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15-P-19                                                 Appeals Court

  SCOTT GODDARD      vs.    RICHARD E. GOUCHER, trustee,1 & another.2


                                No. 15-P-19.

        Plymouth.          December 1, 2015. - February 2, 2016.

          Present:    Kafker, C.J., Milkey, & Sullivan, JJ.


Real Property, Purchase and sale agreement. Contract, Sale of
     real estate, What constitutes. Practice, Civil,
     Stipulation, Findings by judge. Evidence, Credibility of
     witness, Best and secondary. Witness, Credibility.



     Civil action commenced in the Superior Court Department on
October 25, 2011.

    The case was heard by Robert J. Kane, J.


     Isaac H. Peres (Richard W. Bland, II, with him) for the
plaintiff.
     John D. Finnegan for town of Dover.


    KAFKER, C.J.      The plaintiff, Scott Goddard, appeals from a

judgment entered against him following a jury-waived trial in


    1
       Of Salt Marsh Farm Trust. Richard Goucher did not file a
brief or otherwise participate in this appeal.
    2
        Town of Dover, intervener.
                                                                     2


the Superior Court on his complaint seeking enforcement of a

2007 purchase and sale agreement.    The two issues on appeal are

(1) whether the trial judge erred in concluding that Goddard and

the defendant Richard Goucher failed to enter into a valid and

enforceable purchase and sale agreement despite a pretrial

stipulation regarding the contractual negotiations and their

legal consequences, and (2) whether the trial judge erred in

declining to admit secondary evidence of the purchase and sale

agreement, in violation of the best evidence rule.     We conclude

that the judge correctly distinguished the factual elements from

the legal elements in the stipulation.     We further discern no

error in his additional findings of fact and legal analysis

regarding the validity of the purchase and sale agreement or in

his weighing of the secondary evidence pursuant to the best

evidence rule.   We therefore affirm the judgment.

     Background.   The trial judge made extensive findings of

fact, which we summarize below.     Richard Goucher's mother,

Barbara B. Goucher,3 owned property located on Wilsondale Street

(property) in Dover (town).   In 2004, Barbara conveyed the

property to herself as trustee of the Salt Marsh Farm Trust and

executed a durable power of attorney naming Richard as her agent

and attorney-in-fact.   Barbara and Richard attempted to sell the

     3
       Because Richard Goucher and his mother, Barbara Goucher,
share a surname, we will refer to them hereafter by their first
names to avoid confusion.
                                                                   3


property, and in January, 2007, an interested party made an

offer.4   Because of various wetlands on the property, Richard

assembled a team, including Goddard, an environmental engineer,

and Attorney Vincent O'Brien, to develop a proposal for

potential permitting.   After the interested party withdrew his

offer, Richard offered Goddard the property for one dollar plus

the payment of back real estate taxes.

     Goddard was interested in Richard's offer and in May, 2007,

asked O'Brien to draft a purchase and sale agreement for the

property (the agreement).   Paragraph 7 of the agreement

contained a provision setting forth the purchase price of one

dollar.   Paragraph 8 provided for delivery of the deed at 10:00

A.M. on an unspecified date in June, 2007, and contained a

declaration that "time is of the essence of this agreement."

The agreement provided that the closing date could be extended

for a period of not more than thirty days.   Goddard signed the

agreement and, through O'Brien, sent the draft to Richard.     June

and July passed without a closing.   During that time, Richard

sent the agreement to Attorney Lawrence Hale for his review.

Hale, an experienced real estate attorney, made a number of


     4
       By the time of the offer, Barbara was incapacitated and
Richard was acting on her behalf. Barbara died in 2010. After
the complaint and answer were filed in this case, Richard filed
a suggestion of death as to Barbara, and his motion to be
substituted as the defendant trustee of Salt Marsh Farm Trust
was allowed.
                                                                   4


handwritten amendments to the draft agreement, including adding

language in multiple provisions making clear that Goddard, as

the buyer, agreed to assume "any [and] all encumbrances of

record or otherwise" as well as "[a]ny and all past, present,

and future taxes" without adjustment.   Richard, as attorney-in-

fact for Barbara, signed the amended agreement and it was sent

back to Goddard.5   O’Brien conducted a title search on the

property on Goddard's behalf.

