Heard: January 19, 2016.
action commenced in the Superior Court Department on April 9,
motion to enforce settlement and to dismiss the complaint was
heard by Beverly J. Cannone, J., and entry of separate and
final judgment was ordered by her.
Stephen W. Rider for the plaintiffs.
Black for the defendants.
Present: GRAINGER, RUBIN, & MILKEY, JJ.
2010, plaintiffs Daniel and Lisa Duff hired the defendants to
perform a renovation project at their home in Hingham. A
dispute ensued regarding the defendants' workmanship and
their alleged failure to obtain a building permit in a timely
manner. In May of 2012, the Duffs sought redress by
initiating arbitration through the State program created in
accordance with G. L. c. 142A. The following year, on the eve of
the assigned arbitrator's scheduled view of the property,
the parties reached an apparent settlement of their dispute.
Nonetheless, a formal settlement document was never executed
because of a disagreement regarding payment terms. When the
parties reached an impasse in resolving that issue, the Duffs
withdrew their request for arbitration and filed a multicount
action in the Superior Court asserting their underlying
claims. The defendants moved to dismiss the action and to
enforce the settlement. A Superior Court judge allowed that
motion and entered judgment requiring the defendants to pay
the agreed-to amount within ten days. On the Duffs'
appeal, we affirm.
parties' key communications were memorialized in
electronic mail messages (e-mails), copies of which were
submitted to the motion judge.As a result, the essential facts
pertaining to the parties' negotiations are uncontested.
heart of this case is a March 21, 2013, e-mail exchange
between counsel that followed extended and vigorous
settlement discussions. Counsel for the Duffs wrote to
"confirm what I believe our respective clients have
agreed to." He then listed six terms. Key among those
terms were the requirements that the defendants pay the Duffs
$27, 500, and that the parties "exchange mutual general
releases, subject only to the obligations in the settlement
agreement." The list of terms did not specify
when payment of the $27, 500 was due.
Duffs' counsel concluded his e-mail by asking his
counterpart to "confirm that I got this right by return
e-mail." Six minutes later, the defendants' counsel
responded, "Confirmed." Six minutes after that, the
Duffs' counsel sent an e-mail to the assigned arbitrator
canceling the scheduled site visit because "I am pleased
to report that the parties have reached a settlement
agreement." The following morning, the coordinator for
the arbitration program sent an e-mail to express her
happiness "that the parties have settled, " and she
requested clarification whether she should "consider
this your formal notice of settlement or will you mail
written notice of the settlement." Counsel for the Duffs
responded by stating:
"I believe the parties are planning on preparing and
signing a formal settlement agreement and then will file a
stipulation of dismissal, with prejudice, of the claims in
the arbitration. This may take a week or so."
the next two and one-half weeks, the parties sought to
complete a formal settlement document. During that time,
counsel for the Duffs expressed concern over delay, stating
that he did not "want to give the clients too much time
to rethink this." As the Duffs acknowledge, some of the
delay was caused by a medical issue related to the
defendants' counsel's family.
end, the parties agreed on every provision of the final
settlement document save one: when precisely payment of the
$27, 500 was required. The Duffs insisted that payment be
made when the agreement was executed, while the defendants
insisted that they be given some time to complete payment.
Each side asserted that its position was consistent with
customary practice. In addition, each attorney asserted that
his counterpart should have raised the payment issue before
an apparent settlement had been reached if the issue had been
important to his client. As of April 8, 2013, the state of
play was as follows: the defendants were willing to pay a
majority of the money ($17, 500) the following day,  with the
remaining payment to be made three weeks later (April 30,
2013), while the Duffs continued to insist that the full
amount be paid "immediately."
the final issue at a seeming impasse, the Duffs on April 8,
2013, terminated the still-pending arbitration proceeding by
withdrawing their request for arbitration. The following day,
they filed the current action in Superior Court. Notably,
their complaint did not allege that the parties had reached a
settlement agreement, with payment due immediately. Instead,
without mentioning the putative settlement agreement or the
abandoned arbitration proceedings, the complaint simply set
forth the Duffs' underlying claims with regard to the
defendants' work on the renovation project (alleging
violations of G. L. c. 93A, breaches of contract, negligence,
response, the defendants filed what was styled as a motion to
enforce the settlement agreement and to dismiss the
complaint. The motion was supported by an affidavit from
counsel setting forth the history of the negotiations as
memorialized in the trail of e-mails. In opposing the motion,
the Duffs submitted an affidavit from their own counsel that
covered the same uncontested e-mail history. However, counsel
also set forth his view, based on his experience, that
"attorneys presume that payment of settlement proceeds
will be made at the time the settlement agreements are
finalized and releases exchanged" unless the paying
party requests additional time before the settlement is
reached. Daniel Duff himself also executed an affidavit in
which he stated that in authorizing settlement, he had
"understood" that payment would be due when formal
settlement papers were signed and that he otherwise would not
have agreed to settle the case for $27, 500.
Superior Court judge eventually allowed the defendants'
motion and entered judgment requiring the defendants to pay
the settlement amount within ten days. Dissatisfied with that
result, the Duffs appealed.
Procedural posture and standard of review.
begin by reviewing the procedural posture in which this case
has come before us. "A settlement agreement is a
contract and its enforceability is determined by applying
general contract law." Sparrowv.Demonico, 461 Mass. 322, 327 (2012). In entering
judgment enforcing the parties' apparent settlement
agreement, the judge in effect resolved a contract claim put
forward by the defendants even though that claim was
presented by motion, not as a counterclaim. The case law
suggests that such informality is acceptable where
settlements have been reached while litigation is pending.
See Fecteau Benefits Group, Inc. v.Knox, 72 Mass.App.Ct. 204, 211-212 (2008) (affirming
allowance of "motion to enforce settlement
agreement"). See also Fidelity & Guar. Ins.
Co. v.Star Equip. Corp., 541 F.3d 1,
5 (1st Cir. 2008) ("[B]efore the original suit is
dismissed, the party seeking to enforce the [settlement]
agreement may file a motion with the trial court").
Whether this practice is ...