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
22-P-654
DONALD PUOPOLO, JR. 1
vs.
VINCENT DENIETOLIS, trustee. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Donald Puopolo, Jr., on behalf of his father
Donald Puopolo, Sr. (Donald Sr.), trustee of the Donald Puopolo
Revocable Trust (Puopolo trust), appeals from a judgment of
dismissal entered after a Superior Court judge allowed a motion
to enforce a settlement agreement. The plaintiff brought this
action against his uncle, defendant Vincent Denietolis, trustee
of the Vincent E. Denietolis Trust (Denietolis trust),
concerning the management of rental properties that were jointly
owned by the trusts. On the day of the defendant's scheduled
deposition, the parties engaged in discussions culminating in a
settlement to resolve the dispute, and they dictated agreed-on
1 On behalf of Donald Puopolo, Sr., trustee of the Donald Puopolo Revocable Trust. We use plaintiff throughout this opinion to refer to Donald Puopolo, Jr. 2 Of the Vincent E. Denietolis Trust. terms of the settlement, through counsel, on the record at the
deposition. The plaintiff later asserted that he was not bound
by those terms, and the defendant moved to enforce the
settlement agreement. Following a nonevidentiary hearing, the
judge allowed the motion and a judgment subsequently entered.
The plaintiff now argues that the dictated terms were not
sufficiently clear and complete to constitute a binding
agreement, the parties never reached a meeting of the minds on
all material terms of the agreement, and the judge erred in
failing to hold an evidentiary hearing to resolve factual
disputes surrounding the parties' intent. We affirm.
Background. The following facts drawn from the record and
the parties' briefs are undisputed. See Basis Tech. Corp. v.
Amazon.com, Inc., 71 Mass. App. Ct. 29, 30 (2008).
Donald Sr. and defendant Denietolis, who are brothers-in-
law, jointly owned three rental properties in Revere, each
consisting of two units, since the early 1970s. In 2012, they
transferred their interest in the properties to their respective
trusts such that the Puopolo trust and Denietolis trust each own
a one-half interest in the properties as tenants in common.
At the outset of their business relationship, Donald Sr.
and the defendant equally shared in the management and operation
of the properties, and the related profits and expenses
generated by the properties. After Donald Sr.'s health
2 declined, the defendant assumed sole management of the
properties, and the plaintiff began managing his father's
financial affairs under power of attorney and as cotrustee of
the Puopolo trust.
In February 2020, the plaintiff initiated this action,
alleging that his uncle failed to equally share the revenues and
profits generated from the properties, took fees exclusively for
his own benefit, and withheld financial information from the
plaintiff. The defendant counterclaimed, alleging that Donald
Sr. ceased to equally share in the management and operation of
the properties around 1996 and charged below-market rent or no
rent whatsoever to two family members living on the properties.
The defendant also alleged that the plaintiff demanded a free
apartment or the cash equivalent and sought to take out a
mortgage on the properties for his personal benefit.
The plaintiff served a notice of deposition on the
defendant for July 15, 2021. Counsel and the parties appeared
in person with the plaintiff traveling from his home in Florida
to attend. At the suggestion of plaintiff's counsel, the
parties arrived early to discuss property management issues and
potential settlement. After a thirty to forty-minute
discussion, they went on the record with the court reporter. In
lieu of the proceeding with the deposition, plaintiff's counsel
stated:
3 "Going on the record to report a settlement in Suffolk Superior Court civil action number 20-0547. The parties had a settlement discussion and have come to the following terms, which we'll go through on the record, and I can be corrected by the end of that by counsel.
"It will be agreed as follows: The defendant in this action will receive the sum of $600,000 in return for his conveyance of all rights, title, and interest in [the three rental properties, described by address].
"The $600,000 payment will be made as follows: $100,000 shall be remitted on or within 30 days as a cash down payment. The $500,000 remaining balance will be evidenced by a promissory note for a 25-year amortization, seven-year term, five per annum interest. That note will be secured by a first mortgage and assignment of leases and rents. There will be deeds transferring all rights, title, and interest into an LLC to be formed by the plaintiff, and we will so designate in the transfer of documents. That LLC will become the maker of the note."
