal, the mother of siblings Arnold Cave, Cheryl Ingersoll, and John Cave. Historically, and at all times relevant to this appeal, John, Arnold, and other family members farmed the property, growing crops and raising livestock, prominently, pigs. In addition to those activities, beginning in 1995, John leased a portion of the property to Bacher Maintenance Corporation (BMC). BMC first used the leased portion of the property for wood recycling and processing, but within one year, BMC began producing compost in part using manure generated from the pigs and other livestock on the property. BMC continued to run a commercial composting operation on the property at all relevant times, and from approximately 1996 onward, John obtained the State permits required to qualify the operation as "agricultural composting."See 330 Code Mass. Regs. §§ 25.00 (1993) . John also continued to grow crops and raise pigs and other animals on the property.
To avoid confusion, we refer to Arnold and John by their first names.
Some, but not all, of the compost made at the farm was used there.
As we discuss, infra, the plaintiffs argue that there is conflicting evidence about whether the composting operation on the property has been conducted in compliance with the permits and applicable regulations. The plaintiffs' focal argument on the issue is that the BMC composting has expanded from a four-acre segment of the property to include approximately eight of its acres.
Ann Krochmal died on January 2, 2001. John attempted to probate the will; Arnold and Ingersoll objected. The dispute was resolved in July 2002, when Arnold, John, and Ingersoll signed an "agreement for compromise of will" (agreement). As relevant to this appeal, the agreement provided that the property would belong to John with the caveat that "[i]f any portion of [the property] should be sold or cease to be operated as a farm within . . . twenty-one year[s of the date of the agreement], then the [property] shall be sold for its then fair market value and the proceeds therefrom shall be divided equally by and among John Cave, Cheryl Ingersoll and Arnold Cave" (sale provision).
John continued to grow crops, raise livestock, and allow BMC to conduct its composting operation. On August 26, 2019, however, the plaintiffs filed in the Land Court a complaint for specific performance of the agreement. Their allegations included the claim that because "[c]omposting is not considered farming when the compost is comprised of material not produced on site," the portion of the property on which BMC conducted its composting operation was no longer being "operated as a farm," thus triggering the sale provision.
As alternative grounds for relief, the plaintiffs argued that (1) "the raising of hogs . . . also may not be considered 'farming[,]'" and (2) John violated the agreement by granting an option to lease a portion of the property to T-Mobile Northeast, LLC, "for a cell tower." The judge granted summary judgment for John on those theories at an earlier stage of the proceedings; they are not part of this appeal.
John moved for summary judgment; after a hearing, the judge allowed the motion in part, but suspended consideration of the plaintiff's claim that the composting operation entitled them to relief pending additional discovery on that issue. See Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974). After another hearing, the judge allowed the motion in its entirety, setting forth his reasoning in a thoughtful and detailed written decision. The plaintiffs' motion for reconsideration was denied, and the plaintiffs appealed from both the judgment and the order denying their motion for reconsideration.
See note 6, supra.
Their appeal is limited to the question whether the plaintiffs were entitled to summary judgment on the grounds that the composting activities, as expanded to include approximately eight acres of the property, triggered the sale provision of the agreement.
Discussion.
We review a grant of summary judgment de novo, relying on the record before the motion judge. See Lynch v. Crawford, 483 Mass. 631, 641 (2019). Where, as here, the party opposing summary judgment bears the burden of proof at trial, the moving party may prevail "if he [or she] demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), [as amended, 436 Mass. 1404 (2002),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "In deciding a motion for summary judgment the court may consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits." Niles v. Huntington Controls, Inc., 92 Mass.App.Ct. 15, 18 (2017).
