CHRISTIAN CHURCH LOGOS OF GOD v. THE JOSEPH LEON MOTTOLO POST NO. 4524, VETERANS OF FOREIGN WARS OF THE UNITED STATES, INC., & Another.

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-1369

CHRISTIAN CHURCH LOGOS OF GOD

vs.

THE JOSEPH LEON MOTTOLO POST NO. 4524, VETERANS OF FOREIGN WARS
OF THE UNITED STATES, INC., & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On March 30, 2021, Christian Church Logos of God (church)

filed an action requesting, inter alia, specific performance

against The Joseph Leon Mottolo Post No. 4524, Veterans of

Foreign Wars of the United States, Inc. (Post) to enforce a

purchase and sale agreement for a property located at 61 Lucia

Avenue in Revere.2 On cross motions for summary judgment, a

Superior Court judge denied the Post's motion for summary

judgment and allowed the church's motion for summary judgment on

1 Casa Lucia, LLC.

2The property is a commercial structure that the Post used
as a meeting/function hall. The church intends to operate the
property as a church.
its claim for specific performance.3 The Post appeals, arguing

(1) that the purchase and sale agreement had expired without an

extension, (2) in the alternative, that the church failed to

produce evidence that it was ready, willing, and able to perform

pursuant to the contract, and (3) the judge improperly relied on

inadmissible hearsay of a deponent designated by the Post

pursuant to Mass. R. Civ. Pro. 30 (b) (6), 489 Mass. 1401

(2022). We affirm.

Background. The parties entered into a purchase and sale

agreement for the church to purchase the property from the Post

on March 25, 2020. The purchase and sale agreement set the

closing date as May 15, 2020. The parties do not dispute that,

by agreement, they extended the closing date multiple times,

until August 14, 2020. They dispute, however, whether the date

was extended to October 29, 2020. The Post argues that the

purchase and sale was not extended beyond August 14, 2020.

On August 11, 2020, David O'Neil, an attorney representing

the church, sent an e-mail message to Cory Rhoades, an attorney

representing the Post, regarding parking plans for the property

and asked, "As for our closing, our last extension was to 8/14—

3 Separate and final judgment entered on the claim for
specific performance. Thus, contrary to the church's
contention, the judge's denial of the Post's cross-motion for
summary judgment on that claim is properly before us.

2
what do you think a reasonable closing date would be assuming we

can get our plans in to the city next week?" Rhoades responded,

"In terms of zoning timing, we will be on the September hearing

schedule with the appeal period passing sometime in late

October. Maybe say 10/29 to be safe." That same day, O'Neil

then sent Rhoades a letter asking that the Post return an

executed copy of the letter to confirm the extension to October

29, 2020. The Post did not execute the letter.

Nevertheless, the parties' attorneys continued to

communicate with each other about the sale. The Post's

attorneys performed work to complete the sale through September,

and the Post's deponent acknowledged that the Post was actively

in the process of selling the property to the church as late as

October 2, 2020. It was not until October 9, 2020, that the

Post's attorneys communicated to O'Neil that they deemed the

purchase and sale agreement to have expired on August 14, 2020,

and were no longer willing to sell the property to the church.

The church then brought this action on March 30, 2021.

Discussion. "We review the disposition of a motion for

summary judgment de novo, to determine whether all material

facts have been established such that the moving party is

entitled to judgment as a matter of law" (citation omitted).

3
American Int'l Ins. Co. v. Robert Seuffer GMBH & Co., 468 Mass

109, 113 (2014).

1. The closing date extension. While the Post contends

that the closing date was not extended to October 29, 2020, we

agree with the judge that the e-mail exchange on August 11,

2020, between the Post and the church extended the closing date

to October 29, 2020, and that even if it had not, the Post's

subsequent conduct waived the August 14, 2020 deadline.

"In interpreting a written contract, such as a purchase and

sale agreement, the court gives full effect to all the terms

expressed by the parties." Rogaris v. Albert, 431 Mass. 833,

835 (2000). Additionally, "[c]onditions and clauses of a

contract may be waived, either expressly or by words and

conduct." Owen v. Kessler, 56 Mass. App. Ct. 466, 470 (2002).

"[A]fter a variation of performance by a date certain has taken

place in that the obligee has . . . waived the condition, that

condition can be recreated only by a definite notice to the

debtor providing that the notice gives a reasonable time for

making up past deficiency" (quotation omitted). Church of God

in Christ, Inc. v. Congregation Kehillath Jacob, 370 Mass. 828,

834 (1976).

