NEW ENGLAND PRESERVATION AND DEVELOPMENT LLC v. TOWN OF FAIRHAVEN (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, New England Preservation and Development, LLC, and Zachary Mayo, appeal from a judgment of dismissal entered after a Superior Court judge allowed a motion of the defendant town of Fairhaven (town) to enforce a settlement agreement. We affirm.

Background. The plaintiffs filed this action against the town in 2020, asserting claims for breach of contract and breach of the implied covenant of good faith and fair dealing. Extensive litigation followed, including an appeal decided by another panel of this court.² After the town served the plaintiffs with its motion for summary judgment on December 6, 2024, counsel for the parties exchanged e-mail messages about a possible settlement. On January 7, 2025, the town asked the plaintiffs to “put your proposal in a brief email that I can share with the” town's select board. In an e-mail message headed “settlement communication,” the plaintiffs responded:

“Yes. My clients propose the parties agree to the following:

“1. The Select Board will meet with [the plaintiffs’ representatives] regarding the Rogers School project at a mutually convenient time within the next 30 days for an agreed minimum amount of time.

“2. After that meeting takes place, the parties will file a stipulation of dismissal in the litigation.”

The plaintiffs’ e-mail message further stated that “[t]hese terms would be memorialized in a very simple Settlement Agreement, subject to the parties agreeing on other standard terms.” On January 8, the parties moved to extend the scheduling order, advising the judge that they “had substantial discussions concerning a potential settlement of this action and counsel believe that this matter may be resolved shortly without further court involvement.” On January 14, the town notified the plaintiffs that the select board had “voted last night to move forward with your settlement proposal.” On January 29, the parties agreed to hold the meeting with the plaintiffs’ representatives and the select board on February 24. The town sent the plaintiffs a draft written agreement, but it was never executed. Neither the plaintiffs nor their representatives attended the select board meeting on February 24.

The town filed its motion for summary judgment on March 19, 2025, which the judge denied on July 9. The town then filed a motion to enforce the settlement agreement, arguing that the plaintiffs’ January 7, 2025 e-mail message created a binding contract and that the town had “upheld its end of the bargain.” Following a nonevidentiary hearing, a second judge allowed the town's motion, concluding that the “parties reached a settlement agreement as to all essential terms” and that the town “performed the terms of the agreement by scheduling a meeting at the plaintiff's convenience.” A judgment of dismissal followed, and the plaintiffs appealed.

Discussion. “A settlement agreement is a contract and its enforceability is determined by applying general contract law.” Duff v. McKay, 89 Mass. App. Ct. 538, 541 (2016), quoting Sparrow v. Demonico, 461 Mass. 322, 327 (2012). We review de novo the judge's legal determinations, including whether the parties’ terms are sufficiently clear and complete or whether an ambiguity exists within the agreement. See Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008). However, “[t]he factual finding of [a] contemporaneous intent to be bound ․ receives review under the ‘clearly erroneous’ standard.” Id. Given the absence of an evidentiary hearing, we treat the town's motion to enforce as “akin to one for summary judgment” and thus review the allowance of the motion “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” (quotation and citation omitted). Duff, supra at 542-543.

We agree with the judge that the parties entered into an enforceable settlement agreement. To be considered enforceable, an “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.” Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). Here, the plaintiffs’ January 7, 2025 email message set forth the essential terms of the agreement: a meeting between the plaintiffs’ representatives and the select board “at a mutually convenient time,” to be followed by a stipulation of dismissal. The town manifested its agreement to those terms through a vote of approval by its select board and by setting “a mutually convenient time” for the meeting.

The January 7, 2025 e-mail message did not, as the plaintiffs argue, refer to “unresolved issues or unfinished business” indicative of an incomplete agreement. Rather, the message stated that “[t]hese terms” -- i.e., a meeting followed by a stipulated dismissal -- “would be memorialized in a very simple” agreement that would also contain “other standard terms.” The parties thus contemplated that the memorialization would serve “as a polished memorandum of an already binding contract,” rather than one altering or adding material terms. Goren v. Royal Invs., Inc., 25 Mass. App. Ct. 137, 140 (1987). See Duff, 89 Mass. App. Ct. at 544, quoting McCarthy v. Tobin, 429 Mass. 84, 86 (1999) (agreement can be enforced if absent term is “ ‘subsidiary matter[ ]’ that [does] not alter the essential nature of the bargain”); Targus, 76 Mass. App. Ct. at 430 (agreement complete where text and circumstances showed that “the parties were progressing from the negotiation of terms to the details of implementation”).