The plaintiffs maintain that the word "farm" as used in the sale provision is ambiguous, creating a genuine issue of material fact about the meaning of the agreement insofar as it required sale of the property if any portion of it "should . . . cease to be operated as a farm." "'Whether an agreement is ambiguous is a question of law for the courts,' Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 N.Y.3d 398, 404 (2009) (quotation omitted), and is subject to our de novo review. See Balles v. Babcock Power Inc., 476 Mass. 565, 571 (2017)." Acushnet Co. v. Beam, Inc., 92 Mass.App.Ct. 687, 693-694 (2018). To determine whether a contractual term is ambiguous, we "must first examine the language of the contract by itself, independent of extrinsic evidence concerning the drafting history or the intention of the parties." Bank v. Thermo Elemental, Inc., 451 Mass. 638, 648 (2008). In doing so, we are mindful that "[p]articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. . . . [A] sensible meaning of words should be sought." Acushnet Co., supra at 694, quoting Kass v. Kass, 91 N.Y.2d 554, 566 (1998). See Indus Partners, LLC v. Intelligroup, Inc., 77 Mass.App.Ct. 793, 795 (2010), quoting Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass.App.Ct. 726, 729 (1999) (test for ambiguity is "whether 'the phraseology can support [a] reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken'").
Applying these rules to the agreement and reading the word "farm" as it was used in the sale provision, see Acushnet Co., 92 Mass.App.Ct. at 694, we conclude that there was no ambiguity in the meaning of "farm" when viewed in light of the undisputed facts. The agreement provided for the sale of the property if it (or any part of it) "cease[d] to be operated as a farm" (emphasis added). The only reasonable interpretation of the provision including this wording is that the property was being "operated as a farm" at the time of the agreement, and thus all activities then taking place on the property were included within that definition. Defining the "farm" to include all activities being conducted on the property at the time of the agreement brings BMC's composting activities within the agreement's definition of "farm" operations, meaning that they could not trigger the sale provision of the parties' agreement.
We are not persuaded by the plaintiffs' arguments that conflicting evidence about whether, by the time the plaintiffs filed their complaint, BMC's composting operation continued to qualify as "agricultural composting" for the purposes of the Massachusetts Department of Agricultural Resources (MDAR) permitting regulations created a genuine issue of material fact that precluded summary judgment in John's favor. Given our conclusion that the language of the sale provision is unambiguous in light of the undisputed uses of the property at the time of the agreement, that "alone determines the contract's meaning." Balles, 476 Mass. at 571. Accordingly, the ability (or inability) of the composting operation to meet the regulatory requirements for "agricultural composting" was not relevant to the proper interpretation of the agreement, nor was it material that the composting operation may have expanded by four acres. Accordingly, neither of these arguments presented a genuine issue of material fact. See Dennis v. Kaskel, 79 Mass.App.Ct. 736, 740-741 (2011), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (in summary judgment context, "a dispute about a material fact is 'genuine' when 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,' and a fact is 'material' when it 'might affect the outcome of the suit under the governing law'"). It follows that John therefore demonstrated that the plaintiffs had "no reasonable expectation of proving an essential element of [their] case," Kourouvacilis, 410 Mass. at 716 -- that any of the property had "cease[d] to be operated as a farm" -- and that summary judgment was properly entered for him on the plaintiffs' claim for specific performance.
This includes the plaintiffs' contention that BMC's operations had expanded from its original four-acre site to include an area closer to eight acres.
We discern little merit in the plaintiffs' appeal and affirm on essentially the same grounds as those on which the motion judge relied. Nonetheless, mindful that "[appellate courts] are hesitant to deem an appeal frivolous and grant sanctions except in egregious cases," Marabello v. Boston Bark Corp., 463 Mass. 394, 400 (2012), quoting Symmons v. O'Keeffe, 419 Mass. 288, 303 (1995), we decline John's request, pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), for attorney's fees and double costs.
To the extent the plaintiffs' motion for reconsideration of the entry of summary judgment included arguments beyond those we have addressed above, they "have not been overlooked. We find nothing in them that requires discussion." Department of Revenue v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Conclusion.
The judgment is affirmed. The order denying the defendant's motion for reconsideration is also affirmed.
So ordered.
The panelists are listed in order of seniority.