K & K Development, Inc. v. Andrews

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

22-P-851 Appeals Court

K & K DEVELOPMENT, INC. vs. ZACHARY ANDREWS, individually and
as trustee.1

No. 22-P-851.

Essex. May 10, 2023. - September 15, 2023.

Present: Meade, Blake, & Brennan, JJ.

Rules of the Superior Court. Practice, Civil, Findings by
judge. Agency, Scope of authority or employment. Real
Property, Sale, Purchase and sale agreement, Specific
performance. Contract, Sale of real estate, What
constitutes, Offer and acceptance, Performance and breach,
Specific performance, Damages. Frauds, Statute of.
Electronic Mail. Damages, Loss of profits.

Civil action commenced in the Superior Court Department on
January 19, 2018.

The case was heard by James F. Lang, J.

Gordon N. Schultz for the defendant.
Paul Alan Rufo (Vincent N. DePalo also present) for the
plaintiff.

BLAKE, J. The plaintiff, K & K Development, Inc. (K&K or

buyer), brought this action against the defendant Zachary

1 Of ZEA 1 Realty Trust.
2

Andrews, individually and as trustee of ZEA 1 Realty Trust (ZEA1

or seller), alleging that ZEA1 committed a breach of its

agreement to sell two mixed-use rental properties to K&K. After

a bench trial in the Superior Court, conducted pursuant to

Rule 20 of the Rules of the Superior Court (2018) (rule 20), the

judge answered special questions on the elements of each claim.

He concluded that a valid agreement existed between the parties,

ZEA1 committed a breach of that agreement, and, as a result, K&K

was entitled to specific performance and monetary damages based

on lost profits.

On appeal, ZEA1 challenges the sufficiency of the evidence

demonstrating the existence of a binding contract and a breach

thereof, K&K's entitlement to both specific performance and

damages, and the denial of ZEA1's motion in limine to exclude

evidence of a deposit made by K&K to bind the purported

agreement. We affirm in all respects except for one minor

adjustment to the damages calculation.

Background. "We recite the facts that the judge could have

found, . . . reserving some for later discussion." Spinosa v.

Tufts, 98 Mass. App. Ct. 1, 3 (2020). Because the judge's

answers to the special questions turn in large part on the

communications between the parties, our review requires us to

set forth the facts in some detail, all of which are drawn from

the trial record. See Wendy's Old Fashioned Hamburgers of N.Y.,
3

Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 375 & n.3

(2009).

1. The properties. Brothers Zachary and Eugene Andrews

own and manage several commercial and residential properties.2

In 1999, they purchased two adjoining buildings located on Union

and Chestnut Streets in Lynn as investment properties

(properties). In 2001, they transferred the titles to the

properties to ZEA1, a realty trust of which Zachary is the

trustee and Zachary and Eugene each are fifty percent

beneficiaries.

The properties consist of eight commercial units on the

ground level and twelve residential units on the second and

third floors. In 2015, a fire resulted in significant damage to

one of the buildings causing it to close (damaged building).

Shortly thereafter, the brothers listed the properties for sale,

with Eugene acting as the licensed broker for the listing.

Because they did not receive any offers within their desired

price range, the brothers decided to demolish the interior and

renovate the damaged building before relisting the properties

for sale.

2. K&K's offers to purchase. K&K is a corporation that

acquires and develops real estate. Boris Kuritnik, K&K's

2 Because the Andrews brothers share a last name, we refer
to them hereafter by their first names.
4

treasurer, secretary, and director, works with Hakim Sadler, a

licensed real estate salesperson, to identify real estate

opportunities, and to acquire and sell properties.

Sadler came across the original listing for the properties

and brought it to Kuritnik's attention in 2016. From March 2017

to November 2017, K&K made five unsuccessful offers to purchase

the properties.3 During that time, Sadler and Eugene

communicated about the properties, including the status of the

certificates of occupancy for the damaged building in order for

the premises to be leased.