     The remaining facts were less clear and more contested.     As

later found by the judge based on his credibility

determinations, the amendments Hale made to the agreement

"caused Goddard, after consultation with O'Brien, to forego

signing the amended Purchase and Sale agreement."   In making

this finding, the judge explicitly rejected "testimony

indicating that this revised purchase and sale document was

accepted and converted into a clean copy, which then with a $1

check, deed and trust was mailed out of Attorney O'Brien's

office to Attorney Hale."

     In the meantime, the real estate taxes on the property went

unpaid, and on January 29, 2008, the town, through its tax

collector, sent notice to Barbara, as trustee of Salt Marsh Farm


     5
       The judge did not make a finding regarding the date on
which the agreement was signed by Richard and sent back to
Goddard. Goddard testified that the agreement was received in
early August, 2007.
                                                                      5


Trust, that $8,107.96 was due and owing.     On March 11, 2008, the

town recorded a tax taking of the property in the Norfolk County

registry of deeds.     The town subsequently filed an action in the

Land Court, and on February 4, 2009, judgment entered

foreclosing and barring all rights of redemption as to the

property.

    On January 29, 2010, Goddard filed with the Land Court a

petition to vacate the judgment of foreclosure, asserting that

he had standing as buyer under the agreement.     On June 4, 2010,

the Land Court denied the petition, finding that Goddard held no

interest in the property and therefore did not have standing to

petition the Land Court under G. L. c. 60, § 69A.     Goddard

appealed, and this court vacated the order and remanded the case

to the Land Court to determine the validity of and rights

conferred by the agreement.     See Dover v. Goddard, 80 Mass. App.

Ct. 1103 (2011).     On November 15, 2011, the Land Court granted

Goddard's petition to stay proceedings pending the outcome of

the action Goddard had filed in Superior Court.

    Goddard's Superior Court complaint named Richard and

Barbara as defendants and alleged breach of contract against

them (Count I), sought a declaration that the agreement was a

valid and enforceable contract (Count II), and requested

specific performance of the agreement through an order that

Barbara and Richard obtain valid title from the town and convey
                                                                     6


the property to Goddard (Count III).6   The town filed a motion to

intervene in order to protect its interests as the owner of the

property.    The motion was allowed, and the town filed an answer

containing cross claims and counterclaims.7   Goddard, Richard,

and the town entered into a pretrial stipulation that stated:

"The purchase and sale Agreement . . . dated May 2007, signed by

Scott Goddard and Richard Goucher as attorney-in-fact for

Barbara B. Goucher, trustee of the Salt Marsh Farm Trust was a

valid and enforceable contract at the time it was entered into

by the parties."8   The trial judge concluded otherwise, expressly

determining that the "revised purchase and sale agreement . . .

never progressed from imperfect negotiations into an enforceable

contract."   He also found no waiver of the "time is of the

essence" provision.    Judgment entered against Goddard on his

complaint, and he filed a timely appeal.

     Standard of review.    It is well established that on appeal,

we are bound by the trial judge's findings of fact, including


     6
       Goddard's complaint also alleged inducement to enter into
a contract by false pretenses (Count IV) and unfair and
deceptive practices in violation of G. L. c. 93A (Count V), but
these counts were voluntarily dismissed prior to trial.
     7
       The Superior Court judgment dismissed the town's
counterclaims and cross claims, and the town has not appealed.
     8
       The parties also stipulated that "[i]f the Court finds
that the Defendant breached the terms of the [agreement],
Plaintiff is not entitled to, and shall not be awarded any
monetary damages."
                                                                      7


all reasonable inferences, that are supported by the evidence.

Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445

Mass. 411, 420 (2005).    T.W. Nickerson, Inc. v. Fleet Natl.

Bank, 456 Mass 562, 569 (2010).    Such findings will only be set

aside if clearly erroneous.    Mass.R.Civ.P. 52(a), as amended,

423 Mass. 1402 (1996).    "The judge's legal conclusions are

reviewed de novo."   Anastos v. Sable, 443 Mass. 146, 149 (2004).

    Discussion.   1.     The purchase and sale agreement.   Goddard

argues that the trial judge's finding that "the parties failed

to establish a valid and enforceable agreement to convey the

. . . property" was clearly erroneous because it directly

contradicted the parties' pretrial stipulation to the contrary.

