Maisano v. Avery

Marsha Avery (defendant) wanted to convert her 21 acres into nine residential lots. To do so, she needed access to a public road on the other side of neighboring property owned by Daniel and Patricia Maisano (plaintiffs). In 2004, Avery and the Maisanos contracted for Avery’s purchase of the Maisanos’ property for $1.35 million, with $150,000 paid at contracting and the remaining $1.2 million due upon closing in 2006. In 2006, the parties extended closing to 2008 because Avery lacked necessary funds. Also in 2006, the parties orally agreed to a land swap, with Avery acquiring 0.27 acres of the Maisanos’ property on which to build an access road and the Maisanos acquiring 0.45 acres of Avery’s property. Between 2006 and 2008, Avery also built a storm-water-drainage system on the Maisanos’ property. The Maisanos did not give Avery an easement but also did not contest the system because Avery was under contract to eventually purchase the impacted property. In 2008, the parties pushed closing to 2011. However, in 2011, Avery remained financially unable to purchase the property. She did, however, form Hamlet Villas, LLC (Hamlet) (defendant), which she used to purchase the mortgages on her own lots, giving Hamlet ownership of the lots. In 2013, the Maisanos threatened to sue unless Avery either closed or executed another addendum extending closing. Avery refused. The Maisanos then sued Avery and Hamlet, Avery’s claimed alter ego, seeking specific performance, meaning an order forcing Avery to proceed with the contracted purchase. The trial court held in the Maisanos’ favor, concluding that Avery breached the contract. However, the court awarded the Maisanos only $150,000 plus interest as liquidated damages, concluding that retention of the deposit amount was the appropriate remedy because the parties’ contract expressly allowed the Maisanos to retain the deposit in the event of Avery’s default. The court concluded that specific performance was not available. The Maisanos appealed.