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
25-P-214
CHARLES ZAMMUTO
vs.
PAUL DAMIANIDIS, trustee,1 & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Charles Zammuto, appeals from a judgment of
the Superior Court dismissing his complaint against the
defendants, Paul Damianidis as trustee of EKG Realty Trust and
Irene Damianidis as trustee of I & P Realty Trust, as well as
from an order denying his motion to enforce a settlement
agreement against the defendants. We reverse the order denying
the motion to enforce, vacate the judgment, and remand for entry
of a new judgment.3
1 Of EKG Realty Trust.
2 Irene Damianidis, as trustee of I & P Realty Trust.
3In light of our disposition, we do not reach the merits of the plaintiff's appeal from the judgment on the underlying complaint. Background. We briefly summarize the relevant facts from
the parties' agreed statement of facts for trial and the joint
trial exhibits, reserving certain details for later discussion.
The defendants collectively own two next-door properties in
Ashland. The present dispute stems from a mistaken belief by
the parties that the defendants also owned the approximately
twelve-foot wide strip of land (strip) adjoining those
properties.
In May 2019, the plaintiff made an offer to purchase the
properties together, contingent on his timely obtaining the
local and State permitting necessary to build a twelve- to
sixteen-unit apartment building on the land. The defendants
were aware that the plaintiff intended that the building would
span the properties contiguously. The plaintiff and defendants
executed a purchase and sale agreement (P&S) by the end of June
2019, and the plaintiff paid a $35,000 deposit. The plaintiff
incurred costs in applying for special permits to the town
planning board and engaging professional services to prepare the
building plans and test the properties for hazardous waste. The
plaintiff obtained special permits on May 6, 2020. The permits
were initially valid for two years, but were later extended by
executive order and did not lapse until June 15, 2023.
Around July 2020, prior to the closing, an attorney and
title insurance agent for the plaintiff's bank notified the
2 parties that the title to the strip was defective. The parties
determined that an adverse possession claim was the best option
for the defendants to recover ownership of the strip, but doing
so would cost over $3,000 and would take months to complete.
The defendants rejected the plaintiff's offer to share the costs
to cure title to the strip. Instead, they elected to terminate
the P&S by invoking provisions purportedly allowing them to do
so in case they were unable to deliver possession with clear
title within thirty days of the time for performance or without
expending more than $3,000 to cure any defect in title.
On September 25, 2020, the plaintiff filed a complaint in
the Superior Court seeking specific performance of the P&S,
damages for "misrepresentation, detrimental reliance, [and]
restitution," and damages under G. L. c. 93A, §§ 2, 11. The
defendants filed a counterclaim for breach of contract, alleging
that the plaintiff wrongfully refused to close on the purchase
of the properties without title to the strip and seeking
forfeiture of the plaintiff's deposit.4
In July 2021, the defendants obtained title to the strip
through an action in the Land Court. In the fall of 2021, the
defendants approached Carlos Hanzi, the manager of Evolution
4 On March 15, 2021, a different judge granted the plaintiff a preliminary injunction ordering the defendants to release the deposit.
3 Developments, LLC (Evolution), about purchasing the combined
properties, including the strip.
The defendants, the plaintiff, and Hanzi negotiated a
settlement agreement in November 2021 whereby Evolution would
purchase the properties from the defendants and have the special
permits from the plaintiff transferred to Evolution, and at the
time of closing, the plaintiff would be "paid $100,000.00 by the
closing attorney as a sellers' expense" and the defendants and
plaintiff would dismiss their claims in the underlying
litigation. The plaintiff and the defendants signed the
settlement agreement; however, before Hanzi signed the
settlement agreement, the defendants notified Hanzi and the
plaintiff that they were withdrawing from the sale to Evolution.
The parties' joint pretrial memorandum filed in February
2022 and subsequent representations at the final pretrial
conference on January 9, 2024, clarified that the plaintiff had
abandoned his claims for specific performance of the P&S and
violation of G. L. c. 93A and that the defendants had abandoned
their counterclaim. The only remaining claim in the complaint
was for "misrepresentation, detrimental reliance, [and]
restitution," for which the plaintiff sought $87,591.51 in
damages. On the same day that the final pretrial conference was
held, the plaintiff filed a motion to enforce the settlement
agreement (motion to enforce). On January 16, 2024, the judge
4 heard the motion to enforce and conducted a bench trial on the
plaintiff's misrepresentation claim.
On February 20, 2024, the judge issued an order that the
plaintiff's motion to enforce was moot. On November 8, 2024,
the judge issued a written decision finding that the plaintiff
had not met his burden on his misrepresentation claim. Judgment
dismissing the complaint on the merits entered on November 12,
2024.