After the fifth unsuccessful offer, Kuritnik and Sadler

completed a walk-through of the properties.4 On November 2,

2017, Kuritnik, on behalf of K&K, executed a new offer to

purchase (November 2 offer). The November 2 offer included a

purchase price of $2.683 million with a $5,000 deposit to bind

the offer and an additional $95,000 deposit to be paid on the

execution of the purchase and sale agreement (P&S).5 Like the

earlier offers, the November 2 offer was submitted on a

3 The unsuccessful offers included three in March 2017, when
the damaged building still required major work, and two in
October and November 2017 as that work neared completion.

4 Kuritnik and Sadler previously conducted a walk-through of
the properties in March 2017.

5 The deposit was nonrefundable on K&K's receipt of clear
title.
5

preprinted form issued by the Greater Boston Real Estate Board

(GBREB) that included a "[t]ime is of the essence" provision,

stated that the offer was "a legal document that creates binding

obligations," and advised the parties to consult an attorney if

they needed further advice. K&K also incorporated in the offer

and affixed to it a contingency page signed by Kuritnik with six

additional terms, including, as relevant here, that the "Buyer

[is] granted the right to market and negotiate all new tenancy

upon acceptance" (original rental provision). Kuritnik included

the original rental provision based on his understanding at the

time that the building unaffected by the fire was occupied, and

the damaged (now renovated) building would be vacant when sold.

ZEA1 asked some follow-up questions about the November 2

offer but did not accept it by the deadline of November 29,

2017. However, Sadler and Eugene continued to communicate

throughout November about the potential sale. At Eugene's

request, Eugene and Sadler spoke by telephone on November 29

about the framework for the sale and ZEA1's concerns about the

November 2 offer. Later that day, Eugene returned the November

2 offer to Sadler with revisions (November 29 counteroffer). On

the offer form, Zachary changed the expiration date of the offer

to noon on November 29, 2017, the date to execute the P&S to

December 15, 2017, and the date to close to February 18, 2018.

On the addendum, Zachary crossed out the original rental
6

provision, and he added in a new provision that the "Seller will

rent and collect income from units until closing." Zachary

initialed his changes to the dates and signed both the form and

the addendum. Eugene signed in the section indicating receipt

of a $5,000 deposit from K&K to be held in escrow by Sadler's

employer.

On November 30, 2017, at 12:30 P.M. (after the November 29

counteroffer had expired by its terms), Eugene sent a text

message to Sadler as follows: "Hakim did you get our

counteroffer yesterday? If so could I get some feed back [sic].

We have good applicants ready to move in asap. I liked [sic] to

[k]now what to tell them." Sadler and Eugene then spoke by

telephone about rental pricing for potential tenants. Around

3 P.M. that same day, Sadler followed up via e-mail message in

response to the November 29 counteroffer, explaining about the

leases:

"The buyer is fine with the pricing but wants to be clear
on the provision below:

"'Buyer shall have the final approval of all tenant(s) and
lease(s) prior to leasing the units for both commercial and
residential [(new rental provision)]. Buyer[']s sole and
exclusive approval shall control. All approvals shall be
in writing in advance.

"All store fronts to be finished with uniform materials
including but not limited to windows, type of glass, doors
etc. [(storefront provision)].'
7

"Based on the above verbiage, we might as well start
forwarding the buyer the rental applications you have
collected from potential tenants thus far. Thoughts?"

By that time, Kuritnik understood that ZEA1 intended to lease

the damaged building and collect rent until the closing. Based

on that understanding, Kuritnik explained to Sadler that he

sought the right to approve the leases (rather than the ability

to market and execute leases as requested in the original rental

provision) to "limit [K&K's] exposure to bad tenants on the

residential side and control the lease price and terms . . . on

the commercial."

