JOSEPH CAFARELLI v. BRIAN ARRIGO & Another.

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

24-P-1182

JOSEPH CAFARELLI

vs.

BRIAN ARRIGO & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After an employment-related dispute, the parties entered

into a settlement agreement in 2022 whereby the plaintiff agreed

to release the city of Revere (city) and Brian Arrigo

(collectively, defendants) of all liability, and the parties

stipulated to a dismissal of the plaintiff's claims with

prejudice. A judge of the Superior Court (settlement judge)

approved the settlement agreement and ordered dismissal of the

plaintiff's claims with prejudice. In 2023, the plaintiff filed

a motion to enforce the settlement agreement or reopen the case,

arguing that the settlement agreement never went into effect. A

1 City of Revere.
judge of the Superior Court (motion judge) denied the motion and

the plaintiff appeals. We affirm.

Background. The plaintiff joined the Revere police

department as a police officer in 1991. Between 2012 and 2017,

the plaintiff served as chief of police of the Revere police

department. The plaintiff signed an employment contract when he

began his tenure as chief. Under the employment contract, the

plaintiff retained his civil service position of lieutenant and

was allowed a leave of absence to serve as chief of police.

In 2016, Brian Arrigo, the newly elected mayor of Revere,

sent the plaintiff a letter notifying him that the city did not

intend to renew his contract as chief. Mayor Arrigo noted in

the letter that the plaintiff retained his civil service

position of lieutenant. Mayor Arrigo subsequently informed the

plaintiff that he would not be reinstated to his civil service

position and would be met with disciplinary action if he

attempted to return. Facing this dilemma, the plaintiff left

the police department in 2017, filed for superannuation

retirement, and began receiving a retirement allowance from the

retirement board of Revere (retirement board). See G. L. c. 32,

§ 5 (1) (conditions for receiving superannuation retirement

allowance).

The plaintiff sued the defendants, alleging contract, tort,

and whistleblower claims relating to his separation from the

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police department. Following motion practice, the parties

executed a settlement agreement in 2022. In short, the

defendants agreed to pay the plaintiff $150,000 in exchange for

a release of all claims against the defendants and a stipulated

dismissal of all claims with prejudice. The settlement

agreement earmarked $30,000 to be paid to the Revere Retirement

System as retirement backpay contributions. The plaintiff's aim

was to increase his superannuation retirement allowance to

reflect a retirement date in 2019, which is when the plaintiff

had planned to retire before the dispute arose. The retirement

board was not a party to the settlement agreement, nor was it a

party to the lawsuit. The settlement agreement provided that

"[i]t is expressly understood and agreed by the [plaintiff] that

the [defendants] have not made any guarantees or assertions to

the [plaintiff] as to (1) the approval sought from the

[retirement board]." The settlement agreement contained an

"Effective Date," defined as

"the date . . . upon which both of the following
events have occurred: (a) the Court enters an Order
approving this agreement; and (b) the [retirement
board] approves the agreement and confirms that . . .,
upon receipt of Retirement Backpay, [the plaintiff]
will be credited with the new retirement date set
forth herein."

The settlement judge approved the settlement agreement, and the

stipulated dismissal with prejudice entered.

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Upon the plaintiff's request, the retirement board

calculated the plaintiff's share of retirement backpay

contributions at approximately $22,000, which was paid to the

Revere Retirement System out of the earmarked funds. The

retirement board notified the plaintiff that it would discuss

the matter at its next meeting. The Public Employee Retirement

Administration Commission (PERAC) sent the retirement board an

opinion letter advising that the plaintiff could not be credited

with service unless he repaid to the Revere Retirement System

the sum of superannuation payments he received since filing for

retirement in 2017. That amount exceeded $300,000. In

dispensing this advice, PERAC relied on PERAC Memorandum #28 of

2001, which addressed the effect of wrongful termination

settlements on retirement benefits. The memorandum advised that

when an employee is wrongfully terminated or the employer

wrongfully failed to restore the employee to employment, and the

employee receives both a superannuation retirement allowance and

retroactive back pay through a settlement, he cannot accrue

creditable service without repaying benefits received because

the employee would thereby receive both retirement benefits and

back pay simultaneously, resulting in a windfall.

The retirement board subsequently informed the plaintiff

that he would have to repay the Revere Retirement System to

receive a larger superannuation allowance. The plaintiff

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responded by filing a motion pursuant to Mass. R. Civ. P.

