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17-P-794 Appeals Court
NANCY DALRYMPLE vs. TOWN OF WINTHROP.
No. 17-P-794.
Suffolk. December 13, 2019. - June 2, 2020.
Present: Sullivan, Maldonado, & Wendlandt, JJ.
Practice, Civil, Summary judgment. Contract, Settlement agreement, Performance and breach, Construction of contract. Judgment, Implementing settlement agreement. Judicial Estoppel.
Civil action commenced in the Superior Court Department on January 5, 2016.
The case was heard by Robert J. Kane, J., on motions for summary judgment.
Benjamin Flam for the plaintiff. Michele E. Randazzo for the defendant.
SULLIVAN, J. The plaintiff, Nancy Dalrymple, appeals from
a summary judgment entered in favor of the town of Winthrop
(town), dismissing her complaint for breach of contract and 2
unjust enrichment.1 On appeal, she contends that the town
committed a breach of a settlement in a Federal court action.
The town maintains that Dalrymple repudiated the settlement
agreement and pursued claims barred by its terms. We conclude
that Dalrymple's delay in signing the settlement for a period of
nearly one year after the agreement was first made, while
litigating claims that were barred by the release, constituted a
repudiation of the agreement as a matter of law. Accordingly we
affirm the entry of judgment in favor of the town.
Background. The matter came before the Superior Court
judge on cross motions for summary judgment. Because judgment
was granted for the town, we review the evidence in the light
most favorable to Dalrymple. See Khalsa v. Sovereign Bank,
N.A., 88 Mass. App. Ct. 824, 830 (2016).
Dalrymple was a police officer employed by the town.2 On
February 8, 2012, Dalrymple filed suit against the town in the
1 Dalrymple's original complaint also contained a count alleging unfair and deceptive acts, see G. L. c. 93A and G. L. c. 176D, against Winthrop's insurer, the Massachusetts Interlocal Insurance Association. The parties later stipulated to the dismissal of Dalrymple's claims against the insurer.
2 There exists a long history of administrative proceedings and litigation involving the parties. See Dalrymple v. Civil Serv. Comm'n, 50 Mass. App. Ct. 611, 612-616 (2000) (detailing Dalrymple's history as police officer, and harassment and discrimination she experienced in that position). See also Dalrymple v. Civil Serv. Comm'n, 82 Mass. App. Ct. 1107 (2012) (rule 1:28 memorandum and order affirming Civil Service Commission's ruling upholding police chief's decision to suspend 3
United States District Court for the District of Massachusetts
alleging that the town had violated State and Federal
discrimination laws.3 At the same time, other discrimination and
retaliation claims were pending before the Massachusetts
Commission Against Discrimination (MCAD). In January, 2014, the
MCAD issued a decision favorable to Dalrymple ordering that she
be promoted to sergeant retroactive to March 1, 2002. Dalrymple
v. Winthrop, 36 Mass. Discrimination L. Rep. 10 (2014).
On March 21, 2014, with trial in the Federal case set to
begin ten days later, the parties agreed to settle. Dalrymple's
attorney reported the case settled to the Federal court. The
parties agree that the terms of the settlement required that the
town (1) pay Dalrymple $110,000; (2) offer Dalrymple the ability
to purchase two cemetery plots in town-owned cemeteries; (3)
credit 821 hours of sick leave; and (4) agree that the
settlement would not impact claims Dalrymple might have for
injuries in the line of duty. In exchange, Dalrymple agreed to
Dalrymple for five days for refusing to consent to fitness-for- duty examination); Dalrymple v. Winthrop, 36 Mass. Discrimination L. Rep. 10 (2014) (hearing officer determination that town had discriminated and retaliated against Dalrymple, ordering that she be promoted to sergeant retroactively to 2002, and awarding emotional distress damages).
3 Dalrymple amended her complaint on October 26, 2012, and later filed a second suit against the town based on related events. The Federal District Court consolidated the two actions on April 10, 2013. 4
(1) dismiss her Federal court lawsuit and (2) execute a general
release of claims. There is no contemporaneous documentation in
the record regarding the effective date of the release. On
March 24, 2014, the Federal court entered a sixty-day dismissal
nisi order. Dalrymple was sworn in as sergeant on March 31,
2014, in accordance with the MCAD order.
