merger doctrine in Massachusetts

2011Sound Techniques, Inc. v. Hoffman, 50 Mass.App.Ct. 425, 429 (2000) (“Whether we refer to the clause in question as a merger clause, an integration clause, or an exculpatory clause, the settled rule of law is that a contracting party cannot rely upon such a clause as protection against claims based upon fraud or deceit”).

2009First, Snapshot’s reliance on Sound Techniques, Inc. v. Hoffman, 50 Mass.App.Ct. 425, 432-33 (2000), is misplaced because the Sound Techniques court specifically refused to void a merger clause on the grounds of a negligent misrepresentation.

2015Zoning violations arising from nonconformities may be stayed by the doctrine of merger, “which treats adjacent lots currently in common ownership as a single lot ‘for zoning purposes so as to minimize nonconformities.’ ” Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 261 (2003), quoting Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 238 (2001).

2013St. 1975, c. 808.’ ” Carabetta, supra at 268-269 , quoting from Preston, supra. Consistent with the merger doctrine, the “grandfather” provision contained in G.

2010Moreover, it does not appear that any postconveyance work remained in McMahon, supra. Their reliance on Solomon v. Birger, 19 Mass. App. Ct. 634, 642 (1985), is simply misplaced, for we observed in Solomon that “the language of the merger clause in the agreement in this case is more carefully drawn than íat considered in the Lipson, Holihan, and McMahon case The language in the instant case merges into the deed ev< y agreement and obligation except ‘such as are, by the te ms hereof, to be performed after the delivery of said de d.’ No provision appears in the agreement which by it terms calls

1985I think that the instant case is controlled in all material respects by McMahon v. M&D Builders, Inc., 360 Mass. 54, 59-60 (1971), which held that agreements which are not essential to the promise to convey do not necessarily merge with the deed, notwithstanding the existence of a merger clause in the accepted deed.

2018"Zoning violations arising from nonconformities may be stayed by the doctrine of merger, 'which treats adjacent lots currently in common ownership as a single lot for zoning purposes so as to minimize nonconformities.' " Palitz , 470 Mass. at 800 , 26 N.E.3d 175 , quoting from Marinelli v. Board of Appeals of Stoughton , 440 Mass. 255 , 261, 797 N.E.2d 893 (2003).

2018"Zoning violations arising from nonconformities may be stayed by the doctrine of merger, 'which treats adjacent lots currently in common ownership as a single lot for zoning purposes so as to minimize nonconformities.' " Palitz , 470 Mass. at 800 , 26 N.E.3d 175 , quoting from Marinelli v. Board of Appeals of Stoughton , 440 Mass. 255 , 261, 797 N.E.2d 893 (2003).

2018That doctrine aptly has been summarized as follows: "[A]djacent lots in common *553 ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities." Preston v. Board of Appeals of Hull , 51 Mass. App. Ct. 236 , 238, 744 N.E.2d 1126 (2001), quoting from Seltzer v. Board of Appeals of Orleans , 24 Mass. App. Ct. 521 , 522, 510 N.E.2d 309 (1987).

2003The Preston court was confronted with an apparent conflict between the language of § 6, which grandfathered separately held lots at the time of the zoning change, and the common-law doctrine of merger, which treats adjacent lots currently in common ownership as a single lot “for zoning purposes so as to minimize nonconformities.” Id. at 238, quoting Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521, 522 (1987).

2011This result may or may not have been intended, but it is not the Court’s place to “question the wisdom of the town’s zoning enactments.” Lee v. Board of Appeals of Harwich, 11 Mass.App.Ct. 148 154 (1981).

2006See Seltzer, 24 Mass.App.Ct. at 524 (relying on local zoning bylaw providing for lot redrawing to prevent merger and allow development of the adjoining non-conforming lot); Lee, 11 Mass.App.Ct. at 154 (allowing development on substandard lot grandfathered under town bylaw); see also Preston v. Bd. of Appeals of Hull, 51 Mass.App.Ct. 236, 240 (2001) (noting cases relying on indulgent local bylaws).

2023Commonwealth v. Gunter, 427 Mass. 259 , 7 As both the murder and the defendant's trial occurred before our decision in Commonwealth v. Brown, 477 Mass. 805, 807 (2017), cert. denied, 139 S. Ct. 54 (2018), we do not address the effect that that decision has on the ongoing vitality of the merger doctrine.