Approximately one hour later, Eugene responded via e-mail

message, "Hakim one of the doors is not bronze metal. But it

will be painted to match. Also tomorrow is the first so can

they review applications tomorrow?" About twenty minutes later,

Sadler sent to Eugene the November 29 counteroffer with the

following revisions. Kuritnik changed the date on the top of

the offer form from November 2 to November 30, and initialed

next to Zachary's prior changes to the dates for acceptance of

the offer, execution of the P&S, and closing. A new addendum

was affixed to the offer that included the five terms left

unaltered by the parties in the prior contingency page as well

as the new rental provision and the storefront provision

referenced in Sadler's e-mail message to Eugene. That version
8

of the addendum was signed by Kuritnik, but it was never signed

by Zachary or Eugene (November 30 addendum).6

On December 4, 2017, Sadler informed Eugene that the $5,000

deposit was in escrow and arranged to pick up the rental

applications. On the same day, Sadler met with Eugene to obtain

the rental applications. After Kuritnik reviewed the

applications, Sadler informed Eugene that K&K agreed to all five

tenants and requested "discretion moving forward regarding any

new, potential leases." ZEA1 then executed at least two

residential leases on December 4.

On December 4 and 7, 2017, Sadler also requested contact

information for ZEA1's attorney from Eugene in order to move

forward with the P&S. On December 7, Eugene responded that no

P&S would be forthcoming as "[t]he counteroffer with changed

terms was not acceptable to seller and was not executed by the

seller."

3. Present action. In January 2018, K&K brought this

action for declaratory relief, specific performance, and breach

of contract. Following a four-day bench trial conducted

pursuant to rule 20, the judge explained that he intended to

answer the questions on the special verdict form in the parties'

6 Although the addendum sent by K&K is dated November 29,
2017, we refer to it as the November 30 addendum because it
appears that the addendum was sent from K&K to ZEA1 on November
30.
9

presence and "to provide a very truncated explanation for my

reasoning."7

At a subsequent hearing, the judge announced his verdict.

In response to the special questions, he found that there was a

valid contract for the sale of the properties, K&K substantially

performed its obligation under that contract, ZEA1 committed a

breach of the contract, and K&K was entitled to specific

performance and $483,705 in damages for lost profits. The judge

also made "remarks" about the evidence, but warned that they

were not intended as factual findings and "hardly compare[d]" to

the type of detailed findings he would make in the absence of a

rule 20 waiver.8 Judgment subsequently entered in favor of K&K

7 Prior to trial, K&K filed a motion for sanctions based on
ZEA1's purported noncompliance with discovery. The judge
permitted testimony regarding ZEA1's compliance with discovery,
noting that the issue might bear on credibility. He also noted
that he might "draw one or more of the requested adverse
inferences if they [were] warranted based on [his] consideration
of such evidence." Ultimately the judge did not draw any
negative inferences.

8 The judge commented that K&K's addition of the new rental
provision in the November 30 addendum was material, but was the
product of a discussion between Sadler and Eugene that the
provision was acceptable to ZEA1. The judge further noted that
even if Sadler and Eugene did not discuss the new rental
provision, the parties both operated as if that provision was
accepted and in full force based on the evidence that Eugene
provided Sadler with five rental applications on December 4,
Sadler communicated K&K's approval of those tenants, and ZEA1
immediately drafted leases for execution on two applications
after receiving that approval. With respect to any dispute over
the scope of the storefront provision, the judge explained that
the provision became a "nonissue" after Sadler and Eugene agreed
10

ordering specific performance and awarding damages for lost

profits. This appeal followed.

Discussion. 1. Enforceable agreement. ZEA1 challenges

the sufficiency of the evidence to demonstrate the existence of

a binding agreement, and that if such agreement exists,

enforcement is barred by the Statute of Frauds.

a. Standard of review. K&K contends that ZEA1's challenge

to the sufficiency of the evidence is waived because ZEA1 did

not renew its motion for a directed verdict at the close of its

case. This argument is misplaced as it is premised on a jury

trial; in that circumstance, a motion for a directed verdict at

the close of all evidence generally is required to preserve a

sufficiency challenge. See Beverly v. Bass River Golf Mgt.,

Inc., 92 Mass. App. Ct. 595, 600 (2018). That requirement does

not extend to the circumstances here, as "[m]otions for directed

verdicts are proper only when a jury have been empanelled."