Within one to two days of the promotion, the department
assigned her to the night shift. On April 4, 2014, Dalrymple
and her union filed a grievance alleging that the police chief
had violated the collective bargaining agreement (CBA) by
reassigning Dalrymple to the night shift.
Five days later, counsel for the town sent plaintiff's
counsel a draft release that included all claims through the
date of execution. Dalrymple's attorney sent the town's
attorney a new draft settlement agreement and release on April
17, 2014, with a carve-out from the general release for "[t]he
order that led to Ms. Dalrymple's grievance, filed on April 4,
2014, and any claims or causes of action arising out of the
subject of the April 4, 2014 grievance."4 Although there were e-
mails between attorneys for the town that suggest that they
might have been amenable to the proposal, there is no written
4 The proposed "carve-out" also applied to any possible claims arising from Dalrymple's ownership of property in Winthrop. 5
response to this proposal in the record. In the Superior Court,
Dalrymple claimed the town had agreed to the carve-out. The
town attorney's affidavit stated that the parties agreed upon a
release of claims "up until the date plaintiff signed the
release." The town left open at the summary judgment hearing
whether there had been agreement on the carve-out; counsel
stated at the hearing on summary judgment that "[w]e don't think
that there was a carve out, but I can't prove it, and I don't
think [Dalrymple's counsel] can prove it one way or the other,
because there's just no records that show an acceptance of that
term." On appeal, the defendants now agree for purposes of
summary judgment that an agreement on the carve-out was reached,
but the record does not reflect when, if at all, the parties
agreed to the carve-out.5
At some point on or after April 25, 2014, Dalrymple's
counsel informed the town's attorneys that Dalrymple wished to
withdraw from the settlement and wanted "her day in court."
Counsel for the town filed an affidavit stating that he
understood "that Ms. Dalrymple was refusing to sign a release
precisely because she no longer wanted to waive any claims she
5 In the Superior Court Dalrymple claimed the parties had agreed to the carve-out before she sought to return the case to the docket. The motion judge treated Dalrymple's assertion that the carve-out was agreed to as true for purposes of summary judgment. 6
had against the [t]own and wanted to continue to pursue her
[F]ederal court litigation, despite her prior agreement to the
contrary." A second attorney for the town stated that it was
her understanding that "the source of Ms. Dalrymple's
unwillingness [to sign the release] was because she was upset
about certain actions having occurred with respect to her
employment as a police officer, in particular her shift
assignment."6
On May 9, 2014, Dalrymple sought a thirty-day extension of
the dismissal nisi order, which was granted to June 22, 2014.
Attorneys for Dalrymple and for the town unsuccessfully
attempted to broker a "global settlement" of all pending
disputes. On June 12, 2014, Dalrymple and her union filed a
third grievance alleging that the police chief had violated the
CBA in June, 2014, by preventing her and other sergeants from
bidding on a shift. On June 16, 2014, Dalrymple submitted a
motion to set aside the dismissal nisi order and to restore the
case to the Federal court calendar. In that motion, Dalrymple
stated without further explanation that "[t]he parties' efforts
6 On April 27, 2014, Dalrymple's union also filed a second grievance on behalf of Dalrymple, two other named officers, and all other affected union members, alleging that, on April 16, 2014, the police chief had violated the CBA by hiring for a newly-created position without properly interviewing or considering qualified candidates, a decision that had the effect of discriminating against officers who were not white men. 7
to resolve the matter have proven unsuccessful." The town
opposed the motion, arguing that good cause did not exist to
return the case to trial because there had been a settlement
agreement that Dalrymple had refused to sign.7 On June 20, 2014,
the Federal court judge denied Dalrymple's motion to set aside
the order of dismissal nisi, "[b]ecause the parties reported
that the case was settled and this request fail[ed] to give any
reasons why the settlement should be set aside."
