Haitian Nazarene Church of Malden v. Imani Temple, Inc.

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

22-P-882

HAITIAN NAZARENE CHURCH OF MALDEN

vs.

IMANI TEMPLE, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case concerns a purchase and sale agreement under

which the defendant, Imani Temple, Inc. (Imani), had agreed to

sell real estate to the plaintiff, Haitian Nazarene Church of

Malden (Haitian Nazarene). After a trial, the jury returned a

verdict for Haitian Nazarene on the special question of whether

Imani had repudiated and thus breached the contract. Imani

appeals from the denial of its motion for a new trial, in which

Imani argued that the jury verdict was against the weight of the

evidence. Repudiation is a definite and unequivocal

manifestation of intention not to perform one's obligations

under a contract. See Coviello v. Richardson, 76 Mass. App. Ct.

603, 609 (2010). There was abundant evidence at trial from

which a jury could find that Imani clearly and unequivocally

communicated that it would not move forward with the sale of the
real property at issue, to wit: prior to the agreed upon

closing date, Imani's agent sent an e-mail message explicitly

stating that Imani would not move forward with the sale, and

Imani's representatives did not appear for the closing. Because

the record plainly supports the jury verdict, the judge did not

abuse his discretion in denying the defendant's motion.

Accordingly, we affirm.

Background. On December 22, 2016, Haitian Nazarene and

Imani entered into a written purchase and sale agreement (the

agreement) for the purchase and sale of 264 Salem Street,

Malden, Massachusetts (the property). The agreement was signed

by Leslie Philippe, an associate pastor and the secretary of

Haitian Nazarene, and Reba Danastorg, treasurer of Imani. Under

the agreement, Haitian Nazarene agreed to purchase, and Imani

agreed to sell the property for $500,000, with the closing to

occur on October 31, 2017, at 11:00 A.M. Upon execution,

Haitian Nazarene delivered a $15,000 deposit to Imani.

The purchase and sale agreement also required Haitian

Nazarene to "use diligent efforts to obtain a written

unconditional commitment for mortgage financing in the amount of

$350,000 at prevailing rates, terms and conditions by September

15, 2017." Haitian Nazarene approached Leader Bank to secure

the mortgage financing, and in furtherance of those efforts an

appraiser asked Imani to provide access to the property prior to

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September 15, 2017. Imani, however, initially refused to allow

the appraiser access to the building; it relented and allowed

the appraiser to enter the premises only after Haitian Nazarene

commenced a legal action to compel access. On September 20,

before Imani had allowed the appraiser to access the building,

Danastorg sent a letter to Haitian Nazarene's attorney in which

she stated Imani's position that Haitian Nazarene had

"materially breached" the contract because Haitian Nazarene had

failed to obtain the required mortgage commitment by September

15, 2017. Danastorg reiterated Imani's position in an October

6, 2017 e-mail message to an attorney representing Leader Bank

in connection with the sale of the property. The October 6 e-

mail message contained the following statement: "We are not

moving forward with this sale and have notified counsel for the

Nazarene church" (emphasis omitted).

As of the originally agreed upon closing date of October

31, 2017, Haitian Nazarene Church had received a $350,000

commitment letter dated October 17, 2017, from Leader Bank, and

had sufficient funds in its savings account at Leader Bank to

finance the remaining $135,000 of the purchase price.

Representatives of Haitian Nazarene appeared at the registry of

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deeds on October 31, 2017, to close the transaction, but Imani's

representatives did not appear.1

Haitian Nazarene sued Imani for breach of contract, seeking

specific performance. At trial, the jury was presented with

special questions, and returned a verdict for Haitian Nazarene

on the first question -- finding that Imani had repudiated the

contract. The judge ordered specific performance of the

contract. Imani thereafter filed a motion for a new trial,

which the judge denied. This appeal followed.

Discussion. We review the denial of a motion for a new

trial for an abuse of discretion. See Commonwealth v.

Sperrazza, 399 Mass. 1001, 1002 (1987). We afford particular

deference when, as here, the motion judge is also the trial

judge. See Commonwealth v. Bowie, 25 Mass. App. Ct. 70, 84

(1987) (a judge may deploy their "knowledge of what occurred at

trial"). When deciding a motion for a new trial, the motion

judge may set aside the jury verdict if it is against the great

1 Despite Imani's September 20 and October 6 statements that it
would not go through with the sale, the parties met on October
23, 2017, at which time the parties considered a written
document that would have extended the closing date to December
6, 2017. Although at some point, Danastorg purported to sign
the written extension on behalf of Imani, Danastorg inserted an
additional term -- that the extension was contingent on Imani's
"relocation of place.". Haitian Nazarene did not agree to the
added contingency and accordingly refused to sign the document.
The proposed document thus was not agreed to by both parties,
and on appeal Imani has not raised an argument based upon any
alleged extension of the closing date.
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weight of the evidence, such that allowing it to stand would

constitute a miscarriage of justice. Wojcicki v. Caragher, 447

Mass. 200, 216 (2006), quoting Spiller v. Metropolitan Transit

Auth., 348 Mass. 576, 580 (1965).

The question before us, accordingly, is whether the motion

judge abused his discretion when he denied the motion for new

trial, concluding that "the trial evidence supported the jury's

verdict" that Imani repudiated, and thus breached, the purchase

and sale agreement. Repudiation "is a material breach, and

'[i]n order to operate as a discharge of the other party, the

repudiation must be either with respect to the entire

performance that was promised or with respect to so material a

part of it as to go to the essence.'" Coviello, 76 Mass. App.

