Martorella v. Rapp
Massachusetts Land Court
June 1, 2020, Decided
20 MISC 000153
[*306] ORDER GRANTING SPECIAL MOTION TO DISMISS
This case presents to this Court the first dispute, but likely not the last, concerning the effects of the COVID-19 pandemic upon what once was considered normal commerce. While the virus itself is novel, and while it has had a devastating effect upon the family of plaintiff Christopher Martorella, the principles that guide the Court's decision in this case—chiefly, the common law concerning when performance under a contract may be temporarily excused, owing to unforeseen circumstances that have made one party's performance temporarily impossible—are not new. They dictate that this Court must dismiss Mr. Martorella's claims.
This Court docketed Mr. Martorella's verified complaint on April 6, 2020. He moved at that time under M.G.L. c. 184, § 15(b), for endorsement of a memorandum of lis pendens, which he intended to record against the title of a residence at 15 Wigwam Road in Nantucket, Massachusetts. See McMann v. McGowan, 71 Mass. App. Ct. 513, 519, 883 N.E.2d 980 (2008), quoting Wolfe v. Gormally, 440 Mass. 699, 700, 802 N.E.2d 64 (2004) ("A memorandum of lis pendens is a notice on the record title of real estate that reflects the pendency of any action that 'affects the title to real property or the use and occupation thereof.'"). Martorella and his [**2] family have spent numerous summers at 15 Wigwam Road, and he was the winning bidder at an auction for the property.
After an emergency telephonic hearing on April 6, 2020 (the pandemic having prevented the Court from convening any in-person proceedings), the Court denied the requested endorsement, without prejudice to Mr. Martorella renewing his motion. On April 17, 2020, Martorella amended his complaint. He asked again under § 15(b) for endorsement of a memorandum of lis pendens.
Three of the four defendants named in the amended complaint—Commissioner Stuart Rapp, Jeffrey Stark, and Laura Donaldson—opposed Mr. Martorella's motion. They also filed pursuant to c. 184, § 15(c), special motions to dismiss the complaint. (The fourth defendant in this case, Laura Martorella, is Mr. Martorella's spouse. She did not oppose her husband's motion for endorsement of a memorandum of lis pendens, nor did she move to dismiss his amended verified complaint. But for simplicity's sake, this Order will use "Defendants" to describe all defendants except for Laura Martorella.) The parties appeared on May 27, 2020 for a telephonic hearing on their motions.Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.
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28 LCR 306 *; 2020 Mass. LCR LEXIS 104 **; 2020 WL 2844693
CHRISTOPHER MARTORELLA v. STUART RAPP, ESQ., as Partition Commissioner in Stark v. Martorella, 17 MISC 000634 (Land Court); JEFFREY STARK, RACHEL DONALDSON, and LAURA MARTORELLA,
deposit, financing, Verified, auction, pandemic, Addendum, contingencies, real-estate, memorandum, endorsement, delivery, mortgage, pendens, buyer, recommendation, notice