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-441
STONEGATE GROUP MANAGEMENT, LLC
vs.
TUCARD, LLC, & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal concerns a dispute over the defendants',
Tucard, LLC (Tucard), Joseph DiCarlo, Jr., and Frank Polak,
failure to transfer real property in Dracut to the plaintiff,
Stonegate Group Management, LLC. A Superior Court judge granted
partial summary judgment in favor of the plaintiff, awarding
specific performance and declaratory relief, and after a jury
trial on damages, a different Superior Court judge awarded the
plaintiff monetary relief for the defendants' violation of G. L.
1Joseph DiCarlo, Jr., and Frank Polak. Although a defendant in the underlying action, Polak is not a party to this appeal. c. 93A, § 11. 2 The appealing defendants assert that the motion
judge erred by improperly determining that there was an
enforceable contract between the parties, and that the trial
judge erred in awarding c. 93A damages and attorney's fees. We
affirm.
Background. We summarize the material facts, all of which
are undisputed. Trustees of Boston Univ. v. Clough, Harbour &
Assocs. LLP, 495 Mass. 682, 683 (2025).
DiCarlo and Polak are equal members of Tucard, which owns
the property in Dracut. On September 23, 2020, the plaintiff
executed a formal offer to purchase the property for $8.5
million, which was signed by all the parties. The offer
identified the parties, described the property, and provided for
a closing within fifteen days of the end of the due diligence
period. The offer also contained the following language: "Each
of our obligations hereunder are made subject to the execution
of a purchase and sale agreement which shall be mutually
satisfactory to each of us. . . ."
Over the next few months, the parties exchanged several
drafts of a purchase and sale agreement (P&S), and the plaintiff
expended thousands of dollars performing due diligence.
Although the plaintiff learned that the defendants had not
2 Prior to the jury trial, Polak was dismissed from the suit.
2 produced a lease for one of the property's tenants, the
plaintiff was still willing to purchase the property and sign
the P&S. On December 17, 2020, the plaintiff emailed Tucard an
executed copy of a revised P&S, agreeing to all the defendants'
prior suggested revisions. The defendants made no changes to
that P&S. Polak signed the P&S, but DiCarlo refused to sign.
The property was never transferred.
The plaintiff filed a verified complaint in the Superior
Court, seeking declaratory relief pursuant to G. L. c. 231, § 1,
and alleging breach of contract, breach of the covenant of good
faith and fair dealing, promissory estoppel, misrepresentation,
and violation of c. 93A. The plaintiff also requested an
endorsement of memorandum of lis pendens 3 and order for specific
performance. All claims relate to the defendants' failure to
transfer the property.
Discussion. Standards of review. We review the judges'
decisions on the motions for summary judgment and a directed
verdict de novo, assessing each while viewing the evidence in
the light most favorable to the nonmoving party. Donaldson v.
Farrakhan, 436 Mass. 94, 96 (2002). We also review other
questions of law de novo, see Robinhood Fin. LLC v. Secretary of
3 In an unpublished decision, a panel of this court vacated the endorsement of the memorandum of lis pendens and dissolved the lis pendens. See Stonegate Group Mgmt., LLC. v. Tucard, LLC, 101 Mass. App. Ct. 1108 (2022).
3 the Commonwealth, 492 Mass. 696, 707 (2023), and review
decisions concerning attorney's fees for any abuse of
discretion, Blake v. Hometown Am. Communities, Inc., 486 Mass.
268, 284 (2020).
Summary judgment. The motion judge properly granted the
plaintiff partial summary judgment, and the defendants'
contentions that there was no binding agreement are unavailing.
When parties have agreed upon all the material terms in an offer
-- even where there is a provision that the offer was "[s]ubject
to a [purchase and sale] satisfactory to Buyer and Seller" --
the document is a binding agreement. See Ferguson v. Maxim, 96
Mass. App. Ct. 385, 391 (2019), quoting McCarthy v. Tobin, 429
Mass. 84, 85 (1999). Here, the offer accepted by the defendants
contained all necessary material terms -- it identified the
buyer and seller, the property to be conveyed, a purchase price,
a prospective date for the closing, and was supported by
consideration. McCarthy, supra at 88. The defendants have
failed to identify any material term not agreed to in the offer.
That the offer contained conditions and limited uncertainties
does not mean there was no contract. See Lafayette Place
Assocs. v. Boston Redev. Auth., 427 Mass. 509, 518 (1998), cert.
denied, 525 U.S. 1177 (1999).
