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
23-P-43
WILMINGTON TRUST NATIONAL ASSOCIATION, trustee,1
vs.
MICHAEL J. MCSHARRY & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A defendant, Michael J. McSharry, appeals from an order
finding a settlement agreement resolving the underlying
postforeclosure summary process action unenforceable, as well as
from the denial of a motion to reconsider that order.
Concluding that we have jurisdiction because the orders appealed
from are not interlocutory, and that the enforceability of the
settlement agreement survives a scrivener's error, we vacate and
remand.
1. Appellate jurisdiction. The plaintiff argues that we
lack jurisdiction over this appeal because the orders appealed
from are interlocutory, and requests for review of interlocutory
orders must be taken to a single justice, rather than to a
1 Of the MFRA Trust 2014-2. 2 Carol A. McSharry. panel. "Generally, a litigant is entitled to appellate review
only of a final judgment, not of an interlocutory ruling."
Linder v. Pollak, 102 Mass. App. Ct. 386, 390 (2023), quoting
Lynch v. Crawford, 483 Mass. 631, 634 (2019). See CP 200 State,
LLC v. CIEE, Inc., 488 Mass. 847, 847-848 (2022) (interlocutory
order on motion to enforce settlement agreement not immediately
appealable under doctrine of present execution). Postjudgment
orders, on the other hand, are generally immediately appealable.
See, e.g., Lasher v. Leslie-Lasher, 474 Mass. 1003, 1004 (2016)
("ordinary appellate process" allows "an appeal to a panel of
the Appeals Court from the postjudgment order"). Here, the
orders are immediately appealable as postjudgment orders because
they entered after final judgment entered, which occurred on
February 19, 2020, when the motion judge allowed summary
judgment for the plaintiff on both possession of the property
and costs.3
2. Settlement agreement. a. Standard of review. Where,
as here, parties to litigation have entered into a settlement
3 Because we discern that this is an appeal from postjudgment orders, we need not address the plaintiff's argument that the time to file a petition for an interlocutory appeal has run. Nonetheless, we note that a timely appeal from a final judgment generally allows review of any prior interlocutory orders. See Mass. R. A. P. 3 (a) (2), as appearing in 481 Mass. 1603 (2019) ("A party need not claim an appeal from an interlocutory order to preserve the party's right to have such order reviewed upon appeal from the final judgment"). Accord Jarosz v. Palmer, 436 Mass. 526, 534 (2002).
2 agreement for the underlying action, a request for enforcement
of that agreement may be sought through a motion for
enforcement. See Duff v. McKay, 89 Mass. App. Ct. 538, 542
(2016). Although judges "enjoy substantial leeway" in resolving
such motions, an order issued without an evidentiary hearing
"should be treated as akin to one for summary judgment." Id.
Accordingly, we review "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 a judgment as a matter of law.'" Id. at 542-543,
quoting Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011).
b. Enforceability of the agreement. "It is axiomatic that
to create an enforceable contract, there must be agreement
between the parties on the material terms of that contract, and
the parties must have a present intention to be bound by that
agreement." Goddard v. Goucher, 89 Mass. App. Ct. 41, 47
(2016), quoting Situation Mgt. Sys. Inc. v. Malouf, Inc., 430
Mass. 875, 878 (2000). "If the language of a written instrument
does not reflect the true intent of both parties, the mutual
mistake is reformable." Caron v. Horace Mann Ins. Co., 466
Mass. 218, 222 (2013), quoting Polaroid Corp. v. Travelers
Indem. Co., 414 Mass. 747, 756 (1993). "To be entitled to
reformation, a party must present full, clear, and decisive
proof of mistake." Lordi v. Lordi, 443 Mass. 1006, 1006-1007
3 (2005), quoting Polaroid Corp., supra. The defendant has met
that burden here.
Both parties agree that the property sale price under their
settlement agreement is six hundred thousand dollars, as twice
listed in that settlement agreement, despite the single
scrivener's error listing a net sales price of "Six Hundred and
Fifty Thousand Dollars ($600,000.00)." The parties' agreement,
together with the otherwise consistent use of six hundred
thousand dollars as the price term, is enough to establish
"full, clear, and decisive proof of mistake." Lordi, 443 Mass.
at 1006-1007, quoting Polaroid Corp., 414 Mass. at 756. See
Ciampa v. Bank of Am., 88 Mass. App. Ct. 28, 31 (2015), quoting
Pond v. Pond, 424 Mass. 894, 898 (1997) ("Designating a person
who does not exist as the intended beneficiary of a trust is,
without more, 'clear and decisive proof of mistake due to
scrivener's error'"). Therefore, the motion judge's finding
"that the parties never reached a meeting of the minds" as to
the purchase price cannot stand.