He contends that the trial judge "simply ignored" the

stipulation.   We disagree.

    The stipulation at issue is one of both fact and law.       The

judge properly distinguished the factual components from the

legal components of the stipulation and addressed each

accordingly.   He acknowledged and adopted undisputed stipulated

facts.   He also addressed and resolved factual disputes and gaps

glossed over by the stipulation.    Finally, he disregarded the

legal aspects of the stipulation, particularly the incorrect and

self-serving legal analysis proposed by the parties.

    There is, of course, a significant difference between

factual and legal stipulations.    "Nothing is more common in
                                                                      8


practice or more useful in dispatching the business of the

courts than for counsel to admit undisputed facts."      Brocklesby

v. Newton, 294 Mass. 41, 43 (1936).   Generally, such

stipulations are binding on the parties, see Kalika v. Munro,

323 Mass. 542, 543 (1948), and respected by the courts, unless a

court determines that to do so would be "improvident or not

conducive to justice."   Loring v. Mercier, 318 Mass. 599, 601

(1945).   See Huard v. Forest St. Hous., Inc., 366 Mass. 203,

208-209 (1974) (stipulation that omitted "seemingly significant

information" set aside and matter remanded to trial court);

Stuart v. Brookline, 412 Mass. 251, 254-255 (1992) (statement of

agreed facts was binding where party failed to show that facts

were "omitted, misstated or inadvertently included").      See

generally Mass. G. Evid. § 611(g)(1) (2015).

    In contrast, stipulations regarding "the legal effect of

admitted facts" require a different consideration "since the

court cannot be controlled by agreement of counsel on a

subsidiary question of law."   Swift & Co. v. Hocking Valley Ry.

Co., 243 U.S. 281, 289 (1917).   "Parties may not stipulate to

the legal conclusions to be reached by the court."      Texas

Instruments Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st

Cir. 1995), quoting from Saviano v. Commissioner of Int. Rev.,

765 F.2d 643, 645 (7th Cir. 1985).    "Issues of law are the

province of courts, not of parties to a lawsuit, individuals
                                                                      9


whose legal conclusions may be tainted by self-interest."      Ibid.

We therefore do not hold ourselves "bound to accept, as

controlling, stipulations as to questions of law."    Estate of

Sanford v. Commissioner of Int. Rev., 308 U.S. 39, 51 (1939).9

     With these distinctions in mind, we turn to the particular

stipulation at issue and the judge's findings of fact and legal

analysis related thereto.   As previously noted, the stipulation

provided:   "The purchase and sale Agreement dated May, 2007,

signed by Scott Goddard and Richard Goucher as attorney-in-fact

for Barbara Goucher was a valid and enforceable contract at the

time it was entered into by the parties."    As formulated, the

stipulation contains undisputed facts, substantial gaps

requiring further factual findings, and legal conclusions.      The

trial judge dealt with each appropriately.    The undisputed

stipulated facts are that both parties signed the agreement, as


     9
       See, e.g., Case v. Los Angeles Lumber Prods. Co., 308 U.S.
106, 114 (1939) (court not bound by legal stipulation that
corporate reorganization plan was "fair and equitable"); Estate
of Sanford, supra at 50-51 (court not bound by stipulated
definition of administrative practice involving conclusions of
law); Texas Instruments Fed. Credit Union, supra (stipulation
that Federal credit unions were government units was an issue of
law to which the court was not bound); Warner v. Mayor of
Taunton, 253 Mass. 116, 118 (1925) (court not bound by parties'
stipulation regarding jurisdiction over case); Clifford v.
School Comm. of Lynn, 275 Mass. 258, 259 (1931) (court not bound
by parties' stipulation that writ of mandamus should issue).
See also Dodson, Party Subordinance in Federal Litigation, 83
Geo. Wash. L. Rev. 1, 13-32 (2014) (discussing stipulations and
how courts generally retain discretion to disregard or override
party choice).
                                                                   10


Goddard undisputedly signed the original version prepared by

O'Brien and Goucher signed the version containing the

handwritten amendments made by Hale, which made significant

changes to the agreement.   The trial judge correctly understood

that the stipulation did not state that the parties both signed

the same version of the agreement.10   The judge recognized that

these facts remained unaddressed and unresolved in the

stipulation and were necessary to determine whether the parties

had entered into a valid and enforceable contract.

