Opinion
13-P-1762
06-16-2015
EUGENE GUERRERA v. ROBERT K. SAMIA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Robert K. Samia appeals from summary judgment in favor of the plaintiff, Eugene Guerrera, on Guerrera's complaint seeking both to collect on a 2006 Connecticut Superior Court judgment and to obtain a judgment declaring that the defendant's Worcester home is not protected from attachment by a declaration of homestead recorded on December 30, 2003. The judge entered an order for judgment in the amount of $120,000 plus interest and costs and declared that the declaration of homestead does not protect the defendant's home from attachment. We affirm.
Background. In the Connecticut action, which was commenced in August of 2003, the plaintiff alleged that the parties had entered into a written agreement on October 16, 1998, whereby the plaintiff was to provide $20,000 for the defendant to purchase, in their joint names, nineteen acres of land in the Bahamas. The plaintiff further alleged that the defendant received the $20,000 but failed to purchase the property and refused to return the money. The plaintiff also claimed that on November 24, 1998, the parties entered into a second written contract whereby the defendant was to purchase a condominium complex in the Bahamas in their joint names and the plaintiff was to provide some or all of the purchase price. The plaintiff further alleged that he provided $42,368.05 to the defendant, who breached the agreement by purchasing the complex in his own name and refusing to return to the plaintiff the $42,368.05 that he had paid. The plaintiff sought money damages and a constructive trust based on theories of breach of contract, unjust enrichment, statutory theft, and unfair trade practices.
On December 30, 2003, some four months after the Connecticut action had commenced, but almost three years before judgment entered, the defendant, together with Roger Samia, took title to the Worcester property and simultaneously recorded an elderly declaration of homestead pursuant to G. L. c. 188, § 1A, as then in effect. In November of 2006, the parties entered into an agreement for judgment in the Connecticut action. It provided that judgment was to enter in favor of the plaintiff in the amount of $120,000, but that the judgment could be satisfied if the defendant paid $25,000 by October 1, 2006, and an additional $37,368.05 by December 31, 2006, the combined amount being the total sum the plaintiff alleged he had provided to the defendant.
The plaintiff commenced this action on September 21, 2010, alleging that the defendant had failed to make any payments and, pursuant to the terms of the judgment, the entire $120,000 was now due. The plaintiff also sought and received an ex parte real estate attachment of the Worcester property. The defendant filed a motion to dismiss, claiming that the Worcester property is protected by the declaration of homestead he recorded simultaneously with the deed when he took title with Roger Samia on December 30, 2003.
In the present action, the defendant claims that the monies received from the plaintiff were invested, by agreement, in a restaurant business in the Bahamas which ultimately failed. He denies he received monies to purchase real estate. He also asserts that he consented to the agreement for judgment because he was ill and was recuperating from a kidney transplant. These contentions, however, are without effect. Having agreed that judgment should enter against him and failing to deny in the agreement for judgment the allegations of the Connecticut complaint, he is bound by those allegations. Connecticut appellate courts have made it quite clear that "[w]hen parties to a lawsuit voluntarily enter into a stipulated judgment, such judgment is as conclusive as if it had been rendered upon controverted facts." Such is the case here, where the gravamen of the plaintiff's complaint is that the defendant breached his contracts with the plaintiff to purchase both land and a condominium complex in their joint names. Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 48-49 (1987). Moreover, it is presumed that the parties intended to settle all of the issues raised by the papers in the record. Ibid. See Gagne v. Norton, 189 Conn. 29, 34 (1983); Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558 (1983).
The plaintiff filed a motion for summary judgment, essentially arguing that the declaration of homestead did not preclude attachment of the Worcester home and that there was no genuine issue of material fact related to the defendant's liability on the judgment. The defendant did not oppose the plaintiff's motion for summary judgment. The judge granted summary judgment to the plaintiff, declaring that the plaintiff's claim preceded the declaration of homestead.
At oral argument, the defendant noted he had filed a motion to dismiss that addressed the same arguments with regard to the attachment issue as did the plaintiff's summary judgment motion. In our discretion, we will not elevate form over substance and will consider the submissions for the two motions together.
Discussion. General Laws c. 188, § 1A, the elderly homestead statute as in effect prior to St. 2010, c. 395, § 1, excepted from an estate of homestead "any and all debts, encumbrances or contracts existing prior to the filing of the declaration. . . ." The statute thus exempted both previously existing debts and contracts from its protection. Although the plaintiff's claims against the defendant are rooted in contract, the defendant urges us to construe the homestead statute in such a way as to ignore that fact. The defendant argues that the Connecticut complaint pertains to an "executory" contract and that our cases have interpreted the term "debt" as excluding "executory" contracts where there are no liquidated damages. Put another way, he asserts that where the plaintiff's damage claims are arguably based on "executory" contracts, they do not qualify as "debts" within the meaning of the homestead statute. In support of that position he cites H. G. Kilbourne Co. v. Standard Stamp Affixer Co., 216 Mass. 118, 122 (1913). Although Kilbourne does not address the homestead statute, it deals with the meaning of the term "debt."
In Kilbourne, the Supreme Judicial Court concluded that a "debt" within the meaning of the reach and apply statute does not include an action based on an executory contract that is wholly unliquidated. Whether the elderly homestead statute in effect in 2003 applied to the claims raised in the plaintiff's Connecticut complaint does not depend, however, on the scope of the term "debt" as used in the reach and apply statute considered in Kilbourne. By its own terms, the homestead statute applies to "any and all" debts or contracts existing prior to the declaration of homestead. It is thus not necessary to determine, as the defendant suggests, that for a contract to qualify for the homestead exception it must also constitute a debt as that term is defined in Kilbourne. The language of the elderly homestead statute in effect in 2003 is broad enough to include the breach of contract claims asserted in the plaintiff's Connecticut action.
We are aware that the elderly homestead statute has since been amended to eliminate the "contract" exception, but the amendment did not become effective until March 16, 2011, and does not apply to this case. On this record, therefore, we cannot say the judge erred in finding that the declaration of homestead recorded months after the commencement of the Connecticut action on contracts that were signed in 1998 does not protect the Worcester property from attachment to secure payment for breach of those contracts.
The homestead statute now provides that an estate of homestead shall be exempt from execution on judgment, levy and sale for payment of debts except for "a lien on the home recorded prior to the creation of the estate of homestead" and "upon an execution issued from a court of competent jurisdiction to enforce its judgment based upon fraud, mistake, duress, undue influence or lack of capacity. G. L. c. 188, § 3(b)(2) and (6), as appearing in St. 2010, c. 395, § 1.
Judgment affirmed.
By the Court (Rapoza, C.J., Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 16, 2015.