The plaintiffs contend that the agreement was incomplete because neither it nor the town's subsequent draft written agreement included “substantive terms related to final disposition of the Property.” The question “whether an absent term renders an agreement fatally indeterminate ․ is to be addressed [in part] based on the status of things at the time the parties signaled that an agreement had been reached.” Duff, 89 Mass. App. Ct. at 544. The January 7, 2025 e-mail message stated only that the parties would meet “regarding the Rogers School project.” To the extent the plaintiffs assert that they “expected” substantive terms “to be negotiated at the meeting,” they failed to convey that expectation in their e-mail correspondence with the town. At no point did the plaintiffs suggest that their agreement to stipulate to dismissal was contingent on the parties’ ability to reach agreement on other substantive issues at the scheduled meeting.

We are similarly unpersuaded by the plaintiffs’ contention that a “condition precedent” to the agreement was unfulfilled “because the proposed meeting between the Select Board and [the plaintiffs’ representatives] never happened.” “A condition precedent defines an event which must occur before a contract becomes effective or before an obligation to perform arises under the contract.” Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 45 (1991). A condition precedent may be expressly created by the parties, usually through the use of “[e]mphatic words” in the contract (citation omitted). Id. at 46. A condition precedent also may be implied in fact if “the intent of the parties to create one is clearly manifested in the contract as a whole.” Id. See Restatement (Second) of Contracts § 226, comments a & c (1981). The parties’ intent here was to set a meeting between the plaintiffs’ representatives and the select board at “a mutually convenient time,” and then “file a stipulation of dismissal in the litigation.” As the judge found, the town upheld its end of the bargain by scheduling the meeting for February 24, 2025. The plaintiffs’ subsequent decision not to send their representatives to that meeting did not render the agreement ineffective or relieve the plaintiffs of their obligation to perform.

Nor did the judge err in finding that the parties intended to be bound by the settlement agreement. To determine intent to be bound, “a court considers the words used by the parties, the agreement taken as a whole, and surrounding facts and circumstances.” Basis Tech. Corp., 71 Mass. App. Ct. at 41, quoting Massachusetts Mun. Wholesale Elec. Co., 411 Mass. at 45-46. The parties’ communications indicate an intent to be bound. After the town asked the plaintiffs to propose a settlement, they responded with the two-point agreement in the January 7, 2025 e-mail message. The parties informed the judge the next day that they had “a potential settlement of this action” and that “this matter may be resolved shortly without further court involvement.” The town informed the plaintiffs on January 14 that the select board had voted “to move forward with your settlement proposal,” and the parties agreed on a date and time for the meeting. That the town's subsequent draft written agreement “contained no substantive terms related to final disposition of the Property” is immaterial because, as discussed, the parties’ e-mail correspondence did not mention any substantive terms that remained unresolved.

Finally, the town did not waive its rights under the settlement agreement by not raising the issue in connection with its motion for summary judgment. A settlement agreement reached while litigation is pending is typically enforced, as here, through a party's motion to enforce. See Duff, 89 Mass. App. Ct. at 541-542; Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App. Ct. 204, 211 (2008). The town served its summary judgment motion on the plaintiffs prior to engaging in settlement correspondence, and its decision to file that motion after the plaintiffs failed to perform under the settlement agreement did not preclude it from later enforcing its rights under that agreement through a motion to enforce.

Judgment affirmed.

FOOTNOTES

2.   See New England Preservation & Dev., LLC v. Fairhaven, 101 Mass. App. Ct. 1113 (2022) (unpublished memorandum and order). The Supreme Judicial Court denied further appellate review. See New England Preservation & Dev., LLC v. Fairhaven, 490 Mass. 1108 (2022).