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08/23/78 ELIOT LEVY v. RICHARD BENDETSON

August 23, 1978

ELIOT LEVY
v.
RICHARD BENDETSON



Suffolk. Contract. Writ in the Superior Court dated December 28, 1972. The action was heard by Sullivan, J.

Keville, Goodman & Brown, JJ.

SYLLABUS BY THE COURT

Practice, Civil, Appeal. Sale, Rescission, Real estate. Contract, Rescission, Sale of real estate. Deceit. Damages, On rescission. Consumer Protection Act.

The opinion of the court was delivered by: Goodman

Where a clerk failed to set forth on a separate document a judgment as required by Rule 58(a) of the Massachusetts Rules of Civil Procedure, an appeal from the judgment was dismissed. [560-561]

In an action to rescind an agreement for the purchase and sale of an apartment building, the Judge's finding that the amount of "electric and heat" expense set out in a statement prepared by the broker acting for the owner constituted a material misrepresentation on which the purchaser relied in buying the building was not clearly erroneous and warranted rescission of the agreement. [562-565]

In an action to rescind an agreement for the purchase and sale of an apartment building, the Judge's refusal to grant rescission was not justified by his Conclusion that restoration of the status quo was not feasible. [565-566]

Where a plaintiff was not granted any relief in his action under G. L. c. 93A, § 11, he was not entitled to an award of attorneys' fees under that section. [566-567]

This case arises out of the sale of an apartment building in Hyde Park by the plaintiff Eliot Levy to the defendant Richard Bendetson. The sale occurred on June 8, 1972; the purchase price was approximately $320,000. Bendetson paid $6,000 in cash; the remainder was financed by three mortgages, including a purchase money mortgage of $47,883.36 to Levy. About six weeks after the sale Bendetson discontinued his operation of the building, stopped making the payments due on the mortgages, and notified Levy by letter dated July 20, 1972, that he was rescinding the transaction. Levy thereupon reentered the property in late July and commenced foreclosure proceedings on the mortgage which Bendetson had given him as part of the purchase price. A foreclosure sale was held in November, 1972, at which Levy purchased the building for $2,000, subject to the prior mortgages. Subsequently, on December 28, 1972, Levy brought an action for a deficiency in the amount of $48,586.54 on the mortgage note. Bendetson's answer to the plaintiff's declaration was a general denial, and he further alleged, as a defense, that Levy had misrepresented the expenses of operating the building.

Subsequently, Bendetson by leave of court filed a counterclaim alleging misrepresentations by Levy and by Davis & Davis Realty, Inc. (Davis & Davis), the broker in the transaction, and demanding rescission of the sale, including the cancellation and return of the note. In a separate count Bendetson pleaded an action under G. L. c. 93A, § 11, alleging that misrepresentations made by Levy in the course of the negotiations constituted unfair and deceptive practices proscribed by G. L. c. 93A, § 2.

The case was heard by a Judge who made "Findings of Fact and Rulings of Law." He found that Bendetson had relied on misrepresentations contained in a statement of income and expenses for the property furnished by Davis & Davis and authorized by Levy and that Bendetson was therefore entitled to rescind the transaction. The Judge further held that these misrepresentations constituted unfair and deceptive practices under G. L. c. 93A, § 2, and that Bendetson could invoke G. L. c. 93A, § 11 (enacted after the sale; see St. 1972, c. 614, § 2, approved July 9, 1972, and effective ninety days thereafter), retroactively to obtain relief for a violation of c. 93A, § 2. However, since he found that Bendetson was entitled to rescission for misrepresentation, he did not order relief under c. 93A, though he held that Bendetson was entitled to recover attorneys' fees incurred in prosecuting that claim. Finally, he ordered a further hearing "o disentangle prejudicing the rights of Levy or mortgagees not joined as parties." He requested that the parties file affidavits prior to the hearing and stated that "he court will be particularly concerned with the manner in which relief granted may affect the rights of persons not made parties to this action."

After that hearing the Judge issued "Supplementary Findings of Fact and Rulings of Law and Order for Entry of Judgment" in which he refused to grant rescission. As we read the supplementary findings he adhered to his original Conclusion that (as stated in the supplementary findings), "because Levy had made innocent misrepresentations relating to 624 Hyde Park Avenue, Bendetson was entitled to rescind his purchase agreement with Levy." However, he concluded that "he events that have transpired since Levy sold this property to Bendetson have changed the circumstances of the parties and involved innocent strangers to this action in such a fashion as to make rescission an infeasible if not an inequitable result" (footnote omitted). He therefore ruled that Levy was entitled to recover on the note. Upon further consideration of Bendetson's counterclaim under G. L. c. 93A, the Judge found that Bendetson had failed to show damages arising out of Levy's misrepresentations but that the mere proof of the misrepresentations was sufficient to entitle Bendetson to attorneys' fees, which he then awarded in the amount of $3,493.12, to be deducted from Levy's recovery.

He ordered at the end of his "Supplementary Findings of Fact and Rulings of Law, and Order for Entry of Judgment" that "udgment shall be entered accordingly," and the clerk made the docket entry set out in the margin. *fn1 This, however, is not sufficient compliance with Mass.R.Civ.P. 58(a), 365 Mass. 826 (1974). That rule provided that: "Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)." *fn2 Both these conditions must be met if a "judgment" is to provide a basis for an appeal. United States v. Indrelunas, 411 U.S. 216 (1973). Smith & Zobel, Rules Practice §§ 58.5, 58.6 (1977). And this is so whether the judgment is entered directly by the clerk under clause (1) of Rule 58(a) *fn3 or upon approval by the court under clause (2). See also Mass.R.A.P. 18(a), 365 Mass. 864 (1974): "The appellant shall prepare and file an appendix to the briefs which shall contain: . . . (3) the judgment . . . in question." The record contains no such document and therefore no effective judgment. Accordingly, the appeal must be dismissed.

Heretofore we have proceeded to state our views by way of dictum rather than dismiss the appeal without more and leave the appellant to appeal again after he has arranged for the entry of a proper judgment in the lower court. Thus we have considered the merits in Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, 5 Mass. App. Ct. 206, 207-208 (1977), Tisei v. Building Inspector of Marlborough, 5 Mass. App. Ct. 328, 330 (1977), Capodilupo v. Petringa, 5 Mass. App. Ct. 893, 894 (1977), and Swift & Co. v. Superior Pet Products, Inc., 5 Mass. App. Ct. 904 (1977), in which the clerk also failed to comply with the ...


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