60 (b) (6), 365 Mass. 828 (1974), to enforce the settlement

agreement or to reopen the case to seek further relief against

the city. 2 After a hearing, the motion judge denied the motion,

reasoning that "[t]he parties' dispute . . . seems to

necessarily involve third-party entities not previously named as

defendants . . . such that the anticipated issues raised, far

exceed the subject matter of the current case and are better

suited to resolution in a separate independent proceeding." The

plaintiff appealed.

Discussion. a. Standard of review. We review the motion

judge's ruling on a motion pursuant to Mass. R. Civ. P.

60 (b) (6) for abuse of discretion. Saade v. Wilmington Trust,

Nat'l Ass'n, 494 Mass. 1013, 1014 (2024). Relief under Mass. R.

Civ. P. 60 (b) (6) "is appropriate only in extraordinary

circumstances. Id. at 1014-1015, quoting Owens v. Mukendi, 448

Mass. 66, 71 (2006). An abuse of discretion occurs when a judge

makes a "clear error of judgment . . . such that the decision

falls outside the range of reasonable alternatives." L.L. v.

2 The plaintiff also filed a motion pursuant to Mass.
R. Civ. P. 19, 365 Mass. 765 (1974), to add necessary parties,
namely the retirement board and PERAC. The motion judge denied
the motion, and the plaintiff does not make any arguments in his
brief addressing that motion. See Mass. R. A. P. 16 (a) (9), as
appearing in 481 Mass. 1628 (2019) ("appellate court need not
pass upon questions or issues not argued in the brief").

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Commonwealth, 470 Mass. 169, 185 n.27 (2014). In interpreting

the settlement agreement, the general principles of contract law

and contract interpretation apply. See Warner Ins. Co. v.

Commissioner of Ins., 406 Mass. 354, 360 n.7 (1990).

b. Motion to reopen. 3 On appeal, the plaintiff argues that

the settlement agreement never became effective due to the non-

occurrence of a condition precedent, or in the alternative, due

to the doctrines of impossibility and frustration of purpose.

1. Condition precedent. The plaintiff contends that the

"Effective Date" provision of the settlement agreement formed a

condition precedent that was never satisfied. The "Effective

Date" provision provided that

"[t]he 'Effective Date' of this settlement shall be
the date . . . upon which both of the following events
have occurred: (a) the Court enters an Order approving
this agreement; and (b) the [retirement board]
approves the agreement and confirms that that [sic],
upon receipt of Retirement Backpay, [the plaintiff]

3 Although the plaintiff's motion was styled as a "Motion to
Enforce Settlement Agreement and/or Reopen Case," the
plaintiff's appellate arguments focus solely on the motion to
reopen the case. Thus, we address only that motion. See Mass.
R. A. P. 16 (a) (9). Relatedly, the plaintiff argues that the
motion judge's order denying relief under Mass. R. Civ. P.
60 (b) (6) addressed only the motion to enforce the settlement
agreement and the motion to add necessary parties. He argues
that a remand is necessary for the motion judge to rule in the
first instance on the motion to reopen. We reject this argument
because the motion judge's order cited the docket number for the
plaintiff's "Motion to Enforce Settlement Agreement and/or
Reopen Case," which makes it clear that the motion judge
considered each motion and that his ruling applied to all of
them.

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will be credited with the new retirement date set
forth herein."

Although the motion judge entered an order approving the

settlement agreement, the retirement board did not credit the

plaintiff with the 2019 retirement date upon the receipt of the

roughly $22,000 payment. According to the plaintiff, since the

second condition never occurred, the settlement agreement never

became effective, which would warrant relief under Mass.

R. Civ. P. 60 (b) (6). We are not persuaded by this argument.

"A condition precedent defines an event which must occur

before a contract becomes effective or before an obligation to

perform arises under the contract" (citation omitted). Twin

Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass.

411, 420 (2005). Massachusetts courts generally consider

"[e]mphatic words" necessary to form a condition precedent.

Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39,

46 (1991). The necessary emphatic words include either the term

"condition precedent," or words denoting a clear conditional

relationship such as "if and when." See Charles, Henry &

Crowley Co. v. Home Ins. Co., 349 Mass. 723, 726 (1965) (noting

requirement of phrase "condition precedent" or its equivalent);

Canton v. Thomas, 264 Mass. 457, 459 (1928) (noting that "if and

when" was sufficient to form condition precedent, but "when" was

insufficient).