Discussion. Where a settlement agreement has been reached
while litigation is pending, a trial court judge has the
authority to informally resolve contract claims stemming from
that agreement when they are advanced by motion. See Duff v.
McKay, 89 Mass. App. Ct. 538, 541-542 (2016). "A settlement
agreement is a contract and its enforceability is determined by
applying general contract law" (citation omitted). Dacey v.
Burgess, 491 Mass. 311, 318 (2023). Interpretation of the terms
of a settlement agreement, like those of any contract, is a
question of law that we review de novo. See, e.g., USM Corp. v.
Arthur D. Little Sys., Inc., 28 Mass. App. Ct. 108, 116 (1989).
Given the proximity to trial of the plaintiff's filing the
motion to enforce and the lack of an evidentiary hearing, we
"treat[] [the motion] as akin to one for summary judgment," and
thus we review the denial of the motion "de novo, to determine
whether, viewing the evidence in the light most favorable to the
5 nonmoving party, all material facts have been established and
the moving party is entitled to a judgment as a matter of law"
(quotation and citation omitted). Duff, 89 Mass. App. Ct. at
542-543.
Here, the plaintiff alleged in the motion to enforce that
the defendants were in breach of the settlement agreement. As a
remedy, the plaintiff sought a judgment of $100,000 against the
defendants and an order dismissing the plaintiff and defendants'
claims with prejudice.5
The judge found that the settlement agreement was a binding
contract on the parties. Although the judge found that the
defendants essentially committed a breach of the settlement
agreement, he denied the motion to enforce as "moot" based on
"the contingent nature of the settlement agreement" and "the
passage of time." Accordingly, the judge did not reach the
issue of the plaintiff's remedy. We discuss these points in
turn.
1. Existence of contract. We conclude that the evidence
supported the judge's conclusion that the settlement agreement
was binding on the parties.
5 At the motion hearing, the plaintiff clarified that he was no longer seeking dismissal of the defendants' counterclaim because the defendants had abandoned it.
6 A binding agreement requires that "the parties manifested
the intent, viewed objectively, to be bound at the time of
contract formation, notwithstanding [any] party's subjective
intent." Brewster Wallcovering Co. v. Blue Mountain
Wallcoverings, Inc., 68 Mass. App. Ct. 582, 596 n.35 (2007).
The defendants argue that although they and the plaintiff signed
the settlement agreement, the agreement did not become binding
because Hanzi never signed it or indicated when he would. We
disagree.
E-mail correspondence between counsel for the three parties
to the settlement agreement demonstrates that the agreement was
actively negotiated in early November 2021. After defense
counsel circulated a draft on November 11, 2021, plaintiff's
counsel responded that the agreement "look[ed] fine" besides
needing to incorporate a promise by the defendants to dismiss
their counterclaim -- a term which the final agreement added.
On November 12, 2021, Hanzi's attorney approved the terms of the
negotiated settlement agreement in an e-mail message stating,
"Looks good -- thanks."
On November 16, 2021, the defendants signed the settlement
agreement and sent an e-mail message notifying the plaintiff and
Hanzi and inquiring about their preferred method for execution.
Plaintiff's counsel stated that, regardless of how the document
was executed, "[The plaintiff] can sign either way." The next
7 day, defense counsel mailed the original agreement to the office
of Hanzi's attorney, who received the document on November 18
and wrote to the plaintiff and defendants inviting the plaintiff
to come to his office to sign in person. The plaintiff
ultimately signed the settlement agreement in person at Hanzi's
office on the morning of November 23.6 Later that morning,
Hanzi's attorney sent an e-mail message to the defendants'
attorney demonstrating that he had already begun preparing the
application for transfer of the site plan approval as
contemplated by item 2 of the settlement agreement.
From these facts, it is clear that negotiations of the
settlement agreement had been perfected,7 as the plaintiff,
defendants, and Hanzi had each assented to the settlement
agreement's final terms. No party to the settlement agreement
suggested that it would not be bound until the formal settlement
agreement was executed, and the defendants readily executed it.
See Duff, 89 Mass. App. Ct. at 546. The plaintiff and Hanzi
approached the act of signing as a formality without
equivocation. Accord Fecteau Benefits Group, Inc. v. Knox, 72
6 This fact, while apparently disputed in the trial court, is conceded in the defendants' appellate brief. It is not material to our analysis.
7 This determination is not affected by the apparent factual dispute over whether the purchase and sale agreement between the defendants and Evolution was still actively being negotiated.