Plaintiff's counsel then discussed the parties' agreed-on
disposition of this action as well as two other pending actions
as follows. The parties agreed to stipulate to the dismissal
with prejudice of a pending Land Court case "upon completion of
this settlement agreement," and that "the parties will sign
mutual releases of each other with an exclusion of [matters to
be] performed pursuant to this settlement agreement that we are
dictating." The parties also agreed that a separate action
pending between the parties in the Superior Court would survive
the mutual releases, and that a stipulation of dismissal with
prejudice would be filed in this action.
Finally, plaintiff's counsel discussed certain "practical
matters," including payments to be made by the defendant to the
4 plaintiff on or within seven days, the division of the remaining
funds in the management and operating accounts, and the
collection of rents due on August 1st. Plaintiff's counsel also
stated his understanding that the current tenants had not paid
security deposits and discussed the return of the last month's
rent that was collected from some of the tenants. Plaintiff's
counsel explained that those rents would be returned at the time
of conveyance of the properties, "which is expected to be on or
within [thirty] days."
Plaintiff's counsel then inquired if he had missed
anything, and the following exchange occurred:
DEFENDANT'S COUNSEL: "No. Just two observations. One is on the [other Superior Court case] we talked about. Plaintiff in that case, who's the defendant in our current case, reserves the right to bring the case in Florida as well, if he so elects. With respect to the closing, each party will pay the usual and customary fees associated with the transfer. For example, the seller pays the stamp, the deed excise tax in the Commonwealth. The buyer will pay whichever LLC fees he needs to pay."
PLAINTIFF'S COUNSEL: "Each party will bear its [own] costs, fees, and expenses."
DEFENDANT'S COUNSEL: "And attorneys' fees."
PLAINTIFF'S COUNSEL: "Including attorneys' fees. And each party will agree in the stipulation filed with the Court to waive any and all rights of appeal. Counsel, anything else?"
DEFENDANT'S COUNSEL: "No. I think that's it. We said full releases, except as to the existing issues in the other case."
PLAINTIFF'S COUNSEL: "That's correct. Thank you."
5 That same day, after the court reporter left, the parties
continued to discuss permitting and zoning issues, and the need
for maintenance and repairs on the properties.
Between August 11 and 31, 2021, defendant's counsel sent
four e-mail messages (one with a letter attached), and left two
voicemail messages for plaintiff's counsel, inquiring about the
status of the proposed settlement documents that plaintiff's
counsel was to draft. 3 On August 31, 2021, plaintiff's counsel
responded by letter, sent via e-mail message, advising of the
plaintiff's position that the dictated terms did not constitute
a full and final settlement. Plaintiff's counsel noted that no
formal written settlement agreement was drafted, the settlement
was not reported to the court, and no judgment of dismissal
entered. Plaintiff's counsel further stated:
"[T]he transcript does not address several of the issues that go to the very essence of the case such as the ability to make repairs and obtain permits for doing such repairs or for operating the properties as two-family units. The transcript is silent as to building code violations, permitting, the illegal 'shared' utility service with a neighboring property and other fundamental property matters."
On October 25, 2021, the defendant filed a motion to
enforce settlement agreement based on the terms dictated at the
3 The first e-mail message also stated that defendant's counsel was scheduled to leave for vacation the following day and noted that "[t]he 30 days is fast approaching."
6 deposition. In support thereof, the defendant attached an
affidavit from his counsel, a copy of the deposition transcript,
and the July and August 2021 written communications between
counsel. The plaintiff opposed the motion and provided his own
affidavit in response. The judge held a nonevidentiary hearing
on the motion. Both parties filed supplemental briefing after
the hearing as authorized by the judge. The defendant also
produced additional affidavits from his counsel and provided e-
mail messages exchanged with plaintiff's counsel and predecessor
counsel, pertaining to the occupancy permits to operate the
properties as two-family homes as well as the plaintiff's
inspection of the properties. In a written memorandum and
order, the judge allowed the defendant's motion, concluding that
the parties reached an agreement on all material terms and
expressed a present intent to be bound by the agreement. A
judgment dismissing the plaintiff's complaint and the
defendant's counterclaims with prejudice subsequently entered.
This appeal followed.
Discussion. Where, as here, the judge enforced a
settlement agreement without an evidentiary hearing, we treat
the defendant's motion as akin to one for summary judgment. See
Duff v. McKay, 89 Mass. App. Ct. 538, 542 (2016). Thus, we
conduct a de novo review to determine "whether, viewing the
evidence in the light most favorable to the nonmoving party, all
7 material facts have been established and the moving party is
entitled to a judgment as a matter of law." Id. at 542-543,
quoting Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011).