Kendall v. Selvaggio, 413 Mass. 619, 620 n.3 (1992). To the

extent that K&K suggests that ZEA1 was required to move for

directed or required findings, see M.G. v. G.A., 94 Mass. App

Ct. 139, 139 n.1 (2018), or for involuntary dismissal, see

Kendall, supra, to preserve its sufficiency challenge, we

disagree given the procedure agreed on by the parties.

that ZEA1 would paint the one unmatching door in the damaged
building, the cost of which was negligible.
11

Pursuant to rule 20(2)(h), the parties waived their right

to a jury trial and to "detailed written findings of fact and

rulings of law." The parties agreed to waive any arguments that

required or depended on detailed factual findings. Accordingly,

appellate review is conducted according to the same standard as

that applied to a judgment entered following a jury verdict.

See Rule 20(8)(b) of the Rules of the Superior Court (2018).

Cf. Spinosa, 98 Mass. App. Ct. at 10 (parties did not waive

challenge to damages award despite waiver of detailed factual

findings).

Consistent with the parties' agreement, and in compliance

with rule 20(8)(a), the judge "answer[ed] special questions on

the elements of each claim, at a level of detail comparable to a

special jury verdict form pursuant to Mass. R. Civ. P. 49 (a)[,

365 Mass. 812 (1974)]." We therefore review to determine

"whether 'anywhere in the evidence, from whatever source

derived, any combination of circumstances could be found from

which a reasonable inference could be drawn in favor of the

[prevailing party].'" Motsis v. Ming's Supermkt., Inc., 96

Mass. App. Ct. 371, 380 (2019), quoting Dobos v. Driscoll, 404

Mass. 634, 656, cert. denied, 493 U.S. 850 (1989).9

9 Although the judge made "remarks" as he answered the
special questions, he was not required to do so under rule 20,
and we are not bound by them. See Rule 20(8)(b) of the Rules of
the Superior Court (2018).
12

b. Evidence of a contract. "[T]o 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." Situation

Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000).

"[A]n agreement may be enforceable that anticipates a more

formal writing, but in such a case, the parties must have agreed

upon either the material terms, or upon the 'formulae and

procedures' that will provide the material terms at some future

date." Frishman v. Maginn, 75 Mass. App. Ct. 103, 110-111

(2009). "Ordinarily the question whether a contract has been

made is one of fact" (citation omitted). Coldwell

Banker/Hunneman v. Shostack, 62 Mass. App. Ct. 635, 640 (2004).

Here, the judge could have found that the parties reached a

binding contract either because the terms altered by K&K's

November 30 addendum were not material or because ZEA1 accepted

those new terms.

i. November 29 counteroffer. On the issue of materiality,

the terms of K&K's November 30 addendum differed from ZEA1's

November 29 counteroffer in three respects: the provision that

the seller would lease and collect rent through closing was

omitted, the new rental provision was added, and the storefront

provision was added. An express term that the seller would

lease and collect rents through closing was not necessary as it
13

merely memorialized the status quo (and K&K already was aware

that ZEA1 intended to lease the building prior to the closing).

With respect to the new rental provision, Kuritnik testified

that the term was not essential, and K&K sought only to be

involved in the rental process as a courtesy that was typically

extended to a buyer.10 While ZEA1 presented evidence that giving

K&K approval rights over leases was material to the seller,

other evidence established that the leasing process was largely

complete in December 2017 and, therefore, K&K's approval rights

would have been limited.11 Finally, Kuritnik testified that he

did not view the storefront provision as essential or

significant, and the term required only painting one door at

minimal cost. If credited by the judge, this evidence was

sufficient to demonstrate that any differences between the

November 29 counteroffer and the November 30 addendum concerned

nonmaterial aspects of the parties' agreement, including the

specifics of ZEA1's leasing of the damaged building within the

agreed on price range. See Goren v. Royal Invs. Inc., 25 Mass.

App. Ct. 137, 141 (1987) (binding preliminary agreement existed

10Sadler also testified that the November 30 addendum
provided a framework for the P&S and included "a lot of trivial
smaller fine points."

11Nine of the ten residential units and four of the six
commercial units in the damaged building were either rented or
in the process of being rented in December 2017.
14

even where subsequent bargaining in anticipation of purchase and

sale agreement over "subsidiary matters [where] norms exist for

their customary resolution").