8 Mass. App. Ct. 204, 213 (2008) (no error in finding intent to be
bound where e-mail exchange included all material terms of
agreement, deadline for acceptance, and acceptance without
equivocation). Viewed objectively, the statements and conduct
of the parties to the settlement agreement manifested their
contemporaneous intent to be bound such that a contract had been
formed at latest by the morning of November 23. See Novel Iron
Works, Inc. v. Wexler Constr. Co., 26 Mass. App. Ct. 401, 410
(1988) (concluding draft agreement was binding notwithstanding
lack of signatures where "[t]he preliminaries had been
completed, the essential terms of the agreement had been
reached, and the parties thereafter engaged in activities
consistent with their agreement").
2. Conditions precedent to enforceability. The judge
found that the motion to enforce was "moot" in part because the
agreement was "contingent upon four . . . other steps
occurring." The judge did not specify whether he meant that the
conditions were precedent to contract formation or to
performance. See Twin Fires Inv., LLC v. Morgan Stanley Dean
Witter & Co., 445 Mass. 411, 420-421 (2005). The parties agree
that the conditions contained in items 1 through 4 of the
settlement agreement preceded at least the obligations to
perform set forth in items 5 to 6, to wit, the defendants'
9 obligation to pay the plaintiff $100,0008 and the plaintiff and
defendants' mutual obligation to dismiss and release all their
claims in the underlying litigation. However, the defendants
further press the argument that the nonoccurrence of the
conditions foreclosed contract formation. The crux of their
argument is that the settlement agreement was a "framework" that
would only take legal effect if the defendants closed on the
sale with Evolution, while leaving the defendants free to
disengage from the closing if it was not beneficial to them.
We agree with the plaintiff's position that the conditions
in the settlement agreement are not precedent to its
effectiveness and that the agreement imposed on the defendants a
duty to attempt to close with Evolution in good faith.
"Contract conditions precedent generally are of two kinds."
Haverhill v. George Brox, Inc., 47 Mass. App. Ct. 717, 719
(1999). "The first involves issues of offer and acceptance
which precede and determine the formation of a contract. . . .
The second arises from the terms of a valid contract and defines
an event which must occur before a right or obligation matures
under the contract." Id. Conditions precedent may be created
8 Although the judge interpreted the settlement agreement to mean that Hanzi would pay $100,000 to the plaintiff, we conclude that the agreement unambiguously obligated the defendants to make that payment. The settlement agreement describes the payment as a "sellers' expense," not a buyer's expense.
10 through "emphatic words" or through an intent manifested by the
contract as a whole. Massachusetts Mun. Wholesale Elec. Co. v.
Danvers, 411 Mass. 39, 46 (1991).
Here, the defendants' proposed reading of the conditions as
precedent to the effectiveness of the settlement agreement is
unreasonable for two reasons. First, although the emphatic
conditional language in items 5 and 7, set out in full in the
margin,9 pertains in part to offer and acceptance, it implicates
the purchase and sale agreement between the defendants and
Evolution, not the settlement agreement itself. Cf. Haverhill,
47 Mass. App. Ct. at 719. Instead, item 5 is more naturally
read to define events -- the satisfactory completion of items 1
through 4 -- which must occur before the plaintiff and
defendants' core obligations mature under items 5 and 6 of the
contract.
9 Those provisions of the settlement agreement follow:
"5. In the event that items 1-4 above are satisfactorily completed, then at closing between [the defendants] and Evolution, [the plaintiff] will be paid $100,000.00 by the closing attorney as a sellers' expense;
"6. In exchange for the $100,000.00 check, [the plaintiff and the defendants] will sign and exchange a signed Stipulation of Dismissal with prejudice of all claims and counterclaims in the lawsuit for filing in the Middlesex Superior Court, together with mutual releases;
"7. In the event that Evolution does not close on the property, this [a]greement shall be null and void."
11 Second, although we grant the defendants that item 1 --
agreeing that the defendants "are authorized to accept the
Evolution offer" -- does not appear to impose a requirement to
close when read in isolation, our interpretation is informed by
the structure and surrounding provisions of the contract. See
Charles I. Hosmer, Inc. v. Commonwealth, 302 Mass. 495, 501
(1939) ("The literal interpretation of any word or phrase may be
qualified by the context in which it appears, [and] by the
general purpose manifested by the entire contract").
Items 2 through 4 set forth actionable tasks incumbent on
the plaintiff and that were prerequisites to closing: to
cooperate with Evolution in securing town board approvals for
permit transfers to Evolution, to assign certain rights to
Evolution, and to indemnify Evolution and the defendants against
certain claims. Meanwhile, item 5 treats the preceding four
items as tasks to be "satisfactorily completed" prior to the
time of the parties' core performance at closing. Item 7 of the
agreement provides that "[i]n the event that Evolution does not
close on the property, this [a]greement shall be null and void."
