K.G.M. Custom Homes, Inc. v. Prosky, et al. (Lawyers Weekly No. 10-091-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11449 K.G.M. CUSTOM HOMES, INC. vs. STEPHEN J. PROSKY & others.[1] Bristol. February 4, 2014. ‑ May 29, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Contract, Sale of real estate, Performance and breach, Implied covenant of good faith and fair dealing, Damages, Specific performance, Provision for liquidated damages. Real Property, Sale, Purchase and sale agreement, Specific performance. Damages, Breach of contract, Liquidated damages, Attorney’s fees. Practice, Civil, Election of remedies, Attorney’s fees. Civil action commenced in the Superior Court Department on December 21, 2004. The case was heard by Thomas F. McGuire, Jr., J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Michelle N. O’Brien for the plaintiff. Edmund A. Allcock (Haley Byron with him) for the defendants. CORDY, J. On October 12, 1999, the defendants, Stephen J. Prosky, Karen Monteiro, and Joan Stormo (Proskys),[2] executed a purchase and sale agreement with the plaintiff, K.G.M. Custom Homes, Inc. (K.G.M.). The Proskys agreed to sell approximately 45.7 acres of land in Norton to K.G.M. for the purpose of developing residential homes, with the price to be determined by the number of “approved and permitted buildable house lot[s],” and the closing set for twenty-one days “after all final approvals are granted and the expiration of any and all appeal periods.” In or about August, 2004, after a five-year process, during which time K.G.M. worked to gain approval for its development plan, and after a dispute over the calculated sale price, Peter T. Clark, the Proskys’ attorney, falsely told one of K.G.M.’s attorneys that the Proskys had received a higher offer for the property and informed him that K.G.M. should calculate its damages based on the liquidated damages provision of the purchase and sale agreement. K.G.M. filed suit for specific performance. While the suit was pending, K.G.M. received final approval for its plan, and the parties met at the office of K.G.M.’s real estate attorney, Henry J. Sousa, Jr., in an attempt to close on the sale of the property. Due to Clark’s withholding of information in the days leading up to the closing, as well as his behavior at the closing, the parties were unable to close the sale. After a jury-waived trial, a Superior […]