The judge also could have found that the November 29

counteroffer memorialized all material terms of the parties'

agreement. See McCarthy v. Tobin, 429 Mass. 84, 85 (1999)

(offer to purchase enforceable that specified "price to be paid,

deposit requirements, limited title requirements, and the time

and place for closing"). Evidence of K&K's acceptance of those

terms included Sadler's confirmation to Eugene after receiving

the November 29 counteroffer that the deal was moving forward

and Kuritnik's initials next to the material changes (i.e., the

P&S and closing dates) on the form.12 See Restatement (Second)

of Contracts § 59 comment a (1981) ("definite and seasonable

expression of acceptance is operative despite the statement of

additional or different terms if the acceptance is not made to

depend on assent to the additional or different terms").

12The judge also could have found that ZEA1 waived the
"time is of the essence" provision because Eugene followed up
about the November 29 counteroffer the day after it expired by
its own terms, and provided K&K with the rental applications
after learning that the deposit was delivered on December 4,
rather than contemporaneously with the formation of the
agreement. See McCarthy, 429 Mass. at 89 (provision may be
waived through words and conduct; once waived, "time was no
longer of the essence").
15

ii. November 30 addendum. Even if the changes in the

November 30 addendum were material, the judge could find that

the terms were accepted by Eugene's November 30 e-mail message

to Sadler explaining that the one door would be painted to

match, and that Sadler could pick up the rental applications.

To the extent ZEA1 argues that Eugene lacked the authority

to accept any terms of the agreement on its behalf, we are not

persuaded. The evidence was that Eugene, as ZEA1's agent,13 had

actual authority to enter into a binding agreement on ZEA1's

behalf (either because Eugene had decision-making authority or

because Zachary agreed to the changed terms).14 See Baldwin's

Steel Erection Co. v. Champy Constr. Co., 353 Mass. 711, 715

(1968) ("The authority of an agent is a question of fact, the

answer to which depends upon the inferences to be drawn from a

variety of circumstances" [citation and quotation omitted]).

13ZEA1 does not dispute that Eugene was acting as its agent
and broker. Instead, ZEA1 focuses on the scope of Eugene's
authority because "[a] real estate agent . . . is not an agent
of general powers. As a rule he has no authority to bind his
principal beyond the terms of the specific authority conferred
upon him by the agreement for employment." Harrigan v. Dodge,
216 Mass. 461, 463 (1914).

14"Actual authority can be express or implied. Actual
authority results when the principal explicitly manifests
consent, either through words or conduct, that the agent should
act on behalf of the principal. Implied authority is actual
authority that evolves by implication from the conduct of the
parties." (Citations omitted.) Theos & Sons, Inc. v. Mack
Trucks, Inc., 431 Mass. 736, 743 n.13 (2000).
16

Zachary maintained that he had the final word on decision-

making, but the judge was not required to accept that evidence,

see Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014)

("credibility of the witnesses rests within the purview of the

trial judge"); rather he could find that Eugene had broader

authority to finalize the transaction where he operated a long-

standing business with his brother, handled all the property

sales for that business, was charged with discussing this sale

and all others on behalf of ZEA1, and was a fifty percent

beneficiary of ZEA1. See Baldwin's Steel Erection Co., supra

(sufficient evidence that general manager had authority to enter

into binding contract on behalf of company notwithstanding

statement that sister's signature was required on agreement).

The judge also could have found that Zachary expressly

agreed to the terms in the November 30 addendum as the brothers

spoke daily about business and Eugene continued to engage with

K&K in early December as if an agreement had been reached.15

iii. Intent to be bound. As to the parties' intent to be

bound, the preprinted form that they used stated that it was a

legal document intended to creating binding obligations; Zachary

15Given Eugene's communications with Sadler through early
December, the judge could have rejected the testimony that the
terms of the November 30 addendum were unacceptable to Zachary
and that Eugene was under "strict instructions" from Zachary to
stop all negotiations with K&K as of November 30.
17

testified that he understood that provision when signing the

November 29 counteroffer. The parties' conduct following the

exchange of the November 29 counteroffer and the November 30

addendum also was indicative of an intent to be bound. K&K

delivered a deposit to be held in escrow and so notified ZEA1.