     The trial judge properly concluded that he was not bound by

the remainder of the stipulation providing that the agreement

"was a valid and enforceable contract at that time it was

entered into by the parties."11   This was a stipulation of law

seeking to bind the court regarding the legal effect of the

admitted facts.   See Swift & Co. v. Hocking Valley Ry. Co., 243

U.S. at 289.   The judge was not, nor are we, bound to accept as

controlling stipulations on questions of law, particularly where

they are based on incomplete and misleading facts and an



     10
       Even Goddard testified that the clean version
incorporating Hale's amendments that O'Brien allegedly sent to
Hale was unsigned.
     11
       We also note that the phrase "at the time it was entered
into" is left unclear. It could mean May, 2007, when the
original agreement was drafted, or August, 2007, when Hale
purportedly mailed Goddard the amended agreement, or yet another
date.
                                                                     11


incorrect application of legal principles.12    See ibid.    Those

stipulations were also self-serving.     See Texas Instruments Fed.

Credit Union v. DelBonis, 72 F.3d at 928.     This becomes

particularly clear when the second pretrial stipulation

regarding damages is considered.     The additional stipulation

indemnified Richard and any of his beneficiaries, successors,

assigns, or heirs from any monetary damages in the event that

the court found Richard breached the terms of the agreement.

     Having properly rejected the legal stipulation, the judge

undertook his own fact finding and analysis of the agreement.

We discern no error in either.     "It is axiomatic that to create

an enforceable contract, there must be agreement between the

parties on the material terms of that contract, and the parties

must have a present intention to be bound by that agreement."

Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878

(2000).   In the instant case, there were numerous additional

questions to be resolved by the trial judge to determine if an


     12
       It would have been preferable for the judge to have
expressly notified the parties at trial that he was considering
disregarding the stipulation. Compare White v. Peabody Constr.
Co., 386 Mass. 121, 127 (1982) (notice of judge's decision to
convert party's 12[b][6] motion into rule 56 motion for summary
judgment prevents party surprise). However, the gaps,
contradictions, and questionable legal conclusions reflected
therein should have put the parties on notice that the
stipulation would not be dispositive. Moreover, Goddard has not
articulated how the proof he offered at trial would have been
any different. In our view, the judge was well within his
authority to reject this highly problematic stipulation of law.
                                                                  12


agreement had been reached, including whether Goddard agreed to

the amendments sent back by Goucher, and whether Goddard

communicated any such assent to Goucher.   The judge found that

he did not.

     Rather, on the basis of witness credibility determinations,

the judge found that the handwritten amendments Hale made to the

agreement "caused Goddard, after consultation with O'Brien, to

forego signing the amended Purchase and Sale Agreement."   The

judge expressly rejected testimony to the effect that a clean

version of the agreement incorporating Hale's amendments, along

with a check for the one dollar consideration, and a deed and

trust were sent, and he concluded that the transaction was never

completed.13

     It is not for us to decide who we might find more credible

but rather who the trial judge, with the advantage of seeing and

hearing the witnesses, found to be more credible.   See Goddard

v. Dupree, 322 Mass. 247, 248 (1948) ("The value of the


     13
       We also note that the version with Hale's handwritten
amendments does not appear to have been sent back until after
the May agreement had expired by its own terms. The judge
expressly found that the sale did not close in June or July, and
the "time is of the essence" clause was not waived by either of
the parties. The alleged preparation of the clean version and
any subsequent negotiations therefore occurred even further
after the sixty-day deadline provided in the May, 2007,
agreement. Nonetheless, because we discern no error in the trial
judge's findings and ultimate conclusion that negotiations never
progressed into a valid and enforceable agreement, we need not
rely on the alternative theory of expiration and discharge.
                                                                    13


testimony of the witnesses depended in great measure upon their

appearance and their manner of testifying on the stand").      In

finding that Goddard refused to accept the amended agreement,

the judge concluded that the proposed agreement "never

progressed from imperfect negotiations into an enforceable

contract."   See Rosenfield v. United States Trust Co., 290 Mass.