2015Model Jury Instructions on Homicide, supra at 53 n.121 (“Under the merger doctrine, if the only felony committed was the assault upon the victim which resulted in the victim’s death, the assault merges with the killing and cannot be relied on by the Commonwealth to support felony-murder”). 8 , 9 *820 “Whether a particular felony is sufficiently independent from a killing to support a felony-murder conviction is a question that defies categorical analysis; we therefore review claims of merger on a ‘case-by-case basis [and] with reference to specific facts.’ ” Kilburn, 438 Mass. at 359 , quoting

1985Grasso, 317 Mass. at 717-719 , where the merger doctrine was applied to a sale in which the buyer received a smaller lot than contracted for because “to hold the defendant for the missing land would be inconsistent with the deed, which described only lot 37.” Similarly, Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 440-442 (1975), applied the merger doctrine to bar a contract action where the property conveyed was encumbered by a lease for a longer period than specified in the purchase and sale agreement.

1985Contrast Pybus v. Grasso, 317 Mass. at 717-719 , where the merger doctrine was applied to a sale in which the buyer received a smaller lot than contracted for because "to hold the defendant for the missing land would be inconsistent with the deed, which described only lot 37." Similarly, Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 440-442 (1975), applied the merger doctrine to bar a contract action where the property conveyed was encumbered by a lease for a longer period than specified in the purchase and sale agreement. [4] That a house was warranted to have been constructed with buildi

2010Moreover, it does not appear that any postconveyance work remained in McMahon, supra. Their reliance on Solomon v. Birger, 19 Mass. App. Ct. 634, 642 (1985), is simply misplaced, for we observed in Solomon that “the language of the merger clause in the agreement in this case is more carefully drawn than íat considered in the Lipson, Holihan, and McMahon case The language in the instant case merges into the deed ev< y agreement and obligation except ‘such as are, by the te ms hereof, to be performed after the delivery of said de d.’ No provision appears in the agreement which by it terms calls

2007As explained by the Appeals Court in Solomon, supra, the exception to the merger doctrine has been primarily limited to cases involving “house builders” where there was “a separate agreement to construct or repair a building upon the premises to be conveyed” that was to be performed after delivery of the deed.

2023See id. at 86 ("Because aggravated kidnapping involves 26 an intent independent from the killing, neither form of aggravated kidnapping implicates the merger doctrine"); Commonwealth v. Christian, 430 Mass. 552, 556 (2000) (armed robbery does not merge with killing because underlying purpose of armed robbery is to steal, which is independent of intent to harm victim); Commonwealth v. Wade, 428 Mass. 147, 153 (1998), S.C., 467 Mass. 496 (2014) and 475 Mass. 54 (2016) ("the intent to commit the rape, not the intent to inflict serious bodily harm, was the substitute for the malice requirement of

2001While it is true that assaultive acts which cause a victim’s death may not form the basis of a felony-murder conviction, see Commonwealth v. Quigley, 391 Mass. 461, 466 (1984), cert. denied, 471 U.S. 1115 (1985), the reasoning behind the merger doctrine is not germane to the present case.

2015But the court held that because of the merger doctrine, on any retrial of the felony-murder charge with armed home invasion as the predicate felony, “the jury must be instructed,” as they were not in the first trial, “that they may not find the defendant guilty of felony-murder unless, with respect to armed home invasion, they find that the Commonwealth has proved the fourth element of the crime, i.e., conduct of the defendant that was separate and distinct from the acts that caused the victim’s death.” Id. at 303 . 1 In light of Bell , there is some strength to the defendant’s argument about

2015For purposes of the merger analysis, we are concerned with the fourth element. “[T]he question is whether there was evidence presented that the defendant used force, threatened the imminent use of force, or intentionally injured someone in the [house], independent of the [shooting] of the victim that ultimately caused [his] death.” Bell, 460 Mass. at 300 . 10 The evidence supported a finding that the two men were the defendant and Resende.

2006Billingham v. Dornemann, 55 Mass.App.Ct. 166, 175 (2002); Sheehy v. Lipton Indus., Inc., 24 Mass.App.Ct. 188, 193 (1987).

2000See Bates v. Southgate, 308 Mass. at 182-183 ; McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 712-713 (1990); Sheehy v. Lipton Indus., 24 Mass. App. Ct. 188, 193 (1987).

2002“Whether we refer to the clause ... as a merger clause, an integration clause, or an exculpatory clause, the settled rule of law is that a contracting party cannot rely upon such a clause as protection against claims based upon fraud or deceit.” Sound Techniques, Inc. v. Hoffman, 50 Mass. App. Ct. 425, 429 (2000), citing Bates v. Southgate, 308 Mass. 170, 182-183 (1941).

