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).
2
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
3
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
4
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
5
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
6
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).
7
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
8
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.
9
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.
10
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).
11
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.
12