Opinion
19-P-1409
08-10-2020
DONALD ZANI, trustee, v. TOWN OF ASHLAND & 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court judge allowed the defendants' motion to enforce a settlement agreement, and judgment entered accordingly. The plaintiff appeals, arguing among other things that the settlement agreement was not final and enforceable. We affirm.
Background. The plaintiff filed this suit in 2016, raising various claims relating to a sewer easement that he granted to the town of Ashland (town) many years earlier. As alleged in the amended complaint, in 2015 the town's conservation commission fined the plaintiff approximately $50,000 for destroying wetlands in the easement area and later issued an order of conditions requiring him to restore the area at a cost of approximately $10,000. The plaintiff claimed that the town itself disturbed the wetlands while installing the sewer and then failed to restore the premises to its original condition as required by the terms of the easement.
In or around July 2018, the parties entered into settlement negotiations, which were memorialized in a series of e-mail messages. The plaintiff was represented at the time by Attorney Ryan Avery. On July 17 the defendants' counsel sent Avery an e-mail offering to reduce the fines to $300 as long as the plaintiff agreed to comply with the order of conditions. On August 17, after additional negotiations regarding attorney's fees, Avery sent an e-mail stating:
"I have confirmed that [the plaintiff] is willing to dismiss his pending claims against the [t]own and its boards and officers in exchange for the cancellation, waiver or reduction of all fines and penalties to $300. My suggestion is that we request a [sixty] day nisi order from the court during which time . . . (1) [the plaintiff's] engineer can meet with the [c]onservation [a]gent and/or [the conservation commission] to make sure that they are on the same page as to the work that remains outstanding in order to fulfill the [c]ommission's [o]rder of [c]onditions, and (2) we can draft and file the necessary documents to close out the matter."On August 20 the defendants' counsel replied, "I confirmed with my clients approving this settlement agreement. We'll send along a draft agreement and release in the next day or so." Avery promptly replied, "Thank you."
On August 29 the defendants' counsel sent Avery an e-mail with an attached letter stating, "This letter will serve to confirm that the plaintiff and the defendants have agreed to resolve the disputes which [gave] . . . rise to the . . . lawsuit." Also attached were a draft settlement agreement and a stipulation of dismissal. Avery acknowledged receipt of the documents by return e-mail that day; in the same message, Avery expressed his belief that the meeting between the plaintiff and the conservation commission regarding the order of conditions would take place before execution of the documents. The defendants' counsel responded that the settlement could not be conditioned on the outcome of such a meeting, stating that the "meeting was independent of the settlement of the ongoing litigation."
On September 27, 2018, Avery advised the defendants' counsel that the plaintiff was not interested in settlement; the next day, Avery filed a motion to withdraw as counsel. In response, the defendants filed a "cross-motion to enforce settlement agreement," arguing that the e-mail messages reflected the existence of an enforceable agreement. On November 8, 2018, the judge held a nonevidentiary hearing on the motions, at which the plaintiff did not appear. The same day, the judge allowed both motions, noting in the orders that the plaintiff had not appeared at the hearing despite notice.
On March 6, 2019, the plaintiff, now with new counsel, filed a "motion for relief from order of the court or motion to reconsider." The plaintiff argued that the order enforcing the settlement agreement should be vacated because, among other reasons, the e-mail messages did not reflect agreement between the parties on all material terms. The judge denied the plaintiff's motion by margin endorsement, indicating that she relied on the reasons set forth in the defendants' opposition. Judgment enforcing the settlement agreement and dismissing the complaint entered on April 3, 2019.
Discussion. In their appellate briefs, the parties characterize the plaintiff's March 6, 2019, motion as one seeking relief under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). But while the motion did identify rule 60 (b) as the basis for relief, that is not the governing rule because the plaintiff filed the motion before judgment entered. See Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Comm'n, 394 Mass. 233, 236 (1985) ("substance, not labels, should control in determining" nature of motion). As a result, we need not reach the parties' arguments concerning whether the plaintiff demonstrated excusable neglect for his failure to appear at the hearing or their other miscellaneous arguments related to rule 60 (b). Because the plaintiff timely appealed from the judgment, the merits of the judge's determination that there was an enforceable settlement agreement are properly before us. We thus turn to that issue.
"An enforceable agreement requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms." Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). The first part of this test is a question of law. "Consequently, we examine de novo the determination of the e-mail terms as a sufficiently clear and complete agreement." Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008). On the other hand, "[t]he factual finding of [a party's] contemporaneous intent to be bound by the e-mail terms receives review under the 'clearly erroneous' standard of Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996)." Id.