On February 18, 2015, Dalrymple filed a new charge with the
MCAD alleging, among other things, that the town's actions
giving rise to her April 4, 2014, and June 12, 2014, grievances
were discriminatory and retaliatory, and that the town had not
given her the same swearing-in ceremony on March 31, 2014, as
other sergeants had received.8
7 In her deposition in this matter, Dalrymple testified that her reason for refusing to sign the settlement agreement during that period was that she wanted "[t]o go forward with the trial in the Federal court. She testified: "[A]t that time when my counsel went before the court to ask that it be put back on, I wanted to go forward." In her pro se brief to this court she says, "[When] I agreed to settle and give a release to the Town regarding the Federal District Court matter I was not giving away my future rights regarding any adverse employment actions the Town would take against me under c. [151B] nor was I bound to give up my rights under the Collective Bargaining Agreement." These explanations were not provided to the Federal court when the motion to restore the case was filed.
8 The MCAD dismissed the complaint on August 10, 2015, for lack of probable cause. 8
On or about May 7, 2015, counsel for the plaintiff notified
the town that Dalrymple was prepared to execute the release of
claims; counsel for the town replied that there was no longer a
valid agreement. On May 15, 2015, plaintiff's counsel sent a
demand letter to the town, setting out claims of unfair and
deceptive practices arising from the town's failure to honor the
settlement agreement. On June 8, 2015, the town replied,
denying that it had committed a breach of the agreement and
stating that it was Dalrymple who had committed a breach by
failing to execute a release, by attempting to return the
Federal case to trial, and by litigating claims against the town
regarding events arising before the "effective date" of the
settlement agreement.
On June 17, 2015, Dalrymple's counsel sent an executed
agreement and release to the town, dated June 20, 2014, the date
when the Federal district court denied her motion to set aside
the order of dismissal nisi. The signed agreement and release
included the carve-out added by Dalrymple's lawyers in their
April 17, 2014 draft, but added the June 20, 2014 effective
date. The letter accompanying the agreement and release
encouraged the town to sign and implement the settlement.9 It
did not.
9 On July 30, 2015, Dalrymple's counsel made a final attempt to salvage the settlement. In his letter, counsel stated that 9
Dalrymple then filed suit to enforce the settlement
agreement. On cross motions for summary judgment, a judge of
the Superior Court concluded that Dalrymple had repudiated the
settlement agreement as a matter of law, and the judge entered
judgment for the town. This appeal followed.
Discussion. "We review a grant of summary judgment de novo
to determine whether, viewing the evidence in the light most
favorable to the nonmoving party, 'all material facts have been
established and the moving party is entitled to judgment as a
matter of law.'" Sea Breeze Estates, LLC v. Jarema, 94 Mass.
App. Ct. 210, 215 (2018), quoting Casseus v. Eastern Bus Co.,
478 Mass. 786, 792 (2018). See Mass. R. Civ. P. 56, 365 Mass.
824 (1974). "The moving party bears the burden of affirmatively
demonstrating the absence of a triable issue." Sea Breeze
Estates, LLC, supra, quoting Milliken & Co. v. Duro Textiles,
LLC, 451 Mass. 547, 550 n.6 (2008). "If the moving party
carries its burden, 'the party opposing the motion must respond
and allege specific facts establishing the existence of a
"we concede that [Dalrymple] experienced buyer's remorse and asked the court to relieve her of the agreement by restoring the matter to the trial list," but he argued that "[m]atters . . . remained in limbo until we notified you, in May 2015, that she was now prepared to go forward with the terms we had negotiated in 2014." Dalrymple now claims the statement was unauthorized. The statement is immaterial to our resolution of the case, and we do not consider it. For the reasons explained infra, it was Dalrymple's conduct that compels a judgment for the defendant. 10
genuine issue of material fact.'" Sea Breeze Estates, LLC,
supra, quoting French King Realty Inc. v. Interstate Fire & Cas.
Co., 79 Mass. App. Ct. 653, 659-660 (2011).
1. Repudiation, breach, and judicial estoppel. Both
parties contend that the other repudiated a binding agreement.
We first address whether Dalrymple repudiated the agreement when
she sought to return the case to the trial list. We next
consider whether Dalrymple engaged in a material breach of the
agreement when she failed to sign it for a period of one year,
and when she litigated claims arguably covered by the release.
In the course of the latter discussion we also consider whether
the town was judicially estopped from denying the existence of a
binding agreement at the time that Dalrymple tendered the signed
document.