Here, the purchase and sale agreement granted the attorneys

representing the parties the authority to grant extensions of

4
the closing date and explicitly recognized that e-mail

transmissions were binding on them:

"By executing this Agreement, the BUYER and SELLER hereby
grant to their attorneys the actual authority to bind them
for the sole limited purpose of allowing them to cancel,
grant extensions, modify or amend this Agreement in
writing, and the BUYER and SELLER shall be able to rely
upon the signatures of said attorneys as binding unless
they have actual knowledge that the principals have
disclaimed the authority granted herein to bind them.
Further, for purposes of this Agreement, email
transmissions . . . shall be binding."

Given this language, the e-mail exchange between O'Neil and

Rhoades, in which Rhoades himself proposed a new deadline of

October 29, 2020, extended the closing date. See Rogaris, 431

Mass. at 835.

Importantly, even if the e-mail exchange had not extended

the closing date, the fact that the Post's attorneys continued

to work on and communicate with the church's attorney regarding

the sale until the beginning of October 2020 effectively waived

the August 14 closing date. See Owen 56 Mass. App. Ct. at 470.

Therefore, even without the August 11 extension, the Post could

not have cancelled the purchase and sale agreement without

giving the church reasonable time to perform in accordance with

its terms. See Church of God in Christ, Inc., 370 Mass at 832-

834 (seller who agreed to open-ended closing date and accepted

regular maintenance payments could not sell to other buyer

without giving original buyer reasonable time to perform).

5
2. The church's ability to perform. The Post argues,

relying on Kanavos v. Hancock Bank & Trust Co., that the church

also was not entitled to summary judgment because the church had

not shown that it would have been ready, willing, and able to

purchase the property by October 29, 2020, the final agreed upon

closing date.4 See 395 Mass. 199, 202 (1985) ("It is the general

rule that when performance under a contract is concurrent, one

party cannot put the other in default unless he is ready, able,

and willing to perform and has manifested this by some offer of

performance" [quotation omitted]). However, the Supreme

Judicial Court in Kavanos held that, "a tender of performance is

not necessary if the other party has shown that he cannot or

will not perform" (quotation omitted). Id. Although the

Supreme Judicial Court further stated that "the financial

ability of a prospective buyer of property is a material issue

in his action for damages against a repudiating defendant for

breach," here, the church was awarded specific performance

rather than contract damages. Id. at 202. Indeed, "[a] final

decree conditioning specific performance upon payment of the

remainder of the purchase price will adequately protect the

4 Namely, the Post contends that the church failed to
establish that it would have finalized a loan to purchase the
property by October 29 and would have acquired a certificate of
occupancy required for closing.

6
defendants' interests in this respect." Limpus v. Armstrong, 3

Mass. App. Ct. 19, 23 (1975), citing Tucker v. Connors, 342

Mass. 376, 383 (1961).5 Therefore, "[t]he absence of a finding

that [the buyer] was or is in fact ready, willing, and able does

not bar specific performance." Limpus, supra at 23.

The Post's October 9, 2020 message and subsequent refusal

to sell the property made it clear that it would not perform.

Because the church received specific performance rather than

contract damages, the church was accordingly excused from any

requirement to show that it was ready, willing, and able to

purchase the property on October 29, 2020. See Kanavos, 395

Mass. at 202; Limpus, 3 Mass. App. Ct. at 23.

3. Statements by the Post's deponent. The Post contends

that the judge erred in relying on deposition testimony by the

5 Although the Supreme Judicial Court in Tucker held that
the buyer in that case should have alleged that he was ready,
willing, and able to purchase the property, it noted that this
requirement was either excused by the seller's refusal to
perform or could be met by minor amendments to the buyer's
pleading. 342 Mass. at 383 (Plaintiff "should have alleged in
his bill his ability and willingness to pay the purchase price,
but this allegation, if not entirely excused by Connors's action
showing that tender would be futile, can but need not be added
now by amendment"). Nevertheless, the church stated in its
verified complaint that "[a]t all relevant times Plaintiff was
and is ready, willing, and able to purchase the Property
pursuant to the terms of the [purchase and sale agreement]."

7
Post's Mass. R. Civ. P. 30 (b) (6) designee,6 characterizing that

deposition testimony as inadmissible hearsay. This contention

is meritless and requires little discussion. Assuming without

deciding that the challenged deposition testimony was

inadmissible, there was independent evidence to that same

effect. Specifically, the authors of the documentary evidence

the church's lawyer presented the deponent were also deposed.

Thus, any error was harmless.

Judgment affirmed.

By the Court (Desmond, Shin &
Walsh, JJ.7),

Clerk

Entered: February 12, 2026.

6 Mass. R. Civ. P. 30 (b) (6) provides that when a party
names a corporation as a deponent in a notice or subpoena, that
corporation must designate a person to testify on the
corporation's behalf.

7 The panelists are listed in order of seniority.

8