As to the defendants' claim that the environmental liens
were material to the deal, there is no evidence in the record
4 that the defendants ever expressed concern about the
responsibility for the liens' discharge or ever suggested that
anyone other than the seller would have such responsibility.
The post-acceptance evidence relied on by the defendants as
proof that they never intended to be bound by the offer is
irrelevant; it is the intention of the parties at the time the
offer was executed which is binding, and reserving nonessential
terms for later does not preclude formation of a contract. See
McCarthy, 429 Mass. at 87. The motion judge's partial grant of
summary judgment for the plaintiff and denial of the defendants'
cross-motion for summary judgment were appropriate. 4
Directed verdict. The defendants assert that the trial
judge erred in denying their motion for a directed verdict on
the c. 93A claim, claiming here that "none of th[e] evidence
bespeaks misrepresentation by DiCarlo or a c. 93A violation
committed willfully or knowingly." At trial, however, the
defendants limited their motion to arguments that "[m]ere breach
of contract alone in the form of terminating negotiations is
insufficient to prove violation of c. 93A" and that the
plaintiff "cannot prove any resulting loss of money or
4 The defendants claim several errors deriving from the summary judgment decision, regarding the denial of their motion to reconsider and the ultimate award of attorney's fees, injunction, and attachment. Since we conclude that summary judgment was appropriate, see supra, there was no error in these decisions.
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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-441
STONEGATE GROUP MANAGEMENT, LLC
vs.
TUCARD, LLC, & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal concerns a dispute over the defendants',
Tucard, LLC (Tucard), Joseph DiCarlo, Jr., and Frank Polak,
failure to transfer real property in Dracut to the plaintiff,
Stonegate Group Management, LLC. A Superior Court judge granted
partial summary judgment in favor of the plaintiff, awarding
specific performance and declaratory relief, and after a jury
trial on damages, a different Superior Court judge awarded the
plaintiff monetary relief for the defendants' violation of G. L.
1Joseph DiCarlo, Jr., and Frank Polak. Although a defendant in the underlying action, Polak is not a party to this appeal. c. 93A, § 11. 2 The appealing defendants assert that the motion
judge erred by improperly determining that there was an
enforceable contract between the parties, and that the trial
judge erred in awarding c. 93A damages and attorney's fees. We
affirm.
Background. We summarize the material facts, all of which
are undisputed. Trustees of Boston Univ. v. Clough, Harbour &
Assocs. LLP, 495 Mass. 682, 683 (2025).
DiCarlo and Polak are equal members of Tucard, which owns
the property in Dracut. On September 23, 2020, the plaintiff
executed a formal offer to purchase the property for $8.5
million, which was signed by all the parties. The offer
identified the parties, described the property, and provided for
a closing within fifteen days of the end of the due diligence
period. The offer also contained the following language: "Each
of our obligations hereunder are made subject to the execution
of a purchase and sale agreement which shall be mutually
satisfactory to each of us. . . ."
Over the next few months, the parties exchanged several
drafts of a purchase and sale agreement (P&S), and the plaintiff
expended thousands of dollars performing due diligence.
Although the plaintiff learned that the defendants had not
2 Prior to the jury trial, Polak was dismissed from the suit.
2 produced a lease for one of the property's tenants, the
plaintiff was still willing to purchase the property and sign
the P&S. On December 17, 2020, the plaintiff emailed Tucard an
executed copy of a revised P&S, agreeing to all the defendants'
prior suggested revisions. The defendants made no changes to
that P&S. Polak signed the P&S, but DiCarlo refused to sign.
The property was never transferred.
The plaintiff filed a verified complaint in the Superior
Court, seeking declaratory relief pursuant to G. L. c. 231, § 1,
and alleging breach of contract, breach of the covenant of good
faith and fair dealing, promissory estoppel, misrepresentation,
and violation of c. 93A. The plaintiff also requested an
endorsement of memorandum of lis pendens 3 and order for specific
performance. All claims relate to the defendants' failure to
transfer the property.
Discussion. Standards of review. We review the judges'
decisions on the motions for summary judgment and a directed
verdict de novo, assessing each while viewing the evidence in
the light most favorable to the nonmoving party. Donaldson v.
Farrakhan, 436 Mass. 94, 96 (2002). We also review other
questions of law de novo, see Robinhood Fin. LLC v. Secretary of
3 In an unpublished decision, a panel of this court vacated the endorsement of the memorandum of lis pendens and dissolved the lis pendens. See Stonegate Group Mgmt., LLC. v. Tucard, LLC, 101 Mass. App. Ct. 1108 (2022).