"A settlement agreement is a contract and its
enforceability is determined by applying general contract law."
Sparrow v. Demonico, 461 Mass. 322, 327 (2012). "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." Duff, 89 Mass. App. Ct. at 543,
quoting Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct.
421, 428 (2010).
1. Settlement terms. The plaintiff argues that the terms
of the agreement were not sufficiently complete because the
parties failed to agree on or memorialize certain material terms
that were discussed immediately after they went off the record
with the court reporter. Specifically, the plaintiff asserts
that terms were missing on the issues of zoning and legal
permitting related to the properties' continued use as two-
family residences, the condition of and repairs required for the
properties, and the consequences if the plaintiff could not
obtain the $100,000 cash down payment.
"It is axiomatic that to create an enforceable contract,
there must be agreement between the parties on the material
terms of that contract." Situation Mgt. Sys., Inc. v. Malouf,
8 Inc., 430 Mass. 875, 878 (2000). The question before us is
whether the absence of terms addressing the issues specified by
the plaintiff "meant that significant, material terms were still
to be negotiated" (quotation and citation omitted). Duff, 89
Mass. App. Ct. at 543. If the issues identified concern
"'subsidiary matter[s]' that did not alter the essential nature
of the bargain, then there was a contract that could be
enforced." Id. at 544, quoting McCarthy v. Tobin, 429 Mass. 84,
86 (1999).
Here, the parties described the properties to be
transferred and agreed on the price, the manner of payment, the
execution of mutual releases, the effect of settlement on this
and two other pending matters, the division of the balances in
the remaining business accounts, the disposition of certain
payments previously collected from the tenants, and the parties'
obligations related to closing costs and attorney's fees. The
terms also required each party promptly to act -- the defendant
agreed to make certain payments on or within seven days (which
the defendant did make), 4 and the plaintiff agreed to provide the
down payment within thirty days. The parties accounted for
collection of the August rents and noted that they expected the
properties to be conveyed within thirty days. These dictated
4 The plaintiff asserts that he never cashed the defendant's checks.
9 terms between the parties were sufficiently complete and
definite as a matter of law. See McCarthy, 429 Mass. at 86-87
(offer to purchase binding where it adequately described
property to be sold, deposit requirements, and price to be
paid).
The outstanding issues identified by the plaintiff -- the
status of zoning and permitting as well as the condition of and
necessary repairs to the properties -- are subsidiary matters
that were raised to or by the plaintiff prior to the time that
the parties signaled that an agreement had been reached. See
Goren v. Royal Invs. Inc., 25 Mass. App. Ct. 137, 141 (1987)
(where all significant economic matters resolved, subsidiary
matters included "state of the title, conformance with local
law, condition of the premises, extension provision to allow
seller time to remove title defects, buyer's right of election
to accept a deficient title"). See also Duff, 89 Mass. App. Ct.
at 544 (court may consider "status of things at the time the
parties signaled that an agreement had been reached"). The
plaintiff was notified that the building commissioner was
concerned that use of the properties as multifamily homes was
illegal as early as November 2019 and that the issue persisted
in January 2020. The plaintiff also was aware that the two-
family occupancy permits had not been issued as of November
2020, and that they could not be obtained without installing
10 hardwired smoke and carbon monoxide detectors. With respect to
the condition of the properties, the plaintiff personally
inspected the properties with a property manager in November
2020. As a result of that inspection, the plaintiff relayed his
view to defendant's counsel that "[t]here has been total
neglected repairs and maintenance." Despite the plaintiff's
awareness of these matters, the terms dictated by his own
counsel made no reference to them and no reference to unresolved
or outstanding issues. 5 See Targus Group Int'l, Inc., 76 Mass.
App. Ct. at 430 (sufficiently complete agreement where document
made no reference to unresolved issues or unfinished business).
Therefore, we conclude, the terms and conditions as set forth in
the agreement were sufficiently complete and definite to form an
enforceable contract.
2. Intent to be bound. The plaintiff argues that the
parties did not have a present intent to be bound at the time
the terms were dictated because the parties used the future
tense in some instances, never exchanged drafts of a written
5 We are unpersuaded by the plaintiff's argument that the agreement was incomplete in the absence of a term concerning the consequences if the plaintiff defaulted on his obligations, including if he was unable to obtain the $100,000 down payment. As the motion judge properly noted, the remedy is clear and, thus, the term is not material to the agreement. The defendant would be free to file suit against the plaintiff for breach of contract.