Thereafter, Eugene provided Sadler with rental applications for

K&K's approval and agreed to paint one of the doors. After K&K

approved the applications, ZEA1 executed at least two of the

leases. See Hunneman Real Estate Corp. v. Norwood Realty, Inc.,

54 Mass. App. Ct. 416, 423 n.11 (2002), quoting 1 Corbin,

Contracts § 2.9, at 154 (rev. ed. 1993) ("The subsequent conduct

and interpretation of the parties themselves may be decisive of

the question as to whether a contract has been made, even though

a document was contemplated and has never been executed").16 See

16ZEA1 also argues that any agreement reached was illegal
because G. L. c. 112, § 87RR, required Sadler, a licensed
salesperson, to obtain approval from the real estate broker for
whom he worked before negotiating or completing any transaction
or agreement. ZEA1 failed to raise the affirmative defense of
illegality in the Superior Court. See Mass. R. Civ. P. 8 (c),
365 Mass. 749 (1974). In these circumstances, we see no reason
to depart from the general rule that "a failure to plead an
affirmative defense results in the waiver of that defense and
its exclusion from the case" (citation omitted). Anthony's Pier
Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991). To the
extent ZEA1 argues that we should consider a defense of
illegality, even though not pleaded, when "the evidence 'shows a
contract which is inherently wrongful or which is violative of
some fundamental principle of public policy,'" we are
unpersuaded that exception applies here. O'Donnell v. Bane, 385
Mass. 114, 117 (1982), quoting Gleason v. Mann, 312 Mass. 420,
422 (1942). The record does not demonstrate an agreement that
18

also McCarthy, 429 Mass. at 85, 87-88 (execution of purchase and

sale agreement not necessary to bind parties; offer to purchase

on preprinted GBREB form enforceable); Goren, 25 Mass. App. Ct.

at 139, 141 (offer to purchase binding even where mutually

acceptable purchase and sale agreement contemplated by offer not

executed by both parties). But see Walsh v. Morrissey, 63 Mass.

App. Ct. 916, 916 (2005) (offer to purchase not binding contract

where parties had differing interpretation of provisions,

material terms "were left too vague," and offer explicitly

contemplated subsequent P&S agreement).

c. Statute of Frauds. ZEA1 contends that the enforcement

of any agreement is barred by the Statute of Frauds because the

November 30 addendum was not signed by Zachary. "As a black

letter rule, the Statute of Frauds bars suit '[u]pon a contract

for the sale of lands . . . or of any interest in or concerning

them . . . [u]nless the promise, contract or agreement . . . is

in writing and signed by the party to be charged therewith.'"

Hurtubise v. McPherson, 80 Mass. App. Ct. 186, 188 (2011),

quoting G. L. c. 259, § 1. To satisfy the Statute of Frauds, a

writing (or multiple writings when read together) "must contain

is either wrongful or violative of public policy; it reflects
only silence on the issue whether the real estate broker
employing Sadler "approve[d] the negotiation and completion by
[Sadler] . . . of [the] agreement." G. L. c. 112, § 87RR. We
cannot fault K&K for failing to present such evidence absent
notice that ZEA1 intended to raise an illegality defense.
19

directly, or by implication, all of the essential terms of the

parties' agreement." Simon v. Simon, 35 Mass. App. Ct. 705, 709

(1994). See Brewster Wallcovering Co. v. Blue Mountain

Wallcoverings, Inc., 68 Mass. App. Ct. 582, 600 (2007) (multiple

writings read together can satisfy Statute of Frauds). "Whether

a writing satisfies the Statute of Frauds is a question of law."

Simon, supra.

If the November 29 counteroffer outlined all the material

terms of the agreement, the Statute of Frauds is easily

satisfied based on the written offer signed by both parties. If

the November 30 addendum also included material terms, the

Statute of Frauds is satisfied by reading the November 29

counteroffer together with the November 30 e-mail message

exchange between Sadler and Eugene.