Ct. at 609, quoting Bucciero v. Drinkwater, 13 Mass. App. Ct.

551, 555 (1982). Repudiation by one party relieves the other

party of the obligation to further perform, as long as the

party's actions amount to "a definite and unequivocal

manifestation of intention [not to render performance]." Id.,

quoting Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1178 (1st

Cir. 1996).

The trial record abundantly supports the jury's finding

that Imani repudiated the agreement. First, Danastorg's October

6 e-mail message was a clear and unambiguous statement that

Imani did not intend to move forward with the sale of the

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property. This statement constituted a repudiation of the

entirety of Imani's contemplated performance under the

agreement. Second, Imani's representatives did not appear on

the agreed-upon closing date of October 31, 2017. Coupled with

the unambiguous assertion in the October 6 e-mail message that

Imani would not follow through with the sale, failure to attend

the closing plainly indicates repudiation, supporting the jury's

finding. See Bucciero, 13 Mass. App. Ct. at 556 (failure to

appear on the agreed upon closing date "clearly manifested [the

party's] refusal to perform the agreement").

Imani argues on appeal that its decision to refuse to go

forward was justified because Haitian Nazarene was the first

party to materially breach the agreement, when Haitian Nazarene

failed to provide written confirmation of mortgage financing by

September 15, 2017. The weakness of this argument is exposed by

the statements of Imani's own lawyer during closing argument at

trial, when he conceded that Danastorg erred, under the

circumstances, in assuming that the contract was at an end when

Haitian Nazarene did not provide confirmation of financing by

the original deadline.

But in any event, there was more than sufficient evidence

to support the jury's conclusion that Haitian Nazarene did not

breach the contract, and indeed was "ready, willing, and able to

perform its part of the contract." While it is true that the

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mortgage commitment was not secured as of September 15, Imani's

brief fails to mention the evidence that Imani's own actions

prevented Haitian Nazarene from meeting that September 15

deadline. A party "who prevents the performance of a contract

cannot take advantage of its nonperformance." Winchester

Gables, Inc. v. Host Marriott Corp., 70 Mass. App. Ct. 585, 596

(2007), quoting Frank Fitzgerald, Inc. v. Pacella Bros., Inc., 2

Mass. App. Ct. 240, 242 (1974). See Lobosco v. Donovan, 30

Mass. App. Ct. 53, 56 (1991) ("it is fundamental that a promisor

may not avoid his promised performance based on the

nonoccurrence of a condition, where the promisor has himself

hindered or prevented its occurrence"). That is what happened

here -- at least, the jury could reasonably so find -- when

Danastorg refused to admit the appraiser to the property and

thereby delayed Haitian Nazarene in obtaining a financing

commitment prior to September 15.2 Moreover, Haitian Nazarene

proved that it had the necessary funds, in the form of cash and

a mortgage commitment, to pay the purchase price as of the

assigned closing date. Under those circumstances, the

factfinder was free to conclude that Haitian Nazarene had not

2 Imani's position was weaker still, because the provision at
issue only required Haitian Nazarene to "use diligent efforts"
to secure financing. Imani points to no evidence that Haitian
Nazarene was not acting diligently.
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materially breached, and that Imani was not justified in

refusing to honor its side of the bargain.

Because we find that the evidence amply supports the jury's

verdict, the judge did not abuse his discretion in denying Imani

Temple's motion for a new trial.3,4

3 Imani also argues that the Superior Court judge's handwritten
endorsement denying its motion for a new trial is "insufficient
for meaningful appellate review." While brief, the judge's
endorsement conveys his reasonable conclusion that the evidence
presented at trial supported the jury's verdict. While further
findings are appreciated, there was no error here, particularly
"where the ultimate conclusion is clearly evident from the
record." Commonwealth v. Melo, 95 Mass. App. Ct. 257, 263
(2019), quoting Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2
(1984). Absent "contrary findings the denial of the motion
'imports a finding of all subsidiary facts necessary to justify
the action taken.'" Johnson v. Johnson, 300 Mass. 24, 28
(1938), quoting Trade Mut. Liab. Ins. Co. v. Peters, 291 Mass.
79, 85 (1935).
4 Haitian Nazarene requests an award of appellate attorney's

fees, citing, among other grounds, Mass. R. A. P. 25, as
appearing in 481 Mass. 1654 (2019). In our discretion, we grant
the request for attorney's fees under Mass. R. A. P. 25, which
provides for an award of fees "[i]f an appellate court
determines that an appeal in a civil case is frivolous." An
appeal is "frivolous" "where there can be no reasonable
expectation of a reversal under well-settled law." Dacey v.
Burgess, 491 Mass. 311, 319 (2023), quoting Abuzahra v.
Cambridge, 486 Mass. 818, 829 (2021). We agree with Haitian
Nazarene that Imani's brief fails to advance any reasonable
arguments for reversing the trial court judge's denial of
Imani's motion for a new trial. Haitian Nazarene shall file
with this court and serve on Imani a submission detailing and
supporting the amount of its attorney's fees and costs incurred
on appeal, in accordance with the procedure described in Fabre
v. Walton, 441 Mass. 9, 10-11 (2004).
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Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Vuono, Singh &
Englander, JJ.5),

Clerk

Entered: October 19, 2023.

5 The panelists are listed in order of seniority.
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