210, 217 (1935).   Because the judge's findings are supported by

a reasonable view of the evidence, and the rational inferences

drawn therefrom, we discern no error in his finding that there

was no valid and enforceable agreement for the property.     See

Goddard v. Dupree, supra; Capitol Bank & Trust Co. v. Richman,

19 Mass. App. Ct. 515, 519 (1985); Mass.R.Civ.P. 52(a).

    2.   Best evidence rule.   At the start of trial, the judge

heard arguments on the town's motion in limine to exclude, based

on the best evidence rule, the following documents:   (1) an

unsigned computer print-out of a letter dated September 4, 2007,

on plain paper, allegedly sent by O'Brien, to Hale, referencing

two copies of an amended agreement "with the incorporated

suggestions from your redraft and our telephone conversation," a

proposed deed, a copy of a proposed realty trust, and a check

made payable to Barbara, and (2) a check notation indicating a

one dollar check dated September 5, 2007, referencing O'Brien

and Barbara, as trustee.   The judge admitted this evidence de

bene during trial and reserved his ruling for his decision.
                                                                   14


    Goddard argues that the trial judge erroneously excluded

the unsigned letter from O'Brien to Hale based on the best

evidence rule.   The best evidence rule requires, "as a threshold

matter," that the proponent "offer evidence sufficient to

warrant a finding that the original [writing] once existed."

Commonwealth v. Ocasio, 434 Mass. 1, 6 (2001).     "If the evidence

warrants such a finding, the judge must assume its existence,

and then determine if the 'original had become unavailable,

otherwise than through the serious fault of the proponent . . .

and that reasonable search had been made for it.'"     Id. at 7,

quoting from Fauci v. Mulready, 337 Mass. 532, 540 (1958).      See

Mass. G. Evid. § 1004.   If the judge finds in favor of the

proponent on the sufficiency and fault questions, then the judge

must allow the secondary evidence to be admitted to establish

the contents of the writing at issue.   Fauci, supra at 540.    It

is then up to the fact finder to determine what, if any, weight

to give to the secondary evidence.   See Buker v. Melanson, 8

Mass. App. Ct. 325, 331 (1979).   In the instant jury-waived

case, the judge was therefore responsible for determining both

the admissibility of the unsigned letter and check evidence and

the weight to give them in his findings of fact.

    As an initial matter, we presume that the judge correctly

instructed himself on the admissibility of evidence.    See

Cummings v. National Shawmut Bank of Boston, 284 Mass. 563, 568
                                                                  15


(1933).   Although the judge did not expressly so state, he

appears to have found that there was sufficient evidence to

warrant a finding that the original letter, revised agreement,

and check existed at some point in time and that they were

unavailable through no fault of Goddard.    See Commonwealth v.

Ocasio, supra.   He then "reject[ed] [Goddard's] evidence that

the letter, redrafted purchase and sale agreement, and check

were mailed to Attorney Hale."   This determination was based on

the judge's credibility findings, particularly his findings that

Hale was credible on the question and O'Brien was not.14   See

Mass. G. Evid. § 104.   The judge wrote:   "Though, the court

possesses authority to determine that a mailing occurred on the

basis of habit evidence, this court declines in the instant case

to find persuasive proof that a habit was followed."    In his

weighing of the evidence, he also noted gaps and discrepancies

between this evidence and other evidence presented at trial.15



     14
       Hale testified that, upon careful review of his records,
he could not find, nor did he remember receiving, a signed,
amended agreement or any closing documents. Hale also denied
having any conversations with O'Brien about a pending closing
for sale of the property. In addition to Hale's testimony,
there was extensive testimony from Richard indicating that he
did not receive any communication from Hale regarding a closing
or any correspondence from Goddard related to the deed.
     15
       Specifically, the judge noted "the following gaps and
discrepancies: (1) different dates on the check receipts
compared to the letter; (2) the absence of any copy of the
amended purchase and sale agreement; and (3) Goddard's and
                                                                  16


Finally, as previously explained, it was well within the

province of the judge's role as fact finder in this jury-waived

trial to determine the ultimate credibility to assign to the

secondary evidence presented.   See Buker v. Melanson, supra.   It

was for the judge to weigh the evidence and assess credibility.

                                    Judgment affirmed.




O'Brien's different recollections on the closing date in the so
called 'clean copy.'"