The issue whether an e-mail message can satisfy the Statute

of Frauds has not been squarely addressed by our case law.

However, we have previously acknowledged that a legally binding

contract may be formed through the exchange of e-mail messages.

See Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App. Ct. 204,

212 (2008); Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App.

Ct. 29, 44-45 (2008). The Legislature expressly established the

legal effect of electronic records and signatures through the

enactment of G. L. c. 110G, § 7, which provides:
20

"(a) A record or signature may not be denied legal effect
or enforceability solely because it is in electronic form.

"(b) A contract may not be denied legal effect or
enforceability solely because an electronic record was used
in its formation.

"(c) If a law requires a record to be in writing, an
electronic record satisfies the law.

"(d) If a law requires a signature, an electronic signature
satisfies the law."

This statute reflects the realities of how business is often

conducted in today's marketplace.17 Cf. Goldstein v. Secretary

of the Commonwealth, 484 Mass. 516, 534 (2020) (Kafker, J.,

concurring) ("Electronic signatures are the norm in the private

sector and many areas of government").

On this record, we conclude that the e-mail message

exchange constitutes an electronic record within the meaning of

G. L. c. 110G, § 2,18 and, thus, has the legal effect of

satisfying the "writing" requirement of the Statute of Frauds.

G. L. c. 259, § 1. The messages were generated following

significant negotiations and included one message from Eugene

with the signed November 29 counteroffer attached, Sadler's

17The judge could find that the parties agreed to "conduct
transactions by electronic means," given their history of
negotiating terms and presenting offers via e-mail and text
messages. G. L. c. 110G, § 5 (b).

18General Laws c. 110G, § 2, defines an "[e]lectronic
record" as "a record created, generated, sent, communicated,
received, or stored by electronic means."
21

response thereto about the new rental and the storefront

provisions, and Eugene's acceptance of those provisions with

clarification. See G. L. c. 110G, § 9 (b) ("The effect of an

electronic record or electronic signature . . . is determined

from the context and surrounding circumstances at the time of

its creation, execution, or adoption, including the parties'

agreement, if any, and otherwise as provided by law"). The e-

mail messages also bear the necessary electronic signatures as

they originated from Eugene's e-mail account, his signature

appears in the exchange, and he acknowledged at trial that he

sent the messages.19 See G. L. c. 110G, § 9 (a) ("electronic

signature is attributable to a person if it was the act of the

person. The act of the person may be shown in any manner

. . ."). See also Michelson v. Sherman, 310 Mass. 774, 775-776

(1942) (signature of authorized agent satisfies Statute of

Frauds).20 Accordingly, the requirements of the Statute of

Frauds are satisfied.21

19General Laws c. 110G, § 2, defines an "[e]lectronic
signature" as "an electronic sound, symbol, or process attached
to or logically associated with a record and executed or adopted
by a person with intent to sign the record."

20The judge could have found that Eugene had actual
authority to bind ZEA1.

21To be sure, the transmission of an e-mail message from
the sender's account, without more, does not necessarily bind
the author in a legally cognizable way. As was the case here,
22

2. Remedies. a. Entitlement to damages. ZEA1 claims

that K&K's recovery must be limited to specific performance and

not monetary damages.22 In Perroncello v. Donahue, 448 Mass.

199, 205 (2007), the Supreme Judicial Court concluded that the

seller of real property was entitled to both specific

performance of the contract and additional damages (i.e.,

carrying costs) that he incurred as a result of the delay

between the expected closing date and the actual date of

conveyance. The court explained that "[t]his award is not

inconsistent with specific performance," id., citing in support

the proposition that "[a] party who seeks specific performance

. . . may . . . be entitled to damages to compensate him for

delay in performance." Id. at 205-206, quoting Restatement

(Second) of Contracts § 378 comment d (1981). See Motsis, 96

Mass. App. Ct. at 378-379 (lessor required to perform lease

obligations and pay damages caused by previous failure to do so

and for any period of delay in completing specific performance).