11 agreement, and did not report the settlement to the court. We
disagree.
a. Words used and surrounding circumstances. "To create
an enforceable contract, the parties must have had the intention
to be bound by their agreement at the moment of its formation."
Basis Tech. Corp., 71 Mass. App. Ct. at 39. "To ascertain
intent, a court considers the words used by the parties, the
agreement taken as a whole, and surrounding facts and
circumstances." 6 Id. at 41, quoting Massachusetts Mun. Wholesale
Elec. Co. v. Danvers, 411 Mass. 39, 45–46 (1991).
The transcribed terms here demonstrate that the parties had
the requisite intent to be bound. At the outset, plaintiff's
counsel prefaced his entire recitation of the terms with the
unequivocal and unqualified statement that the parties were
"[g]oing on the record to report a settlement in Suffolk
Superior Court civil action number 20-0547." Thereafter,
plaintiff's counsel did use the future tense in several
instances, including by stating "[i]t will be agreed as follows"
before describing the terms; however, he used "have agreed"
6 The plaintiff asserts that the judge's factual finding on the issue of contemporaneous intent is reviewed for clear error. See Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App. Ct. 204, 212 (2008); Basis Tech. Corp., 71 Mass. App. Ct. at 36. Whether we review the issue of intent for clear error or de novo based on the same record as the motion judge, we would reach the same result.
12 elsewhere and, notably, also referenced "this settlement
agreement that we are dictating." At the end of the discussion,
both counsel expressed satisfaction that the recitation of the
agreed-on terms was complete, without any qualification. See
Basis Tech. Corp., 71 Mass. App. Ct. at 40 (unqualified
acceptance of terms supports intent to be bound). As the
plaintiff notes, the use of the future tense in some instances
may signal that the parties were describing preliminary terms of
a future agreement, see Targus Group Int'l, Inc., 76 Mass. App.
Ct. at 433, but reading the terms as a whole, it is clear that
the use of the future tense here was made in reference to
actions that the parties were required to take under the terms
of the fully-formed settlement agreement.
The circumstances surrounding the dictation of the terms
further evidences the parties' intent to be bound. The parties
are familiar with each other and the properties that are the
subject of this litigation. They were engaged in three separate
lawsuits at the time, two of which pertained to the properties,
and they arrived early (at plaintiff's counsel suggestion) to
discuss settlement. 7 Even then, they only reached agreed-on
7 The pending Land Court case concerned a petition for partition of the properties at issue that was filed by the defendant in this case. Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011) (court may take judicial notice of docket entries and papers filed in separate cases).
13 settlement terms resolving two of those lawsuits after
discussion and in the presence of experienced counsel. The
parties chose to formalize the agreed-on terms by "[g]oing on
the record to report a settlement," in order to ensure that they
accurately were transcribed. The result was that the
defendant's deposition, an event that the plaintiff had traveled
from out of State to attend, was never held. These deliberate
and informed actions support the judge's conclusion that the
parties demonstrated a present intent to be bound. See Targus
Group Int'l, Inc., 76 Mass. App. Ct. at 433 (sophistication of
principals and counsel, and absence of references to unfinished
terms or future mediation sessions, supported intent to be
bound).
b. Further writings. The parties' understanding that the
settlement agreement ultimately would be reduced to writing is
not dispositive on the issue of intent. See Duff, 89 Mass. App.
Ct. at 546 (settlement agreement memorialized in e-mail messages
enforceable where formal documents never executed); Basis Tech.