The plaintiff raises two other theories as to why the
settlement agreement is not an enforceable contract. First, the
plaintiff argues that the settlement agreement is "defective"
because two third parties did not sign it. The fact that the
settlement agreement is not signed by the third parties may mean
that it is not enforceable against those third parties, see
4 G. L. c. 259, § 1, but it does not impact whether it is
enforceable against the plaintiff, who was a signatory.4
Contracts routinely state duties of the contracting parties that
may be influenced by or dependent on the actions of third
parties, but that does not make them unenforceable against the
contracting parties.
The plaintiff further argues that the settlement agreement
was not sufficiently definite to be a contract because it did
not identify the anticipated third-party purchaser or
specifically identify the "closing costs" that would be assigned
to that anticipated third-party purchaser in a purchase and sale
agreement. The agreement, however, was not for the sale of the
property; it was a settlement agreement of the summary process
action that anticipated the sale of the property if, and only
if, certain conditions were met. It required the defendants to
provide the plaintiff "with a third party purchase and sale
agreement" that met specific conditions, including that the
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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
23-P-43
WILMINGTON TRUST NATIONAL ASSOCIATION, trustee,1
vs.
MICHAEL J. MCSHARRY & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A defendant, Michael J. McSharry, appeals from an order
finding a settlement agreement resolving the underlying
postforeclosure summary process action unenforceable, as well as
from the denial of a motion to reconsider that order.
Concluding that we have jurisdiction because the orders appealed
from are not interlocutory, and that the enforceability of the
settlement agreement survives a scrivener's error, we vacate and
remand.
1. Appellate jurisdiction. The plaintiff argues that we
lack jurisdiction over this appeal because the orders appealed
from are interlocutory, and requests for review of interlocutory
orders must be taken to a single justice, rather than to a
1 Of the MFRA Trust 2014-2. 2 Carol A. McSharry. panel. "Generally, a litigant is entitled to appellate review
only of a final judgment, not of an interlocutory ruling."
Linder v. Pollak, 102 Mass. App. Ct. 386, 390 (2023), quoting
Lynch v. Crawford, 483 Mass. 631, 634 (2019). See CP 200 State,
LLC v. CIEE, Inc., 488 Mass. 847, 847-848 (2022) (interlocutory
order on motion to enforce settlement agreement not immediately
appealable under doctrine of present execution). Postjudgment
orders, on the other hand, are generally immediately appealable.
See, e.g., Lasher v. Leslie-Lasher, 474 Mass. 1003, 1004 (2016)
("ordinary appellate process" allows "an appeal to a panel of
the Appeals Court from the postjudgment order"). Here, the
orders are immediately appealable as postjudgment orders because
they entered after final judgment entered, which occurred on
February 19, 2020, when the motion judge allowed summary
judgment for the plaintiff on both possession of the property
and costs.3
2. Settlement agreement. a. Standard of review. Where,
as here, parties to litigation have entered into a settlement
3 Because we discern that this is an appeal from postjudgment orders, we need not address the plaintiff's argument that the time to file a petition for an interlocutory appeal has run. Nonetheless, we note that a timely appeal from a final judgment generally allows review of any prior interlocutory orders. See Mass. R. A. P. 3 (a) (2), as appearing in 481 Mass. 1603 (2019) ("A party need not claim an appeal from an interlocutory order to preserve the party's right to have such order reviewed upon appeal from the final judgment"). Accord Jarosz v. Palmer, 436 Mass. 526, 534 (2002).
2 agreement for the underlying action, a request for enforcement
of that agreement may be sought through a motion for
enforcement. See Duff v. McKay, 89 Mass. App. Ct. 538, 542
(2016). Although judges "enjoy substantial leeway" in resolving
such motions, an order issued without an evidentiary hearing
"should be treated as akin to one for summary judgment." Id.