The plaintiff contends that the parties' e-mail messages do not comprise a complete agreement because they left unresolved two material terms: the scope of the work required under the order of conditions, and the potential need for an extension to complete the work. For an agreement to be enforceable, however, "[i]t is not required that all terms of the agreement be precisely specified, and the presence of undefined or unspecified terms will not necessarily preclude the formation of a binding contract." Situation Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000). The question of "whether an absent term renders an agreement fatally indeterminate . . . is to be addressed based on the status of things at the time the parties signaled that an agreement had been reached." Duff v. McKay, 89 Mass. App. Ct. 538, 544 (2016). See Targus Group Int'l, Inc., 76 Mass. App. Ct. at 429 ("Sufficient completeness depends upon the substance of the terms approved by the parties"). If the absent term was a "'subsidiary matter[]' that did not alter the essential nature of the bargain, then there was a contract that could be enforced." Duff, supra, quoting McCarthy v. Tobin, 429 Mass. 84, 86 (1999).
We conclude that the parties' e-mail messages evidenced a sufficiently complete and definite agreement to settle the plaintiff's claims. As reflected in the messages, the parties agreed that the plaintiff would dismiss his claims and comply with the order of conditions in return for the town's reducing the $50,000 fine to $300. This was the resolution proposed by Avery in his August 17 e-mail, and which the defendants' counsel accepted in his August 20 response. The defendants' counsel then prepared settlement papers memorializing the agreed-upon terms. Although the settlement papers did not resolve the precise scope of the work required by the already detailed order of conditions, we agree with the defendants that that issue was a subsidiary one "that did not alter the essential nature of the bargain." Duff, 89 Mass. App. Ct. at 544. As the defendants' counsel observed in a later e-mail, the settlement was never "contingent upon [the plaintiff] having a satisfactory meeting with the [conservation commission]." Furthermore, while Avery initially stated that the settlement agreement would need to provide for an extension to fulfill the order of conditions, he later indicated that an extension might not be necessary if the matter was settled within the next month (i.e., August), which it was. We are therefore unpersuaded by the plaintiff's argument that these were essential terms that remained to be negotiated. See Basis Tech. Corp., 71 Mass. App. Ct. at 37 (enforceable agreement existed where e-mails reflected that "essential business terms" were resolved); Goren v. Royal Invest., Inc., 25 Mass. App. Ct. 137, 141 (1987) (enforceable agreement existed where "all significant economic issues were resolved" and remaining issues were "subsidiary matters").
For similar reasons we are unpersuaded by the plaintiff's argument that he did not intend to be bound by the settlement agreement. Although the agreement was not formally executed, "[i]f . . . the parties have agreed upon all material terms, it may be inferred that the purpose of a final document which the parties agree to execute is to serve as a polished memorandum of an already binding contract." Goren, 25 Mass. App. Ct. at 140. See Duff, 89 Mass. App. Ct. at 546 ("neither side suggested that it would not be bound until [a formal settlement] document was executed"). As discussed, the e-mail messages show that the parties agreed on all material terms of the settlement by August 2018. That the settlement was not reported to the court did not preclude the finding of an intent to be bound, as the plaintiff appears to argue. See, e.g., McCarthy, 429 Mass. at 87-88; Goren, supra at 140-142. Based on the uncontroverted e-mails, it was not clear error for the judge to find that the plaintiff contemporaneously intended to be bound by the terms set forth therein. See Basis Tech. Corp., 71 Mass. App. Ct. at 36.
Nor did the judge err by denying the plaintiff's March 6, 2019, motion for relief from the order or for reconsideration. The plaintiff claimed in the motion that he was unable to attend the November 8, 2018, hearing for medical reasons and that Avery's representations at the hearing did not bind the plaintiff because Avery was seeking to withdraw. But it is uncontested that Avery was representing the plaintiff during the settlement negotiations, and the plaintiff does not argue that Avery acted then without his authorization. The judge therefore did not err in declining to overturn her finding that there was an enforceable agreement and that the plaintiff intended to be bound by it. See Hubbard v. Peairs, 24 Mass. App. Ct. 372, 377-378 (2007) ("Although an attorney, merely by his having been retained in a litigation, does not possess the power to settle it, he may be so empowered by the client, expressly or by implication from conduct" [citation omitted]).
We reject the plaintiff's argument that the judge abused her discretion by not holding a hearing on the motion. No hearing was required under the Superior Court rules, see Superior Court Rule 9A (c), and the plaintiff points to no other authority that supports his position.
Judgment affirmed.
By the Court (Desmond, Sacks & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 10, 2020.