This emphatic provision for ineffectiveness applies only to
Evolution's failure to close,10 and there is no comparable
10In contrast, the event triggering payment to the plaintiff is the "closing between [the defendants] and Evolution" (emphasis added). We presume that this distinction is deliberate. See J.A. Sullivan Corp. v. Commonwealth, 397
12 language to void the agreement in the event that the defendants
thwarted the closing. Nor is there any language to void the
agreement in the event that the plaintiff failed to take the
actions set forth in items 2 through 4.
To harmonize these provisions, we construe the agreement as
charging the defendants with the pursuit of closing in parallel
with the plaintiff's duties established in items 2 through 4.
Accordingly, we agree with the plaintiff's contention that the
agreement contemplates that the defendants were required to make
a good faith attempt to close with Evolution. See Weiler v.
PortfolioScope, Inc., 469 Mass. 75, 82 (2014) (every contract
contains implied covenant of good faith and fair dealing). See
also Goren v. Royal Invs. Inc., 25 Mass. App. Ct. 137, 139
(1987) (parties' obligation to exercise good faith in attempting
to draft and negotiate formal purchase and sale agreement was
implicit in provision of preliminary agreement looking to
execution of agreement).
3. Breach of contract. Notwithstanding the conditional
nature of the defendants' core obligations under items 5 and 6,
we agree with the plaintiff that the judge erred by determining
that the nonoccurrence of the conditions precedent rendered the
defendants' obligation to perform unenforceable. "A repudiation
Mass. 789, 795 (1986) ("[E]very phrase and clause must be presumed to have been designedly employed" [citation omitted]).
13 of a contract is a material breach" and when it is "with respect
to the entire performance that was promised or with respect to
so material a part of it as to go to the essence," the
repudiation "operate[s] as a discharge of the other party"
(citation omitted). Coviello v. Richardson, 76 Mass. App. Ct.
603, 609 (2010). Furthermore, "it is fundamental that a
promisor may not avoid his promised performance based on the
nonoccurrence of a condition, where the promisor has himself
hindered or prevented its occurrence." Lobosco v. Donovan, 30
Mass. App. Ct. 53, 56 (1991). See Restatement (Second) of
Contracts § 245 (1981).
The November 23, 2021 e-mail message from the defendants'
attorney informed the plaintiff and Hanzi that the defendants
would not enter into a purchase and sale agreement with
Evolution and would not negotiate further. This was a definite
and unequivocal manifestation of the defendants' intention not
to perform any of its obligations under the settlement
agreement; it consequently served to repudiate the settlement
agreement and excuse the plaintiff from any further performance.
See Coviello, 76 Mass. App. Ct. at 609. The defendants waived
nonoccurrence of the conditions precedent as a defense to their
own failure to perform, having precluded the occurrence of the
same by their repudiation. See Lobosco, 30 Mass. App. Ct. at
56.
14 We conclude that the defendants' obligation to pay the
plaintiff $100,000 is enforceable even though the conditions
precedent to that obligation were not fulfilled, and that the
defendants committed a breach of that obligation.
4. Timeliness. As a second ground for denying the motion
to enforce as "moot," the judge cited his concern that the
plaintiff had waited over two years after the defendants' breach
to file his motion to enforce. The judge stated that the
special permits had lapsed in May 2022 and found that "imposing
a remedy of specific performance at this juncture is futile, at
best, and further was not requested as the relief sought by the
[p]laintiff" (footnote omitted). We agree with the plaintiff
that this was error.
The judge's finding appears to be made in response to the
defendants' reliance on the equitable defense of laches in their
opposition to the motion to enforce and at the motion hearing.
We therefore ground our analysis of the finding in that
doctrine. "A judge may find as a fact that laches exists if
there has been unjustified, unreasonable, and prejudicial delay
in raising a claim." Srebnick v. Lo-Law Transit Mgt., Inc., 29
Mass. App. Ct. 45, 49 (1990).
15 Assuming arguendo that laches is an available defense to
enforcement of the settlement agreement,11 the plaintiff's
argument exposes two errors in the judge's finding. First,
under our interpretation of the settlement agreement, the record
does not support a finding that the plaintiff's delay in
bringing the motion to enforce was unreasonable. Whereas the
judge explained that "[i]t is undisputed that the permit
obtained by the [p]laintiff lapsed in May 2022," the parties'
agreed statement of facts for trial states that the special
permits were extended by executive order until June 15, 2023.