2000In Bates v. Southgate, 308 Mass. 170, 182 (1941), the court held that “contracts or clauses attempting to protect a party against the consequences of his own fraud are against public policy and void where fraud inducing the contract is shown . . . .” This appeal brings before us the question whether Bates applies with equal force when a party enters into a contract containing such a clause, commonly referred to as a merger clause, an integration clause, or an exculpatory clause, in reliance upon a negligent rather than deliberate misrepresentation.

2002See Mc-Evoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 712-713 (1990).

2000See Bates v. Southgate, 308 Mass. at 182-183 ; McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 712-713 (1990); Sheehy v. Lipton Indus., 24 Mass. App. Ct. 188, 193 (1987).

1985Grasso, 317 Mass. at 717-719 , where the merger doctrine was applied to a sale in which the buyer received a smaller lot than contracted for because “to hold the defendant for the missing land would be inconsistent with the deed, which described only lot 37.” Similarly, Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 440-442 (1975), applied the merger doctrine to bar a contract action where the property conveyed was encumbered by a lease for a longer period than specified in the purchase and sale agreement.

1985Contrast Pybus v. Grasso, 317 Mass. at 717-719 , where the merger doctrine was applied to a sale in which the buyer received a smaller lot than contracted for because "to hold the defendant for the missing land would be inconsistent with the deed, which described only lot 37." Similarly, Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 440-442 (1975), applied the merger doctrine to bar a contract action where the property conveyed was encumbered by a lease for a longer period than specified in the purchase and sale agreement. [4] That a house was warranted to have been constructed with buildi

2018The merger doctrine applies in such circumstances unless "clear language" in the zoning ordinance states otherwise, Dwyer v. Gallo , 73 Mass. App. Ct. 292 , 298, 897 N.E.2d 612 (2008), as "[t]he 'usual construction of the word "lot" in a zoning context ignores the manner in which the components of a total given area have been assembled and concentrates instead on the question of whether the sum *699 of the components meets the requirements of the by-law.' " Carabetta v. Board of Appeals of Truro , 73 Mass. App. Ct. 266 , 270-271, 897 N.E.2d 607 (2008), quoting from Asack v. Board of Appeals of

2018The merger doctrine applies in such circumstances unless "clear language" in the zoning ordinance states otherwise, Dwyer v. Gallo , 73 Mass. App. Ct. 292 , 298, 897 N.E.2d 612 (2008), as "[t]he 'usual construction of the word "lot" in a zoning context ignores the manner in which the components of a total given area have been assembled and concentrates instead on the question of whether the sum *699 of the components meets the requirements of the by-law.' " Carabetta v. Board of Appeals of Truro , 73 Mass. App. Ct. 266 , 270-271, 897 N.E.2d 607 (2008), quoting from Asack v. Board of Appeals of

2023See id. at 86 ("Because aggravated kidnapping involves 26 an intent independent from the killing, neither form of aggravated kidnapping implicates the merger doctrine"); Commonwealth v. Christian, 430 Mass. 552, 556 (2000) (armed robbery does not merge with killing because underlying purpose of armed robbery is to steal, which is independent of intent to harm victim); Commonwealth v. Wade, 428 Mass. 147, 153 (1998), S.C., 467 Mass. 496 (2014) and 475 Mass. 54 (2016) ("the intent to commit the rape, not the intent to inflict serious bodily harm, was the substitute for the malice requirement of

2019It is well established that the merger doctrine does not apply to the predicate felony of robbery, where that predicate felony plainly has a purpose separate and distinct from the acts that caused the victim's death. 14 Id., citing Commonwealth v. Christian, 430 Mass. 552 , 13 On appeal, the defendant argues also that one of the judge's instructions misstated the facts.

2023"The merger doctrine functions as a constraint on the application of the felony-murder rule by limiting the circumstances in which a felony may serve as the predicate for felony-murder." Commonwealth v. Fredette, 480 Mass. 75, 80 (2018).7 Specifically, "the conduct which constitutes the felony must be separate from the acts of personal violence which constitute a necessary part of the homicide itself" (quotation and citation omitted).

