Opinion
11-P-1355
04-23-2012
MELLO CONSTRUCTION, INC. v. TOWN OF WESTFORD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Mello Construction, Inc. (Mello), filed suit in Superior Court against the town of Westford (Westford) alleging nonpayment for construction services performed on a public construction project. Seven years after the complaint had been filed, the parties' lawyers attempted to settle the litigation through an exchange of e-mails. The judge granted Westford's motion to enforce the purported settlement agreement. We address the issue whether or not the exchange of e-mails constituted a contract.
On June 25, 2009, Mello's counsel wrote, 'In furtherance of our discussion on settlement, Mello filed suit in August, 2003 seeking the sum of $14,062.50.' In that same e-mail, Mello's counsel offered to settle for $19,122. Westford's counsel rejected the offer. On August 4, 2009, Mello's counsel again wrote, 'Mello construction, Inc. offers to settle this matter for the sum of $17,000.00.' Westford's counsel again rejected and suggested an amount of $12,000.
On November 13, 2009, Mello's counsel wrote, 'Mello Construction, Inc. has authorized me [to] offer to settle with the Town of Westford for $14,500.00.' Three days later Westford's counsel responded, 'Subject to Board of Selectmen vote and our ability to agree to appropriate settlement and release language, the amount of settlement is agreeable. I will draft appropriate settlement and release language for your review.' That same day Mello's counsel requested the language for review and thanked Westford's counsel for his 'assistance in resolving the matter.' The next day, Mello's counsel wrote, 'Do not approach the Town of Westford. The $14,500 figure did not include the balance of the contract being withheld by Westford and it related to the system development fee only. . . . The balance of the contract being withheld by Westford totals $32,000.00.'
Both in its opposition to the motion to enforce and here on appeal, Mello argues that no settlement agreement was reached. Mello's counsel stated in his affidavit that 'Mello never executed settlement documents, nor did Mello ever agree to proposed settlement documents.'
Offer and acceptance are required for a contract to be formed. See O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 693 (1996). Westford did not unconditionally accept Mello's offer of $14,500. Instead, Westford's attorney continued the negotiation discussions by explaining that the amount was agreeable subject to other conditions. Furthermore, Westford's attorney explained that he would draft a settlement for review. An expectation of an execution of a final written agreement justifies a strong inference that significant terms of the transaction must still be resolved and that the parties do not intend to be bound. Goren v. Royal Invs., Inc., 25 Mass. App. Ct. 137, 140 (1987). And, significantly, the Westford attorney's e-mail recited the contingency of later approval by the governing municipal authority, the town's board of selectmen.
Because there was no final acceptance before Mello's counsel withdrew the offer, there was no enforceable contract.
The judgment dated February 14, 2011, is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
The town's application for appellate attorney's fees and costs is denied.
So ordered.
By the Court (Grasso, Mills & Trainor, JJ.),