SONA PILLAI v. DAVID A. SCALIA & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-138

SONA PILLAI

vs.

DAVID A. SCALIA & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case involves a dispute over ownership of a property

in Westford. Christine Bohenko, her then husband Gregory

Bohenko, and her mother Priscilla Scalia acquired the property

in 1993 via a deed granting it to them "as joint tenants." In

2002 Gregory 2 deeded his interest in the property to Christine.

Priscilla later died, and Christine then sold the property to

the plaintiff, believing that she (Christine) became its sole

owner upon Priscilla's death.

Several years after purchasing the property, the plaintiff

became aware of a potential defect in her title stemming from

the 2002 deed. The plaintiff brought this suit as a result,

1 John Scalia, Christine Bohenko, and the unknown heirs and
devisees of Priscilla Scalia.
2 Because some of the parties and relevant actors share surnames,

we use their first names to avoid confusion.
seeking a declaratory judgment to establish her ownership of the

property and a judgment quieting her title. Priscilla's sons,

defendants David A. Scalia and John Scalia (together, the

defendants), 3 each answered and David counterclaimed, alleging

that Priscilla's interest in the property remained part of her

estate and was conveyed to them through her will. A Superior

Court judge granted summary judgment for the plaintiff, and the

defendants appeal. They argue that the 1993 deed did not create

a joint tenancy between Christine and Priscilla; that, even if

it did, the 2002 deed severed the joint tenancy; and that the

plaintiff was not a bona fide purchaser. We affirm. 4

Background. The basic facts are not in dispute. On

October 27, 1993, Christine, Gregory, and Priscilla acquired

title to the property via quitclaim deed. The deed states that

the grantor conveyed the property "to PRISCILLA SCALIA,

CHRISTINE BOHENKO AND GREGORY BOHENKO, as joint tenants." The

phrase "as joint tenants" appears in handwriting in the margin

on the right side of the deed.

3 Christine and the unknown heirs and devisees of Priscilla are
not parties to this appeal.
4 Although the defendants also appealed from the denials of their

motion to add a party and their motion to reconsider or to alter
or amend the judgment, they have not briefed those issues, which
are thus waived. See Mass. R. A. P. 16 (a) (9), as appearing in
481 Mass. 1628 (2019); Mendoza v. Licensing Bd. of Fall River,
444 Mass. 188, 194 n.10 (2005).

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 At some point thereafter, Christine and Gregory divorced.

Pursuant to their divorce settlement, Gregory executed a

quitclaim deed on September 10, 2002, granting "all [his] right,

title and interest in and to" the property to Christine.

Priscilla died in March 2012. She left a will, which gave

her interest in the property to the defendants, "but only if

[she] ha[d] an interest in that property at the time of [her]

passing." Over six years later in September 2018, Christine

sold the property to the plaintiff. Christine attested in an

affidavit that she believed she became the sole owner of the

property upon Priscilla's death by operation of the joint

tenancy.

When the plaintiff attempted to refinance her mortgage in

2021, an attorney for the lender notified her of a possible

title defect resulting from the 2002 transaction between

Christine and Gregory. This was the first time that the

plaintiff was made aware of any title issues with the property.

She proceeded to file the underlying complaint and then moved

for summary judgment. In allowing her motion, the judge first

determined that the plain language of the 1993 deed created a

joint tenancy among Christine, Gregory, and Priscilla. The

judge next determined that, while Gregory's conveyance of his

interest to Christine in 2002 terminated the joint tenancy,

there was no genuine dispute of fact that Christine and Gregory

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intended for the joint tenancy between Christine and Priscilla

to remain intact; the judge thus ordered that the 2002 deed be

reformed to identify the grantees as "CHRISTINE BOHENKO AND

PRISCILLA SCALIA, as joint tenants." Last, the judge concluded

that the plaintiff was a bona fide purchaser. Judgment for the

plaintiff entered accordingly, and this appeal by the defendants

followed.

Discussion. We review a grant of summary judgment de novo,

viewing the facts in the "light most favorable to the nonmoving

party" and "drawing all reasonable inferences" in the nonmoving

party's favor. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34,

38 (2005). Summary judgment is "appropriate where there are no

material facts in dispute and the moving party is entitled to

judgment as a matter of law." Federal Nat'l Mtge. Ass'n v.

Rego, 474 Mass. 329, 332 (2016).

1. The 1993 deed. The defendants contend that the 1993

deed established a joint tenancy only between Christine and

Gregory and that Priscilla was a tenant in common, allowing her

interest in the property to pass through her will. In

interpreting a deed, we "must construe all words that are plain

and free from ambiguity according to their usual and ordinary

sense." Boston Redevelopment Auth. v. Pham, 88 Mass. App. Ct.

