S. Brainsky, Esq.; Michael L. Mineau, Esq.; Joseph R. Daigle,
matter comes before the Court for decision after a three-day
bench trial based on the competing specific performance
claims of Francisco Cruz (Mr. Cruz), one prospective buyer,
and KSM Realty, LLC (KSM), the other prospective buyer, as
against 30 Route 6, LLC (30R6) and Brian Sadler (Seller),
sole member and manager of 30R6. Both Mr. Cruz and KSM
contend that they are entitled to real property located at 30
Highland Avenue in East Providence, Rhode Island (Property)
based on separate purchase and sales agreements they had
entered with Seller at different times. The parties have
stipulated that if Mr. Cruz is not entitled to specific
performance, an order should enter allowing KSM to purchase
dispute arises out of Mr. Cruz's attempts to purchase and
develop the Property into a "Tommy Car
Wash." Trial Tr. 181:21-25, 183:23-184:8, Apr.
24, 2019. On May 11, 2018, Mr. Cruz and his real estate
broker, Jeffrey Mateus (Mr. Mateus) of Mateus Realty,
executed and submitted a written offer to purchase the
Property through Seller's real estate brokers, Michael
Volpe (Mr. Volpe) and/or Michael Giuttari, of MG Commercial.
Stipulated Statement of Material Facts (SOF) ¶ 12. On
June 4, 2018, Mr. Cruz and Seller executed a purchase and
sale agreement for the Property (P&S1) with a purchase
price of $1, 212, 500. Ex. 2, §§ 1, 2.
P&S1 contained various terms and conditions relevant to
the instant analysis. Specifically, the P&S1 provided a
60-day inspection period, commencing from the agreement's
effective date, within which time Mr. Cruz could inspect and
assess the Property (Due Diligence Period) and terminate the
P&S1 for any reason. Id. § 12; SOF ¶
15. The P&S1 contained a condition providing that Mr.
Cruz would "use best efforts" during the Due
Diligence Period "to obtain approval from the City of
East Providence to open an automatic Tommy Carwash." Ex.
2, § 12(c). Nevertheless, the P&S1 was not expressly
contingent on Mr. Cruz's obtaining any such permits or
other Federal, State, and/or local regulatory approvals. SOF
¶ 21. The P&S1 contained another provision providing
in substance that Mr. Cruz had the option to cancel the sale
on or before August 1, 2018 in the event he could not obtain
a financing commitment (Mortgage Contingency). Ex. 2, § 13.
Mr. Cruz elected to proceed with the sale, with or without
permits or financing, the P&S1 provided the following
with respect to a closing: "[t]he Seller will deliver
the said deed, duly executed and stamped . . . on August 20,
2018, at 10:00 unless otherwise mutually agreed upon by the
parties" (Closing Date). Ex. 2, § 4. Complications
arose. In mid-July-despite that the Property had previously
been used as a car wash-representatives with the City of East
Providence (City) began to suggest they might not approve a
car wash on the Property until such time as a traffic study
could be performed. Trial Tr. 42:19-23; 99:17-100:9, Apr. 23,
2019. Mr. Cruz was intending to finance the sale of the
Property with a Small Business Administration (SBA) loan,
which would have enabled him to simultaneously finance the
purchase of the Property and equipment; however, these loans
were contingent on the City's approvals. Id. at
the need for a traffic study might affect Mr. Cruz's
ability to close with SBA financing by the Closing Date, Mr.
Cruz, by and through Mr. Mateus, and his attorney, Todd
McNamara (Attorney McNamara), began communicating with
30R6's representatives for several weeks concerning terms
for a proposed extension of the Closing Date, Mortgage
Contingency deadline, and Due Diligence Period. SOF ¶
23. As of August 20, 2018, Mr. Cruz and Seller had not come
to terms on an extension. Id. § 24. No closing
occurred on the Closing Date. Id. § 25.
four days after the Closing Date, Seller decided he had
waited long enough. On August 24, 2018, Seller's
attorney, Matthew Slepkow (Attorney Slepkow), emailed
Attorney McNamara informing him that Seller was terminating
the P&S1 and retaining Mr. Cruz's $50, 000 deposit.
Id. § 26. On August 29, 2018, Seller and KSM
(by and through Steven Medeiros) executed an agreement for
the purchase and sale of the Property (P&S2).
Id. §§ 28, 29. On September 14, 2018,
despite having executed the P&S2, Seller agreed to extend
the Closing Date (in the P&S1) to October 1, 2018
(Extension). Ex. 23. Seller admitted he only executed the
Extension because he was afraid of losing the KSM deal due to
Mr. Cruz's filing of a lis pendens action on
September 5, 2018. Trial Tr. 368:10-17, Apr. 25, 2019.
Apparently, Seller was hoping Mr. Cruz would not be able to
perform, at which time Seller would have petitioned the Court
to remove the lis pendens.
never told Mr. Cruz the purported Extension was a sham. After
receiving the Extension, Mr. Cruz coordinated with Richard
Storti (Mr. Storti), a "hard money" lender
associated with Northeast Equity Partners, LLC, to procure a
financial commitment. On September 28, 2018, Mr. Storti
indicated he was ready to lend and had a commitment letter
prepared for Mr. Cruz. Ex. 24. However, before Mr. Cruz
physically obtained the commitment letter from Mr. Storti,
one of Seller's attorneys sent an email to Mr. Cruz
explaining that the Extension was on hold because KSM had
filed a lawsuit seeking, inter alia, an injunction
preventing the sale of the Property. Ex. 97. This Court held
a hearing on October 3, 2018, and subsequently entered an
order restraining the Property's sale.
standard of review in a non-jury trial is governed by
Superior Court Rules of Civil Procedure 52(a), which
provides, "[i]n all actions tried upon the facts without
a jury . . . the court shall find the facts specially and
state separately its conclusions of law thereon . . . ."
"The trial justice sits as a trier of fact as well as of
law." Hood v. Hawkins, 478 A.2d 181, 184 (R.I.
1984). "[A] trial justice's analysis of the evidence
and findings in the bench trial context need not be
exhaustive." McBurney v. Roszkowski, 875 A.2d
428, 436 (R.I. 2005). "Even brief findings will suffice
as long as they address and resolve the controlling factual
and legal issues." White v. LeClerc, 468 A.2d
289, 290 (R.I. 1983).
respect to the matter tried before this Court, Mr. Cruz seeks
the remedy of specific performance. "The grant of a
request for specific performance is not a matter of right but
rests within the sound discretion of the trial justice."
Eastern Motor Inns, Inc. v. Ricci,565 A.2d 1265,
1269 (R.I. 1989). Specific performance is particularly
appropriate where, as here, the underlying transaction
concerns the sale of land. See, e.g.,
Griffin v. Zapata, 570 A.2d 659, 661-62 (R.I. 1990);
Yates v. Hill,761 A.2d 677, 679 (R.I. 2000).
"[W]hen a buyer has at all times been ready, willing,
and able to perform his or her part of an agreement to
transfer real estate, the buyer is entitled to specific
performance of that ...