Accordingly, we review "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 a judgment as a matter of law.'" Id. at 542-543,
quoting Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011).
b. Enforceability of the agreement. "It is axiomatic that
to create an enforceable contract, there must be agreement
between the parties on the material terms of that contract, and
the parties must have a present intention to be bound by that
agreement." Goddard v. Goucher, 89 Mass. App. Ct. 41, 47
(2016), quoting Situation Mgt. Sys. Inc. v. Malouf, Inc., 430
Mass. 875, 878 (2000). "If the language of a written instrument
does not reflect the true intent of both parties, the mutual
mistake is reformable." Caron v. Horace Mann Ins. Co., 466
Mass. 218, 222 (2013), quoting Polaroid Corp. v. Travelers
Indem. Co., 414 Mass. 747, 756 (1993). "To be entitled to
reformation, a party must present full, clear, and decisive
proof of mistake." Lordi v. Lordi, 443 Mass. 1006, 1006-1007
3 (2005), quoting Polaroid Corp., supra. The defendant has met
that burden here.
Both parties agree that the property sale price under their
settlement agreement is six hundred thousand dollars, as twice
listed in that settlement agreement, despite the single
scrivener's error listing a net sales price of "Six Hundred and
Fifty Thousand Dollars ($600,000.00)." The parties' agreement,
together with the otherwise consistent use of six hundred
thousand dollars as the price term, is enough to establish
"full, clear, and decisive proof of mistake." Lordi, 443 Mass.
at 1006-1007, quoting Polaroid Corp., 414 Mass. at 756. See
Ciampa v. Bank of Am., 88 Mass. App. Ct. 28, 31 (2015), quoting
Pond v. Pond, 424 Mass. 894, 898 (1997) ("Designating a person
who does not exist as the intended beneficiary of a trust is,
without more, 'clear and decisive proof of mistake due to
scrivener's error'"). Therefore, the motion judge's finding
"that the parties never reached a meeting of the minds" as to
the purchase price cannot stand.
The plaintiff raises two other theories as to why the
settlement agreement is not an enforceable contract. First, the
plaintiff argues that the settlement agreement is "defective"
because two third parties did not sign it. The fact that the
settlement agreement is not signed by the third parties may mean
that it is not enforceable against those third parties, see
4 G. L. c. 259, § 1, but it does not impact whether it is
enforceable against the plaintiff, who was a signatory.4
Contracts routinely state duties of the contracting parties that
may be influenced by or dependent on the actions of third
parties, but that does not make them unenforceable against the
contracting parties.
The plaintiff further argues that the settlement agreement
was not sufficiently definite to be a contract because it did
not identify the anticipated third-party purchaser or
specifically identify the "closing costs" that would be assigned
to that anticipated third-party purchaser in a purchase and sale
agreement. The agreement, however, was not for the sale of the
property; it was a settlement agreement of the summary process
action that anticipated the sale of the property if, and only
if, certain conditions were met. It required the defendants to
provide the plaintiff "with a third party purchase and sale
agreement" that met specific conditions, including that the
third-party purchaser would "pay all closing costs, if any, not
including transfer tax, pro-rated real estate tax and seller
attorney fees." Under the agreement, the defendants could pick
4 Elizabeth Taylor, the "Eviction Manager" for Radian Real Estate Management LLC, signed the contract on behalf of Radian Real Estate Management LLC as "attorney-in-fact" for the plaintiff. The plaintiff does not challenge her authority to sign the contract on its behalf.
5 any third-party purchaser willing to meet the terms set forth in
the agreement, so the contract did not need to identify a
specific person. Similarly, the "closing costs, if any" did not
need to be specifically identified in the contract because all
of the costs except the costs specifically excluded were
assigned to the purchaser.
Accordingly, we vacate the motion judge's order finding
that the settlement agreement was not an enforceable contract
and remand the matter for further proceedings. As noted, the
judge has discretion in setting the form of such proceedings,
see Duff, 89 Mass. App. Ct. at 542, which are commonly resolved
through either summary judgment, see, e.g., Basis Tech. Corp. v.
Amazon.com, Inc., 71 Mass. App. Ct. 29, 43 (2008), or an
evidentiary hearing, see, e.g., Sparrow v. Demonico, 461 Mass.
322, 324 (2012). We leave it to the motion judge on remand to
determine whether either party breached any material terms of
the contract, whether any defenses apply, and what remedies, if
any, are appropriate. These questions have not been briefed
adequately on appeal, and therefore they are not appropriate for
us to decide.
6 3. Conclusion. We vacate the order docketed on October
15, 2021, and remand the matter for further proceedings
consistent with this decision.
So ordered.
By the Court (Ditkoff, Englander & Walsh, JJ.5),
Assistant Clerk
Entered: February 15, 2024.
5 The panelists are listed in order of seniority.