Dalrymple contends that the town committed a breach of a
binding agreement when it refused to perform after she signed
the settlement agreement and release.10 The town maintains that
Dalrymple engaged in a material breach, thus repudiating the
agreement as a matter of law, when she failed to sign a release
and moved to restore the Federal case to the trial docket on
June 16, 2014.
10Dalrymple retained counsel after filing her appellate brief pro se. New successor counsel filed a reply brief and appeared at oral argument. 11
"Repudiation by one party relieves the other party from
further performance, but such repudiation 'must be a definite
and unequivocal manifestation of intention [not to render
performance].'" Coviello v. Richardson, 76 Mass. App. Ct. 603,
609 (2010), quoting Hammond v. T.J. Litle & Co., 82 F.3d 1166,
1178 (1st Cir. 1996). We pass on the question whether Dalrymple
showed a "definite and unequivocal manifestation" of her intent
not to perform her obligations under the settlement agreement
when she sought to return the Federal case to trial (citation
omitted). Coviello, supra at 609. The record shows that
plaintiff's counsel reported to the town's counsel two possible
reasons for her motion -- a desire to walk away, or a reluctance
to sign a release that included events occurring after the oral
agreement was reached. However, the release (as originally
drafted by the town) would have required her to waive the April
4, 2014 grievance, and there is no indication in the
contemporaneous record whether the town had agreed to the carve-
out at the time Dalrymple's counsel initially proposed it or at
the time Dalrymple sought to restore the case to the docket.
The timing of any agreement regarding the carve-out may be
material, and because we do not have an adequate record on this 12
factual issue, we decline to address whether summary judgment
could be properly entered on this basis.11
Dalrymple did not execute the agreement and release for
over eleven months after the Federal court ruling, however, and
continued to litigate claims that were covered by the release
she proffered. Therein lies the undisputed fact that commands
the result here. Dalrymple contends that the doctrine of
judicial estoppel bars the town from denying the existence of a
contract that it asserted was binding in Federal court, and that
the town was required to perform its obligations under the
settlement agreement once Dalrymple signed the agreement and
11 Neither party has briefed whether, in an employment discrimination case, an employer may lawfully insist that allegedly discriminatory conduct that occurs between the date of an agreement in principle to settle discrimination claims and the time the settlement agreement is executed be released by a general release of claims as of the date of execution. See generally Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 397, 398 (2009), abrogated on other grounds by Joule, Inc. v. Simmons, 459 Mass 88 (2011) (in context of workplace discrimination claims, "considerations of public policy play an important role in the interpretation and enforcement of contracts" and waiver of contractual rights or remedies must be stated in "clear and unmistakable terms"), cited with approval in Crocker v. Townsend Oil Co., 464 Mass. 1, 14-15 (2012) (requiring specificity in releases of statutory wage claims). The town agrees, for purposes of summary judgment, that it was willing to agree to a release that included the carve-out for the April 4, 2014 grievance "and any claims or causes of action arising out of the subject of the April 4, 2014 grievance." The record does not indicate when such an agreement was reached, and the timing of any agreement regarding the carve-out may be material. On this record, therefore, we decline to address the matter. 13
release, no matter how long it took her to sign it. The town
maintains that Dalrymple committed a breach of a material term
of the settlement agreement and release by her months-long
refusal to execute it, thus repudiating the contract. On the
basis of the undisputed facts before us, we conclude that the
town is not estopped from arguing that Dalrymple engaged in a
material breach of the agreement when she failed to execute it
for a period of eleven months after the Federal court declined
to reinstate the case to the trial list, thus repudiating the
agreement.
We set forth the law relevant to material breach and
repudiation, as well as the law of judicial estoppel, as our
analysis of these doctrines is interrelated, resting ultimately
on the reasonableness of Dalrymple's extended failure to sign
the agreement and release. "A material breach of contract by
one party excuses the other party from performance as matter of
law." Hastings Assocs., Inc. v. Local 369 Bldg. Fund, Inc., 42
Mass. App. Ct. 162, 171 (1997). "A repudiation of a contract is
a material breach, and '[i]n order to operate as a discharge of
the other party, the repudiation must be either 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. It must involve
a total and not merely a partial breach." Coviello, 76 Mass. 14
App. Ct. at 609, quoting Bucciero v. Drinkwater, 13 Mass. App.