Because the settlement agreement did not contemplate a date for
the closing, it is conceivable that the time for the defendants'
performance under items 5 and 6 would not have arrived until
June 15, 2023, when the special permits, if "substantial use [of
them had not yet] commenced," would have lapsed. In these
circumstances, and where the date for performance of the
settlement agreement depended on the outcome of negotiations of
Evolution, we interpret the settlement agreement to impose June
15, 2023, as a "reasonable" deadline for performance. See
Dalrymple v. Winthrop, 97 Mass. App. Ct. 547, 555 (2020).
11Laches generally is not a bar to recover money damages for breach of contract. See Bedford Heating & Air Conditioning Co. v. Milano, 6 Mass. App. Ct. 898, 898 (1978).
16 Because "Massachusetts has not generally recognized the doctrine
of anticipatory repudiation," we agree with the plaintiff that
he would not have been able to bring a claim for breach of
contract at law until the special permits expired (citation
omitted). K.G.M. Custom Homes, Inc. v. Prosky, 468 Mass. 247,
253 (2014). Although limited exceptions have been made to that
rule for some equitable causes of action, see Cavanagh v.
Cavanagh, 33 Mass. App. Ct. 240, 243 (1992), in consideration of
the defendants' repudiation, we also agree with the plaintiff
that he was not obligated to bring a claim for specific
performance or injunctive relief prior to the lapse of the
special permits. See Blakeley v. Pilgrim Packing Co., 4 Mass.
App. Ct. 19, 24 (1976) ("[O]ne, who openly defies known rights,
in the absence of anything to mislead him or to indicate assent
or abandonment of intent to oppose on the part of others, is not
in a position to urge as a bar failure to take the most instant
conceivable resort to the courts" [citation omitted]).
Second, as we interpret the settlement agreement, the
plaintiff's delay in bringing the motion to enforce did not
prejudice the defendants. Contrary to the judge's finding that
enforcement would be "futile," the plaintiff correctly points
out that both of the parties still "have a stake in the claim."
Indeed, the relief the plaintiff sought through the motion to
enforce was the specific benefit of the settlement bargain: a
17 judgment against the defendants enforcing their obligation to
pay him $100,00012 and enforcing the plaintiff and defendants'
promises to dismiss with prejudice their claims in the
underlying litigation. The lapse of the special permits did not
prejudice the defendants' position in the enforcement of the
settlement agreement because the defendants had no rights to the
permits and the agreement contemplated only that the plaintiff
would "cooperate with Evolution . . . to get all approvals by
and from the appropriate Town of Ashland boards or committees
needed in order to transfer all [p]ermits to Evolution"
(emphasis added). Hanzi, as a nonbreaching third party to the
settlement agreement, could not be compelled to perform. After
the defendant's repudiation caused Hanzi to lose interest in the
deal, the defendants never stood to benefit from the plaintiff's
special permits under the settlement agreement. Because the
record does not support any finding that the plaintiff's delay
in bringing the motion to enforce was unreasonable or
prejudicial, we conclude that there was no equitable basis for
denying the plaintiff's motion. This is therefore a live
controversy, and the plaintiff's motion to enforce the
settlement agreement was not moot.
12Paragraph 5 of the settlement agreement represented payment to the plaintiff to reimburse him for his prior expenses, which are also the subject of his claim for misrepresentation.
18 5. Recovery for breach. "The long-established general
rule for breach of contract recovery . . . is that the wronged
party should receive the benefit of his bargain, i.e. be placed
in the same position as if the contract had been performed."
VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 611
n.2 (1994). Here, the plaintiff is entitled to $100,000, the
amount that he would have received if the settlement agreement
had been performed.
Conclusion. We conclude that there was no genuine dispute
of fact material to the motion to enforce and that, taking the
undisputed facts in the light most favorable to the defendants,
the plaintiff was entitled as a matter of law to a favorable
judgment on the motion. See Duff, 89 Mass. App. Ct. at 542.
If the motion to enforce had been properly allowed, the
trial would have been avoided and the complaint dismissed but
not on the merits. Accordingly, we reverse the order denying
the plaintiff's motion to enforce the settlement agreement, and
a new order shall enter allowing the motion. We vacate the
judgment of dismissal on the merits, and we remand for entry of
a new judgment ordering the defendants to provide $100,000 to
19 the plaintiff and dismissing with prejudice the plaintiff's
complaint and the defendants' counterclaim.13
So ordered.
By the Court (Singh, Grant & Tan, JJ.14),
Clerk
Entered: June 11, 2026.
13 The defendants' request for attorney's fees is denied.
14 The panelists are listed in order of seniority.