713, 717-718 (2015), quoting Suffolk Constr. Co. v. Lanco

Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999). A joint

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tenancy will be given effect when it "plainly appears from the

deed . . . that the grantor . . . intended that the survivors

should take the whole." Cross v. Cross, 324 Mass. 186, 188

(1949). See Battle v. Howard, 489 Mass. 480, 483-484 (2022)

("Upon the death of one joint tenant, sole ownership of the

property automatically vests in the surviving tenant").

We agree with the judge that the plain language of the 1993

deed -- conveying the property to "PRISCILLA SCALIA, CHRISTINE

BOHENKO AND GREGORY BOHENKO, as joint tenants" -- "clearly

express[ed] an intent to create a joint tenancy" as to all three

of them. Burghardt v. Turner, 29 Mass. 534, 538 (1832).

Contrary to the defendants' assertion, the location of the

phrase "as joint tenants" in the right margin of the deed does

not change the plain import of these words. Absent language

indicating otherwise, we must construe the joint tenancy as

applying to all of the named grantees. See G. L. c. 184, § 7

("In a conveyance or devise to three or more persons, words

creating a joint tenancy shall be construed as applying to all

of the grantees . . . unless a contrary intent appears from the

tenor of the instrument").

The defendants also appear to argue that there is a dispute

of fact as to whether the parties to the 1993 transaction

intended to create a joint tenancy. They rely in particular on

two mortgages that Christine and Priscilla executed in 2002 and

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2003, which do not mention a joint tenancy. But putting aside

that the mortgages reference no tenancy at all and thus have

questionable relevance, if any, to Christine and Priscilla's

intent, we cannot consider parol evidence to create an ambiguity

in the deed when its language is unambiguous. See Panikowski v.

Giroux, 272 Mass. 580, 582 (1930) (parol evidence inadmissible

to modify description in deed that was "clear, explicit and free

from ambiguity").

2. The 2002 deed. The defendants next argue that the

judge improperly reformed the 2002 deed to keep the joint

tenancy intact. As mentioned, reformation is an issue only

because the judge concluded that Gregory's conveyance of his

interest in the property to Christine severed the joint tenancy

among all the grantees. Although no party challenges this

conclusion, we question whether it is correct. Generally, "[a]

joint tenancy is severed when any one of the four unities [the

unity of interest, the unity of title, the unity of time, and

the unity of possession] is destroyed, including due to a

unilateral act of one of the parties." Battle, 489 Mass. at

484. But where, as here, there were more than two joint

tenants, the authorities suggest that a conveyance by one tenant

does not affect the joint tenancy among the remaining tenants.

See, e.g., Foster v. Smith, 211 Mass. 497, 503 (1912) ("a

conveyance by one of three joint tenants of his interest does

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not affect the joint tenancy of the other two"); Jackson v.

O'Connell, 23 Ill. 2d 52, 57 (1961), quoting 2 American Law of

Property § 6.2 (A.J. Casner ed. 1952) ("Where one joint tenant

conveys to one of his cotenants, where there are more than two,

the cotenant grantee holds the share conveyed as a tenant in

common . . . while his original share is held with the remaining

cotenants as a joint tenancy"). Accord American Nat'l Bank &

Trust Co. of Shawnee v. McGinnis, 571 P.2d 1198, 1199 (Okla.

1977); 7 R. Powell, Real Property § 51.04[1], at 51-19 (M. Wolf

ed. 2023). And if that is the case, Christine would have owned

the property outright upon Priscilla's death because Priscilla's

one-third interest would have passed to her as the surviving

joint tenant. See Battle, supra at 483-484.

We need not decide this question, however, because even

assuming that the 2002 transaction severed the joint tenancy

between Christine and Priscilla, the defendants have not shown

that the judge erred in reforming the deed. Reformation is an

equitable remedy, available to correct language in an instrument

that does "not reflect [the parties'] true intent." Mickelson

v. Barnet, 390 Mass. 786, 791 (1984). To be entitled to

reformation, the party requesting it must prove a mutual mistake

or a mistake by one party known to the other. See Polaroid

Corp. v. Travelers Indem. Co., 414 Mass. 747, 756 (1993).

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 Here, the undisputed facts demonstrate that Christine and

Gregory did not intend for their transaction to sever the joint

tenancy between Christine and Priscilla. In support of her

summary judgment motion, the plaintiff submitted an affidavit

from Christine, in which she averred that "the deed from Gregory

was only intended to grant his interest in the [p]roperty to

[her]" and that "it was not intended to change the fact that

[Priscilla] and [Christine] would own as joint tenants so that

when one . . . died, the other would be the sole owner." As the

judge observed, this affidavit is the only material evidence in

the record regarding the intent of the parties to the 2002

transaction. The defendants do not point to any contrary

evidence, nor do they contest that the affidavit established

that any severance of the joint tenancy resulted from a mutual

mistake between Christine and Gregory. Thus, because "the

expected legal consequences were not provided for in the deed,"

the plaintiff was "entitled to have the deed reformed to carry

out the expressed intent of the parties." Franz v. Franz, 308

Mass. 262, 267 (1941).