Corp., 71 Mass. App. Ct. at 39-40 (same). The parties agreed to
all material terms and did not include an invalidating clause or
any language reserving agreement until execution of written
documents. See McCarthy, 429 Mass. at 88 n.3 ("If parties do
not intend to be bound by a preliminary agreement until the
execution of a more formal document, they should employ language
14 such as that suggested by [this court in earlier decisions]");
Targus Group Int'l, Inc., 76 Mass. App. Ct. at 433 (parties
unprepared for firm commitment may include "'invalidating
clause' or reservation of agreement until execution of later
final documents of implementation"). As such, "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" (citation omitted). McCarthy, supra
at 87. See Goren, 25 Mass. App. Ct. at 141-142. Contrast
Rosenfield v. United States Trust Co., 290 Mass. 210, 218 (1935)
(no intent to be bound where party refused to enter into short
form agreement and insisted on having lease drawn).
c. Failure to report settlement to court. The plaintiff
makes much of the fact that the parties did not report the
settlement to the court between the July 15, 2021 deposition and
the August 31, 2021 communication from plaintiff's counsel
contesting the existence of an agreement. A report of
settlement to the court is strong circumstantial evidence of the
parties' intent to be bound, see, e.g., Basis Tech. Corp., 71
Mass. App. Ct. at 44, but is not a prerequisite to creating an
enforceable settlement agreement. See Targus Group Int'l, Inc.,
76 Mass. App. Ct. 433 (settlement reached during prelitigation
mediation); Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App.
15 Ct. 204, 213 (2008) (settlement memorialized in e-mail messages
between counsel).
As a practical matter, defendant's counsel followed up
several times throughout August based on his understanding that
plaintiff's counsel would provide a draft of the written
agreement, and the defendant made the required payments under
the terms of the agreement. Within one month of receiving
notice that the plaintiff disputed the existence of an
agreement, the defendant served the plaintiff with a motion to
enforce the settlement agreement. While this course did not
have the effect of terminating a trial, it did have some effect
on litigation -- namely, it stalled discovery -- and the
defendant acted promptly to resolve the issue. Therefore, the
failure to report the settlement to the court between mid-July
and late August 2021 did not undercut the conclusion that the
parties had a present intent to be bound.
d. Request for evidentiary hearing. Finally, the
plaintiff argues that his affidavit raised genuine issues of
material fact surrounding the parties' intent such that an
evidentiary hearing was required. We disagree.
At most, the plaintiff's affidavit demonstrated that he had
an unexpressed, subjective intent not to be bound at the time
the terms were dictated and that the parties engaged in
discussions about the properties, including their future use as
16 two-family homes, after the court reporter left. Indeed, in his
affidavit, the plaintiff seemingly indicated he only
communicated his view that the agreement was not binding after
he left the deposition, further inspected the properties, and
spoke with the management company. 8
The plaintiff's evidence of his own subjective intent was
irrelevant; the pertinent issue was whether the parties
manifested the objective intent to be bound at the time of
contract formation, notwithstanding either party's subjective
intent. See Brewster Wallcovering Co. v. Blue Mountain
Wallcoverings, Inc., 68 Mass. App. Ct. 582, 596 n.35 (2007).
The parties' further discussions after the court reporter
left were irrelevant, as the parties' intent is assessed at the
moment of formation of the contested agreement (i.e., when the
terms were dictated to the court reporter). See Targus Group
Int'l, Inc., 76 Mass. App. Ct. at 432. The plaintiff, of
course, was free to "angl[e] and prob[e] for incremental
benefits or favors" beyond those agreed to by the parties at the
deposition, but the plaintiff did not condition his commitment
on the defendant's acceptance of any later proposals. Id. at
8 In relevant part, the plaintiff stated, "After trying to get a complete picture of what was needed for these properties to be operated properly, I informed my uncle and his attorney that the alleged settlement was not complete because of these issues and that there was a further need to address these points."
17 434. Therefore, his requests for further settlement discussions
in August 2021 "operated independently of the core agreement and
left it intact." 9 Id.
Because the material facts were undisputed and the question
of intent turned on the language used by the parties in
dictating terms to the court reporter, the motion judge was not
required to hold an evidentiary hearing. See Community Bldrs.,
Inc. v. Indian Motocycle Assocs., 44 Mass. App. Ct. 537, 548
(1998).
Conclusion. The judge correctly concluded that the
settlement terms set forth on the record during the defendant's
deposition were sufficiently complete and definite, and that
both parties manifested an objective intent to be bound by those
terms. Accordingly, we affirm the judgment enforcing the
9 The plaintiff proposed new settlement terms, including on price, in his August 31, 2021 letter.
18 settlement agreement and dismissing the complaint and
counterclaims. 10
Judgment affirmed.
By the Court (Neyman, Desmond & Smyth, JJ. 11),
Clerk
Entered: August 24, 2023.
10 The defendant's request for appellate attorney's fees and costs is denied. 11 The panelists are listed in order of seniority.