WILMINGTON TRUST NATIONAL ASSOCIATION, Trustee v. MICHAEL J. MCSHARRY & 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

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).

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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

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(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

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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.

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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.

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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.

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