Ct. 551, 555 (1982).
"[T]wo fundamental elements are widely recognized as
comprising the core of a claim of judicial estoppel. First, the
position being asserted in the litigation must be directly
inconsistent, meaning mutually exclusive of, the position
asserted in a prior proceeding. . . . Second, the party must
have succeeded in convincing the court to accept its prior
position." Holland v. Kantrovitz & Kantrovitz LLP, 92 Mass.
App. Ct. 66, 74 (2017), quoting Otis v. Arbella Mut. Ins. Co.,
443 Mass. 634, 640-641 (2005). "Notwithstanding that general
articulation of the doctrine, there may arise certain instances
where the party's prior position was asserted in good faith, and
where the circumstances provide a legitimate reason -- other
than sheer tactical gain -- for the subsequent change in that
party's position." Holland, supra, quoting Otis, supra at 642.
Assuming, without deciding, that the March, 2014 settlement
agreement (with the April, 2014 carve-out) was enforceable under
a theory of judicial estoppel at or within a reasonable period
of time after the Federal court issued its June 20, 2014 order,
Dalrymple could no longer enforce the settlement agreement and
release some eleven months later because she waited an
unreasonable amount of time to execute it, while simultaneously
litigating claims covered by it. 15
None of the draft agreements included language specifying a
date by which the parties were required to sign. However,
"where a written agreement fails to specify a deadline by which
a contractual obligation or right must be exercised, courts may
infer that the parties intended a 'reasonable' date if this can
be done without changing the essence of the contract." Duff v.
McKay, 89 Mass. App. Ct. 538, 545 (2016), citing Plymouth Port,
Inc. v. Smith, 26 Mass. App. Ct. 572, 575 (1988); Middleborough
v. Middleborough Gas & Elec. Dep't, 47 Mass. App. Ct. 655, 658
(1999). See Lubin & Meyer, P.C. v. Lubin, 427 Mass. 304, 309-
310 (1998); Peterson v. Tremain, 35 Mass. App. Ct. 422, 425
(1993); Charles River Park, Inc. v. Boston Redev. Auth., 28
Mass. App. Ct. 795, 814 (1990) ("in the absence of such a
specific requirement, the time for performance does not extend
forever but only for a reasonable time"). "When, as here, the
facts are undisputed, the question of whether an act was done
within a reasonable time is a question of law for the court."
Middleborough v. Middleborough Gas & Elec. Dep't, 47 Mass. App.
Ct. 655, 658 (1999), citing Stone v. W.E. Aubuchon Co., 29 Mass.
App. Ct. 523, 528 (1990). "What is a reasonable period of time
depends on the nature of the contract, the probable intention of
the parties, and the attendant circumstances." Plymouth Port,
Inc., supra. See Duff, supra; Charles River Park, Inc., supra. 16
In the context of the settlement of the employment dispute
at issue here, delaying the execution of the agreement and
release of claims by over eleven months was unreasonable. 12 The
ongoing employment relationship places a premium on the
certainty associated with a final resolution of claims. The
town negotiated the settlement agreement seeking certainty
regarding its exposure to Dalrymple's claims, and it was denied
an essential and inducing feature of its bargain when Dalrymple
failed to sign the release for nearly one year after the Federal
court denied her motion and after, as Dalrymple claimed in
moving for summary judgment, the parties had agreed to the
carve-out she sought.
The failure to sign the agreement and release in a
reasonable period of time, coupled with the pursuit of
litigation covered by it, constituted a material breach as a
matter of law. "A party to a contract generally is relieved of
[its] obligations under that contract only when the other party
has committed a material breach, that is, 'a breach of "an
essential and inducing feature of the contract[]."'" Duff, 89
Mass. App. Ct. at 547, quoting Lease-It, Inc. v. Massachusetts
12 We do not hold that the passage of eleven months is per se unreasonable. Rather, given the undisputed facts, it was here. We likewise do not decide whether the passage of time or the nature of the covered claims that the plaintiff did litigate would, on their own, be per se unreasonable. 17
Port Auth., 33 Mass. App. Ct. 391, 396 (1992). "[O]nly a
material breach of a contract . . . justifies a party thereto in
rescinding it." Lease-It, Inc., supra, quoting 6 Williston,
Contracts § 829 (3d ed. 1962).