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The "Effective Date" provision in the settlement agreement

does not include the emphatic words necessary to form a

condition precedent. The provision does not use the term

"condition precedent" nor does it use clear conditional

language. Even if the parties had unambiguously bargained for a

condition precedent, the unfulfilled condition precedent does

not warrant relief from the judgment under Mass. R. Civ. P.

60 (b) (6). When a condition precedent is not satisfied, the

contract may not be enforced. Twin Fires Inv., LLC, 445 Mass.

at 420-421. Yet the settlement agreement has been fully

performed. The city paid the plaintiff $150,000, and in

exchange, the plaintiff released the defendants of all liability

and his claims against the defendants were dismissed with

prejudice. What the plaintiff effectively seeks is to

renegotiate the settlement agreement. In any event, the parties

foresaw that the retirement board might not credit the plaintiff

with the later retirement date because the parties expressly

agreed that the defendants "have not made any guarantees or

assertions to the [plaintiff] as to (1) the approval sought from

the [retirement board]." Assuming arguendo that the unfulfilled

condition precedent excused the parties from performance, it

would not constitute an "extraordinary circumstance" warranting

relief from the judgment. See Saade, 494 Mass. at 1014-1015.

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2. Mutual mistake. The plaintiff contends that under the

doctrine of mutual mistake, the settlement agreement never

became effective, warranting relief under Mass. R. Civ. P.

60 (b) (6). Under the doctrine of mutual mistake, "[w]here

there has been a mistake between the parties as to the subject

matter of a contract, there has been no 'meeting of the minds,'

and the contract is voidable at the election of the party

adversely affected." La Fleur v. C.C. Pierce Co., 398 Mass.

254, 257-258 (1986), quoting Jeselsohn v. Park Trust Co., 241

Mass. 388, 392 (1922). Crucially, "[t]he mistake must involve a

fact capable of ascertainment at the time the contract was

entered into, and not a mere expectation or opinion about future

events." La Fleur, supra at 258.

The plaintiff contends that the parties mutually understood

that the retirement board would credit the plaintiff with

service upon receipt of retirement contributions without

requiring the plaintiff to repay the benefits received. The

plaintiff's assertion amounts to a "mere expectation or opinion"

about what he hoped the retirement board would do. La Fleur,

398 Mass. at 258. The retirement board was neither a party to

the settlement agreement nor a party to the case. See Stone v.

Treasurer of Malden, 309 Mass. 300, 302 (1941); Everett

Retirement Bd. v. Assessors of Everett, 19 Mass. App. Ct. 305,

308 (1985) ("a retirement board established under G. L. c. 32 is

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independent of the city or town whose employees it serves").

Nor did the plaintiff seek an opinion from the retirement board

about whether he could accrue service credit without repaying

benefits received. Without such assurance, the plaintiff's

"mere expectation" did not constitute a mutual mistake.

3. Impossibility and Frustration of Purpose. We briefly

address the plaintiff's argument that the doctrines of

impossibility or frustration of purpose warrant relief from the

judgment. "Performance under a contract may be excused in

limited situations where unanticipated supervening events

require it." Le Fort Enterprises, Inc. v. Lantern 18, LLC, 491

Mass. 144, 150 (2023). Here, no unanticipated event occurred

that made the contract impossible to perform. Rather, the

parties expressly contemplated that the retirement board may not

credit the plaintiff with service credit. The parties agreed

that "[i]t is expressly understood and agreed by the [plaintiff]

that the [defendants] have not made any guarantees or assertions

to the [plaintiff] as to (1) the approval sought from the

[retirement board]." This foreseeable consequence, although

disadvantageous for the plaintiff, does not constitute the kind

of "extraordinary circumstance" required to warrant relief from

a judgment under Mass. R. Civ. P. 60 (b) (6). See Saade, 494

Mass. at 1014-1015.

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Conclusion. The motion judge reasonably concluded that a

separate action against third-party entities could provide the

plaintiff an opportunity to pursue the relief he seeks while

preserving the finality of the judgment against the defendants.

We conclude that the motion judge did not abuse his discretion

in denying the plaintiff's motions under Mass. R. Civ. P.

60 (b) (6).

Order entered September 12,
2024, affirmed.

By the Court (Singh,
D'Angelo & Hodgens, JJ. 4),

Clerk

Entered: August 25, 2025.

4 The panelists are listed in order of seniority.

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