2023See id. at 86 ("Because aggravated kidnapping involves 26 an intent independent from the killing, neither form of aggravated kidnapping implicates the merger doctrine"); Commonwealth v. Christian, 430 Mass. 552, 556 (2000) (armed robbery does not merge with killing because underlying purpose of armed robbery is to steal, which is independent of intent to harm victim); Commonwealth v. Wade, 428 Mass. 147, 153 (1998), S.C., 467 Mass. 496 (2014) and 475 Mass. 54 (2016) ("the intent to commit the rape, not the intent to inflict serious bodily harm, was the substitute for the malice requirement of

2018The merger doctrine applies in such circumstances unless "clear language" in the zoning ordinance states otherwise, Dwyer v. Gallo , 73 Mass. App. Ct. 292 , 298, 897 N.E.2d 612 (2008), as "[t]he 'usual construction of the word "lot" in a zoning context ignores the manner in which the components of a total given area have been assembled and concentrates instead on the question of whether the sum *699 of the components meets the requirements of the by-law.' " Carabetta v. Board of Appeals of Truro , 73 Mass. App. Ct. 266 , 270-271, 897 N.E.2d 607 (2008), quoting from Asack v. Board of Appeals of

2018The merger doctrine applies in such circumstances unless "clear language" in the zoning ordinance states otherwise, Dwyer v. Gallo , 73 Mass. App. Ct. 292 , 298, 897 N.E.2d 612 (2008), as "[t]he 'usual construction of the word "lot" in a zoning context ignores the manner in which the components of a total given area have been assembled and concentrates instead on the question of whether the sum *699 of the components meets the requirements of the by-law.' " Carabetta v. Board of Appeals of Truro , 73 Mass. App. Ct. 266 , 270-271, 897 N.E.2d 607 (2008), quoting from Asack v. Board of Appeals of

2023Commonwealth v. Gunter, 427 Mass. 259 , 7 As both the murder and the defendant's trial occurred before our decision in Commonwealth v. Brown, 477 Mass. 805, 807 (2017), cert. denied, 139 S. Ct. 54 (2018), we do not address the effect that that decision has on the ongoing vitality of the merger doctrine.

2018So ordered . 1 The jury did not find the defendant guilty of murder in the first degree on a theory of deliberate premeditation. 2 At our request, the parties submitted additional briefing concerning whether the merger doctrine is applicable to the predicate felony of aggravated kidnapping. 3 At our request, the parties submitted additional briefing concerning whether this discrepancy constituted an ex post facto violation and, if so, what would be the appropriate disposition for the defendant's appeal. 4 If the Superior Court judge determines that a new trial is warranted, we note that, as di

2010It can have no effect on the building contract.” 355 Mass. at 642-643 .

2007Id. at 642 , citing McMahon, supra at 59-60 ; Holihan v. Rabenius Bldrs., Inc., 355 Mass. 639, 642 (1969); and Lipson v. Southgate Park Corp., 345 Mass. 621, 625-626 (1963).

2025See, e.g., Sullivan v. etectRx, Inc., 67 F.4th 487, 492-493 (1st Cir. 2023); Bossé v. New York Life Ins.

2024“In the absence of a merger clause, as here, the court must determine whether or not there is an integration ‘by reading the writing in light of surrounding circumstances, and by determining whether or not the agreement was one which the parties would ordinarily be expected to embody in the writing.’ ” Braten v. Bankers Trust Co., 456 N.E.2d 802, 805 (N.Y. 1983), quoting Ball v. Grady, 196 N.E. 402, 403 (N.Y. 1935).

2024“In the absence of a merger clause, as here, the court must determine whether or not there is an integration ‘by reading the writing in light of surrounding circumstances, and by determining whether or not the agreement was one which the parties would ordinarily be expected to embody in the writing.’ ” Braten v. Bankers Trust Co., 456 N.E.2d 802, 805 (N.Y. 1983), quoting Ball v. Grady, 196 N.E. 402, 403 (N.Y. 1935).

2024L. c. 265, § 17; the trial judge dismissed the armed robbery conviction under the merger doctrine. 2 "Call detail records" consist of time-stamped logs of "[1] the telephone numbers from which the cellular telephone received incoming calls [and text messages] and [2] the telephone numbers to which outgoing calls were made [and text messages sent] from the cellular telephone." Commonwealth v. Collins, 470 Mass. 255, 269 (2014).

2023See id. at 86 ("Because aggravated kidnapping involves 26 an intent independent from the killing, neither form of aggravated kidnapping implicates the merger doctrine"); Commonwealth v. Christian, 430 Mass. 552, 556 (2000) (armed robbery does not merge with killing because underlying purpose of armed robbery is to steal, which is independent of intent to harm victim); Commonwealth v. Wade, 428 Mass. 147, 153 (1998), S.C., 467 Mass. 496 (2014) and 475 Mass. 54 (2016) ("the intent to commit the rape, not the intent to inflict serious bodily harm, was the substitute for the malice requirement of