We are unpersuaded by the defendants' suggestion that the

plaintiff had the burden of showing that Priscilla herself

intended for the joint tenancy to survive the 2002 deed.

Priscilla was not a party to the 2002 transaction, and the

defendants do not explain why the intent of a nonparty matters

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in determining whether an instrument should be reformed. The

one case they cite in support, La Fleur v. C.C. Pierce Co., 398

Mass. 254, 257-258 (1986), states to the contrary that the

relevant inquiry is whether "there has been a mistake between

the parties as to the subject matter of a contract." See Caron

v. Horace Mann Ins. Co., 466 Mass. 218, 223 (2013) ("The mutual

mistake doctrine exists to effectuate the agreement intended by

the parties to a contract"). The defendants' bare assertion

otherwise does not rise to the level of adequate appellate

argument. See Mass. R.A.P. 16 (a) (9), as appearing in 481

Mass. 1628 (2019); Tinsley v. Framingham, 485 Mass. 760, 766

n.13 (2020).

Likewise, to the extent the defendants contend that a deed

can only be reformed to fix technical mistakes, such as problems

with boundary lines and scrivener's errors, they cite no

authority to support that proposition, which appears to

contradict longstanding case law. See, e.g., Mickelson, 390

Mass. at 791-792 (reformation available to correct mistakes of

law); Franz, 308 Mass. at 265-267 (wife entitled to have deed

conveying property to "husband and wife, as joint tenants"

reformed to state "as joint tenants, but not as tenants by the

entirety"). Thus, this assertion too fails to rise to the level

of adequate appellate argument.

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 3. Bona fide purchaser. Finally, the defendants challenge

the plaintiff's status as a bona fide purchaser. 5 A bona fide

purchaser is one who buys land for value without notice or

knowledge of any defect. See Bevilacqua v. Rodriguez, 460 Mass.

762, 777 (2011). At the summary judgment stage, once the moving

party affirmatively demonstrates that there is no genuine issue

of material fact regarding bona fide purchaser status, the

burden shifts to the nonmoving party to establish the existence

of a genuine issue. See Buk Lhu v. Dignoti, 431 Mass. 292, 295

(2000).

The defendants' only argument on appeal as to why the

plaintiff was not a bona fide purchaser is that she was

purportedly on constructive notice of the title issue stemming

from the 2002 deed. But again, the defendants have not

supported their argument with any relevant legal authority and

have thus waived it. In any event, waiver notwithstanding, we

see no basis for imputing constructive notice to the plaintiff.

Constructive notice arises "by presumption of law from the

existence of facts and circumstances that a party had a duty to

take notice of, such as a registered deed." Bank of Am., N.A.

v. Casey, 474 Mass. 556, 567 n.21 (2016), quoting Black's Law

5 The parties appear to agree that bona fide purchaser status is
a prerequisite to quieting title. We will assume, without
deciding, that this is correct.

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Dictionary 1227 (10th ed. 2014). Purchasers are not on

constructive notice of a title defect unless they could have

discovered it "by means of a search conducted in the

conventional method." Dalessio v. Baggia, 57 Mass. App. Ct.

468, 473-474 (2003), quoting 4 American Law of Property § 17.17

(A.J. Casner ed. 1952). In other words the defect must be

ascertainable through "reasonable title examination." Devine v.

Nantucket, 449 Mass. 499, 513 (2007).

The record here presents no genuine dispute that the

plaintiff conducted a reasonable title examination when she

purchased the property. The plaintiff obtained a mortgage loan

and title insurance in connection with the purchase. A title

search conducted by the lender's closing attorney did not

uncover any defect, and the title policy did not list any

encumbrance other than the mortgage. Likewise, when the

plaintiff refinanced her mortgage in 2020, the title policy

issued to the new lender did not identify any defect. These

facts are undisputed, and the defendants offered no evidence to

show that the plaintiff did not comply with standard title

examination practices. They have thus failed to establish a

genuine dispute of fact with regard to constructive notice. See

Dalessio, 57 Mass. App. Ct. at 473 (purchaser not on

constructive notice of defect that would have required

"burdensome investigation" to uncover it).

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 Conclusion. The judgment is affirmed. The orders denying

the defendants' motion to add a party and their motion to

reconsider or to alter or amend the judgment are affirmed.

So ordered.

By the Court (Wolohojian,
Neyman & Shin, JJ. 6),

Assistant Clerk

Entered: February 8, 2024.

6 The panelists are listed in order of seniority.

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