United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Patti B. Saris Chief United States District Judge
dispute arises out of a home sale in Foxborough,
Massachusetts. Plaintiffs Gregg and Karin Wade allege that
the home they purchased from Defendant Touchdown Realty
Group, LLC (“Touchdown”) did not comply with
building codes in breach of the purchase agreement and that
Touchdown and Defendant Thomas Clayton falsely represented
that the home was a three-bedroom house, not a two-bedroom
house, and that it was code-compliant. Plaintiffs assert
claims for breach of contract (Count I), breach of the
implied covenant of good faith and fair dealing (Count II),
fraud/fraudulent inducement (Count III), and violations of
Chapter 93A (Count V). They also seek a declaratory judgment
that Touchdown is an alter ego of Clayton (Count IV).
filed a third-party complaint impleading Plaintiffs' real
estate agent, Lisa Paulette, and her employer Commonwealth
Realty Group, LLC (“Commonwealth”), seeking
contribution and indemnification for Counts III and V.
Defendants and Third-Party Defendants have moved for summary
judgment. Defendants also have moved to strike
Plaintiffs' opposition to their motion for summary
hearing, the Court ALLOWS IN PART AND DENIES IN
PART Defendants' motion for summary judgment
(Dkt. No. 100); ALLOWS Third-Party
Defendants' motion for summary judgment (Dkt. No. 110);
and DENIES Defendants' motion to strike
(Dkt. No. 118).
following facts are undisputed except where otherwise stated.
August 2018, Plaintiffs, who were moving from Michigan with
their two children, one of whom is disabled, purchased from
Touchdown the property located at 32 Oak Street, Foxborough,
Massachusetts (“32 Oak Street”). Touchdown is a
Rhode Island limited liability corporation, with its
principal place of business at 12 E. Cottage Street,
Smithfield, Rhode Island. Touchdown is in the business of
buying and renovating residential real estate for resale.
Clayton's wife, Kelly Clayton, is Touchdown's sales
manager and sole shareholder. The company address is also the
Claytons' home address in Rhode Island.
a former professional football player, is a vice president of
Better Living Real Estate, LLC (“Better Living”).
He is a licensed home improvement contractor and real estate
agent who sometimes oversees the renovation, and brokers the
sales, of properties owned by Touchdown.
is a foreign limited liability corporation registered to do
business in Massachusetts, and doing business under the trade
name Century 21 Commonwealth (“Century 21”).
Paulette is a real estate agent who works for Century 21.
Paulette served as Plaintiffs' real estate agent in
connection with their purchase of 32 Oak Street.
32 Oak Street
purchased 32 Oak Street on April 6, 2016. At that time, it
was listed as a three-bedroom home; it had historically been
taxed as a three-bedroom home; and the Title V report
referred to it as a three-bedroom home. Touchdown began
renovations on 32 Oak Street shortly after the purchase.
Julian Lewis was the general contractor responsible for the
renovations. Clayton was involved in overseeing the
renovations, but the parties dispute the extent of his
were granted a permit by the Town of Foxborough for the
renovations. The permit did not authorize any electrical or
plumbing work. The parties hotly dispute the extent of the
renovations performed by Touchdown and whether these
renovations were consistent with the applicable building
codes. On August 15, 2016, the Town of Foxborough building
inspector, Thomas Wrynn, sent a letter to Clayton notifying
him that Touchdown was in violation of the town's
building codes because it failed to pull plumbing and
electrical permits as part of the initial renovation of 32
Oak Street. Defendants subsequently hired a plumber, Mark
Mason, and an electrician, Erik Wilkinson, to perform
additional work on 32 Oak Street. Mason and Wilkinson pulled
permits for the additional work they performed.
addition to renovating the interior of 32 Oak Street,
Touchdown installed a new distribution box and a 1500-gallon
tank for the septic system. Even with this upgrade, 32 Oak
Street's septic system only supported a two-bedroom home.
Accordingly, the Town of Foxborough required Touchdown to
record a deed restriction which limited the use of 32 Oak
Street to two bedrooms. That deed restriction was recorded on
July 15, 2016. Clayton requested the Town of Foxborough to
treat the property as a three-bedroom dwelling, but the Town
repeatedly told him that it could only be used as a
two-bedroom dwelling. Clayton claims that he always
understood that 32 Oak Street could be used as a
three-bedroom dwelling, notwithstanding the deed restriction.
Sale of 32 Oak Street
began working with Paulette in their housing search in July
2016. Plaintiffs were looking specifically for a
three-bedroom home. Touchdown first listed 32 Oak Street for
sale on July 18, 2016. The listing for the property claimed
it was a three-bedroom house but also disclosed that it was a
“[c]urrent design two bed.” Dkt. No. 105 (MLS
Listing) at 2. On July 21, 2016, after seeing the listing for
32 Oak Street, Paulette contacted Clayton by email. Paulette
asked Clayton whether he could “explain the 2 bedroom
septic system for a 3 bedroom house.” Dkt. No. 105-2
(July 21, 2016 Email) at 2. Clayton responded that “the
house is obviously a 3 bed dwelling” but “the
septic design is grandfathered in as 2 bedroom design.”
Id. at 3. Paulette subsequently forwarded this email
chain to Plaintiffs.
22, 2016, Plaintiffs submitted an offer to purchase 32 Oak
Street, which Touchdown accepted. Plaintiffs subsequently
received a copy of the appraisal report for 32 Oak Street
which indicated that it was a two-bedroom dwelling. Attached
to that appraisal report was a copy of the deed ...