3 the Commonwealth, 492 Mass. 696, 707 (2023), and review
decisions concerning attorney's fees for any abuse of
discretion, Blake v. Hometown Am. Communities, Inc., 486 Mass.
268, 284 (2020).
Summary judgment. The motion judge properly granted the
plaintiff partial summary judgment, and the defendants'
contentions that there was no binding agreement are unavailing.
When parties have agreed upon all the material terms in an offer
-- even where there is a provision that the offer was "[s]ubject
to a [purchase and sale] satisfactory to Buyer and Seller" --
the document is a binding agreement. See Ferguson v. Maxim, 96
Mass. App. Ct. 385, 391 (2019), quoting McCarthy v. Tobin, 429
Mass. 84, 85 (1999). Here, the offer accepted by the defendants
contained all necessary material terms -- it identified the
buyer and seller, the property to be conveyed, a purchase price,
a prospective date for the closing, and was supported by
consideration. McCarthy, supra at 88. The defendants have
failed to identify any material term not agreed to in the offer.
That the offer contained conditions and limited uncertainties
does not mean there was no contract. See Lafayette Place
Assocs. v. Boston Redev. Auth., 427 Mass. 509, 518 (1998), cert.
denied, 525 U.S. 1177 (1999).
As to the defendants' claim that the environmental liens
were material to the deal, there is no evidence in the record
4 that the defendants ever expressed concern about the
responsibility for the liens' discharge or ever suggested that
anyone other than the seller would have such responsibility.
The post-acceptance evidence relied on by the defendants as
proof that they never intended to be bound by the offer is
irrelevant; it is the intention of the parties at the time the
offer was executed which is binding, and reserving nonessential
terms for later does not preclude formation of a contract. See
McCarthy, 429 Mass. at 87. The motion judge's partial grant of
summary judgment for the plaintiff and denial of the defendants'
cross-motion for summary judgment were appropriate. 4
Directed verdict. The defendants assert that the trial
judge erred in denying their motion for a directed verdict on
the c. 93A claim, claiming here that "none of th[e] evidence
bespeaks misrepresentation by DiCarlo or a c. 93A violation
committed willfully or knowingly." At trial, however, the
defendants limited their motion to arguments that "[m]ere breach
of contract alone in the form of terminating negotiations is
insufficient to prove violation of c. 93A" and that the
plaintiff "cannot prove any resulting loss of money or
4 The defendants claim several errors deriving from the summary judgment decision, regarding the denial of their motion to reconsider and the ultimate award of attorney's fees, injunction, and attachment. Since we conclude that summary judgment was appropriate, see supra, there was no error in these decisions.
5 property." The defendants' arguments raised here are thus
waived. See Bonofiglio v. Commercial Union Ins. Co., 411 Mass.
31, 34 (1991) (motion for directed verdict must state specific
grounds for motion). 5
Damages. The defendants assert that the plaintiff's award
of specific performance and damages was incorrect as a matter of
law, claiming that the two remedies are mutually exclusive. We
disagree.
Generally, a party aggrieved by a breach of contract is
entitled to either specific performance or an award of damages,
not both. See K.G.M. Custom Homes, Inc. v. Prosky, 468 Mass.
247, 256 (2014). See also Connihan v. Thompson, 111 Mass. 270,
271-272 (1873) (remedies of specific performance and damages for
breach are "alternative remedies, but not inconsistent" as both
affirm validity of contract; plaintiff may be required to elect
which he will further prosecute). At times, however, a monetary
award may accompany specific performance. Here, the trial judge
awarded damages pursuant to his finding that the defendant
violated c. 93A; we have held such damages proper when awarded
alongside specific performance to a party aggrieved by a breach
5 The defendants also assert that the trial judge erred in refusing to adopt the jury's advisory findings on the c. 93A claim. It was within the trial judge's discretion to reserve this claim from the jury, and we find no error in his decision. Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 22 n.31 (1997), cert. denied, 522 U.S. 1015 (1997).
6 of contract, and we likewise affirm them here. See Motsis v.
Ming's Supermkt., Inc., 96 Mass. App. Ct. 371, 379-381 (2019).
Amended judgment affirmed.
By the Court (Desmond, D'Angelo & Smyth, JJ. 6),
Clerk
Entered: February 9, 2026.
6 The panelists are listed in order of seniority.