"Whether a breach is material or immaterial normally is a
question for the jury to decide." Lease-It, Inc., 33 Mass. App.
Ct. at 396, citing 6 Williston, Contracts § 841, at 159. See
EventMonitor, Inc. v. Leness, 473 Mass. 540, 546 (2016)
("Whether a party has committed a material breach ordinarily is
a question of fact"). Nevertheless, if "the evidence on the
point is . . . undisputed . . . the court must intervene and
address what is ordinarily a factual question as a question of
law." EventMonitor, Inc., supra, quoting Teragram Corp. v.
Marketwatch.com, Inc., 444 F.3d 1, 11 (1st Cir. 2006). See
Lease-It, Inc., supra (materiality "normally is a question for
the jury to decide. . . . On this record, however, we may
decide the matter on our own"). The facts are undisputed.
Dalrymple's failure to execute a release of claims in a
reasonable amount of time, together with the ongoing litigation,
was a material breach as a matter of law, because it went to "an
essential and inducing" element of the contract; an end to
litigation and the certainty provided by the release constituted
the essential benefit of the bargain for the town (citation
omitted). Duff, 89 Mass. App. Ct. at 547. Dalrymple repudiated 18
the agreement, and the town was relieved of its obligation to
honor it.
As previously noted, Dalrymple filed a pro se MCAD charge
against the town involving conduct predating what she claims to
be the June 20, 2014 effective date, conduct that was not
included in the carve-out for the April 4, 2014 grievance and
related claims.13 For example, her February 18, 2015 MCAD charge
claimed that the town had retaliated against her by declining to
provide a ceremony and a cake when she was sworn in as a
sergeant on March 31, 2014. These events were not included in
the carve-out for the April 4, 2014 grievance.14 She also
referenced the events that gave rise to the June 12, 2014
grievance regarding a different departmental shift bid. This
claim too predated the June 20, 2014 effective date.
Consequently, Dalrymple's maintenance of the above mentioned
portions of the MCAD charge was also a breach of the settlement
13Contrary to the argument in her reply brief, Equal Employment Opportunity Commission v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996), does not hold that an employee may continue to file charges on released claims based on conduct predating the effective date of the release. Rather, that case stands for the proposition that an employee who has released claims may not be precluded from cooperating with an Equal Employment Opportunity Commission investigation. Id. at 744-746.
14Dalrymple attempts to defeat summary judgment by claiming that she thought the cases were related. The two sets of events arose out of different facts and circumstances, as is evident from the face of the MCAD charge and the grievances. 19
agreement. When considered in conjunction with her failure to
sign the release for eleven months, this conduct constituted a
material breach and repudiation of the agreement, which the town
was then no longer obligated to perform.15,16
2. Unjust enrichment. For the reasons well-stated by the
motion judge, equity does not compel the town to honor a
contract that Dalrymple had repudiated. "[I}n light of the
nature of the contract and the circumstances, it would be
inequitable to hold [the town] to an agreement . . . when it
could no longer receive a substantial portion of the benefit it
bargained for." Charles River Park, Inc., 28 Mass. App. Ct. at
816.
Conclusion. Because Dalrymple engaged in a material breach
of the contract, the town was relieved of its obligation to
perform. The town was entitled to summary judgment as a matter
of law.
Dalrymple's inclusion of other background facts predating 15
June 20, 2014, in the MCAD charge did not constitute a breach of the agreement. The MCAD did not treat her recitation of the history of litigation between the parties as a separate violation, and it did not adjudicate any claims based on those background facts. Cf. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 530 n.10 (2001) (time barred events may still be considered as background facts).
We do not decide whether the filing of the April 27 and 16
June 12, 2014 grievances (as opposed to the MCAD charge) constituted a repudiation of the agreement, nor do we decide whether the filing of grievances by the union fell within the scope of the release. 20
Judgment affirmed.