Defendant's Attorney:

Description: South Kingstown, Rhode Island real property civil litigation lawyers represented the Plaintiff and Defendant.


On or about February 25, 2021, plaintiffs entered into a P & S Agreement with defendant, wherein the parties agreed that defendant would sell the Property to plaintiffs for the total sale price of $632,000, which included a $31,000 deposit. According to the P & S Agreement, plaintiffs were required to deliver an initial deposit of $5,000, which was to be "paid and delivered to the [e]scrow [a]gent," Beycome Brokerage Realty (Beycome); and the remaining $26,000 deposit was to be tendered in the same manner "on or before [February 26, 2021]."

The P & S Agreement further detailed that the transaction would close on April 30, 2021, at 10:00 a.m. "or at such other time and place as may be agreed to by [plaintiffs] and [defendant]." The P & S Agreement also memorialized the parties’
agreement that there was no financing contingency and that, in fact, plaintiffs would pay cash for the Property.

According to Mr. Quillen’s testimony at the preliminary-injunction hearing, plaintiffs attempted to tender the initial $5,000 deposit to Beycome when Gianna Quillen (Gianna)2—plaintiffs’ daughter and real estate broker—advised Mr. Quillen that Beycome would not accept the "escrow payment." The defendant’s real estate attorney, Daniel Carter (Attorney Carter), also testified that after he spoke with a gentleman at Beycome, he learned that Beycome was engaged only for purposes of listing the Property.

Because Beycome refused to accept plaintiffs’ deposit, the parties agreed to draft and sign an amendment to the deposit provision of the P & S Agreement. Pursuant to the amendment, plaintiffs would submit one payment of $31,000, payable to Trusthill Real Estate Brokerage (Trust-hill), the brokerage firm that employed Gianna, rather than require plaintiffs to submit two payments totaling $31,000. The amendment to the P & S Agreement is illegible; however, the record demonstrated that Beycome rejected plaintiffs’ $5,000 initial deposit. Counsel for plaintiffs clarified to the court that the $5,000 deposit could not be effectuated, and an amendment was drafted and signed by the parties on or about April 12 and April 15, 2021. The trial justice clarified and affirmed her understanding on the record that "both parties agree that the buyer has forwarded one deposit check in the amount of $31,000."

Attorney Carter testified that, approximately ten days prior to the closing, he received a telephone call from Gianna inquiring whether he wanted to take possession of the $31,000 deposit. Attorney Carter declined Gianna’s delivery of the deposit because the closing would take place in ten days, and he suggested to Gianna that she keep the deposit funds in her own firm’s brokerage account, Trust-hill. The defendant now contests plaintiffs’ delivery of the consolidated check of the $31,000 deposit in this appeal, among other contentions.

The plaintiffs’ real estate attorney, John J. Bevilacqua Jr. (Attorney Bevilacqua), testified that in advance of the April 30, 2021 closing, plaintiffs "wired[] personal funds to [the] escrow account * * *." On April 28, 2021, Attorney Bevilacqua received the first wire transfer in the amount of $115,000, and, on the following day, April 29, 2021, he received a second wire transfer in the amount of $500,000 from Northeast Equity Partners for the purchase price. Attorney Bevilacqua further confirmed that there were "sufficient funds to effectuate the closing" and that "it was actually a nice surprise because normally [parties] scrambl[e] the day of closing to make sure funds hit escrow accounts." Despite the transfer of sufficient funds, the closing did not take place on the morning of April 30, 2021, as required by the P & S Agreement. When questioned during trial, Attorney Bevilacqua and Attorney Carter3 both testified that an outstanding $700 water bill caused the delay in closing on the Property. Attorney Carter explained that
"all the ducks [were] in a row, everything was a go, and then 11:30 in the morning, on April 30th, we [received] the e-mail from [Cox,] saying, stop the presses, I’m not closing until * * * the water bill gets resolved. That’s when it blew up."

Mr. Quillen testified that he was advised that the closing was postponed and scheduled for the upcoming Monday, May 3, 2021. Likewise, Attorney Bevilacqua testified that he told plaintiffs "to hold off until * * * Monday [May 3, 2021]." Meanwhile, according to Cox, he contacted Attorney Bevilacqua’s office again at approximately 1:28 p.m., informing plaintiffs that the water bill issue was resolved—because he apparently paid the outstanding bill himself—and that the closing was to go forward. By this time however, Attorney Bevilacqua testified that plaintiffs—who were already in Florida and driving to Attorney Anthony Gallone’s office that was located ninety minutes away—were informed that the closing was postponed for three days and decided to turn around and drive home. Although Attorney Carter and Attorney Bevilacqua had agreed to postpone the closing to Monday, May 3, 2021, Cox testified that he contacted Gianna on Saturday, May 1, 2021, and advised Gianna that the deal was dead.

Attorney Bevilacqua maintained that "[a]t all times," plaintiffs were "ready, willing, and able to purchase the property[.]" Attorney Carter likewise testified that "[the closing] was teed up and ready to go until [defendant] pulled the plug on" April 30, 2021—the closing date. The Property never closed, and Cox eventually removed the Property from the open market.

The plaintiffs initiated suit on May 5, 2021, by filing a three count complaint, which identified count 1 as "Specific Performance"; count 2 as "Breach of Contract"; and count 3 as "Restraining Order/Injunctive Relief."4 On July 29, 2021, defendant filed an answer and a two-count counterclaim, which identified causes of action for breach of contract and declaratory judgment.5

On June 2, 2022, and June 6, 2022, the trial justice heard plaintiffs’ claim for preliminary injunctive relief pursuant to Rule 65 of the Superior Court Rules of Civil Procedure. The trial justice granted plaintiffs’ motion for a preliminary injunction, concluding that:

"The likelihood of success on the merits has been established. The irreparable harm would [have been] the alienation or conveyance of a unique asset, and the balance of equities clearly favor[ed] the [p]laintiffs in the circumstances and evidence of this case.

"The preliminary injunction preserves the status quo and there is no harm nor is there any prejudice to the [d]efendant, who continue[d] to own the property and collect and retain income, an income stream from the rental of said property."

On August 16, 2022, plaintiffs’ claims were heard on the merits during a one-day bench trial; and, on November 29, 2022, the trial justice issued a written decision, finding that based on the "abundance credible evidence, in addition to documentary evidence," plaintiffs had "exceeded their evidentiary burden of proof for sustaining the claims upon which they [sought] relief." The trial justice further noted that defendant "unilaterally and impermissibly breached the P & S Agreement" and that plaintiffs were "unequivocally, entitled to specific performance of the P & S Agreement having satisfied, in a timely fashion, all of their obligations pursuant to the contract."

On January 19, 2023, the Superior Court entered judgment ordering specific performance, thereby directing defendant to convey and transfer the Property to plaintiffs within thirty (30) days of the date of judgment. The trial justice also dismissed Cox’s counterclaims for breach of contract, declaratory judgment, and damages. Following the entry of judgment, this timely appeal ensued.

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Quillen v. Cox., 306 A.3d 1040 (R.I. 2024)

Outcome: Judgment in favor of the Plaintiff

Affirmed

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Defendant's Experts:

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