Accordingly, we discern no error in the award of lost profit

damages for the period postdating the agreed on closing date.

the totality of the circumstances must support a conclusion that
the sender intended to be so bound.

22ZEA1 relies on the doctrine of anticipatory repudiation
in support of its argument. Because that argument was not
raised in the Superior Court, it is waived.
23

b. Calculation of damages. ZEA1 next maintains that it is

entitled to certain monetary adjustments to the specific

performance order based on carrying costs and expenses it paid

after the agreed upon closing date that increased the

properties' value. Our review of the damages award is highly

deferential. See Spinosa, 98 Mass. App. Ct. at 10. "[T]o

overturn such an award, we would have to determine that it was

'clearly excessive in relation to what the plaintiff's evidence

ha[d] demonstrated damages to be'" (citation omitted). Id.

K&K suggested a sound method to calculate lost profit

damages, namely, to reach the appropriate amount by determining

ZEA1's net operating income (i.e., rental income generated by

the properties, minus ZEA1's expenses) and then subtracting

K&K's anticipated carrying costs had the agreed on deal been

finalized. K&K amply supported its calculations by introducing

ZEA1's Federal tax returns for 2018 through 2021, and providing

testimony about the mortgage that K&K anticipated obtaining to

finance the purchase of the properties. There was no error in

the utilization of this procedure.

However, in considering the evidence presented, there was a

slight computational error.23 The judge awarded $483,705 in

23The judge could have found that in the forty-six month
period from March 2018 through December 2021, ZEA1's net
operating income was $665,764, and K&K would have paid $258,412
in interest on its anticipated mortgage. In total, this equates
24

damages. That amount appears to be based on a failure to adjust

the 2018 figures to account for the fact that the closing was

not set to occur until February 18, 2018. K&K acknowledged that

lost profit damages should not include the months of January and

February 2018, but failed to make the requisite adjustment in

the total amounts presented to the judge.24 Accordingly, ZEA1 is

entitled to a reduction in the lost profit damages award to

reflect the correct amount of $460,482.25

to lost profits of $407,352 for the period from March 2018 to
December 2021. To calculate the remaining lost profits from
January 2022 through trial in June 2022, we discern no error in
the judge's acceptance of K&K's suggestion that a reasonable
monthly amount could be arrived at by using the average monthly
damages from the preceding forty-six month period. That amount
is $8,855 per month or $53,130 for the six-month period. The
evidence then supports a total lost profit damages award of
$460,482.

24K&K presented evidence that ZEA1's net operating income
was $123,244 for 2018; $218,749 for 2019; $164,639 for 2020; and
$179,673 for 2021. K&K also presented evidence that ZEA1's net
operating income for 2018, as adjusted to reflect the relevant
ten-month period after the closing date, was $102,703. In its
closing argument, K&K argued that ZEA1's net operating income
was $686,305, for the period from March 2018 to December 2021.
Accounting for the two-month adjustment, that amount should have
been $665,764.

25We are unpersuaded by ZEA1's remaining argument that it
was entitled to further deductions for carrying costs and
expenses it incurred. The net operating income amount did
include deductions derived from the tax returns for costs
associated with cleaning and maintenance, insurance, taxes,
utilities, water and sewer, trash collection, and plowing. The
damages amount also reflected adjustments for K&K's anticipated
mortgage interest payments. To the extent that ZEA1 sought
further deductions, it was required to raise that argument in
the first instance before the judge, and we discern no abuse of
25

3. Deposit evidence. Finally, ZEA1 argues that the judge

abused his discretion in declining to exclude all evidence of

K&K's $5,000 deposit because a copy of the check was not

produced during discovery.

ZEA1 points to 254 Code Mass. Regs. § 3.00(10)(b) (2005),

which requires a broker (here, Sadler's employer) to keep a

record of the deposit check held in escrow for a three-year

period. ZEA1 seemingly suggests, based on the regulation (cited

for the first time on appeal) and the nonproduction of the

check, that the judge should have inferred that the deposit was

never made and allowed ZEA1's motion in limine. We are not

persuaded. Even in the absence of documentary evidence

establishing the existence of K&K's check, the judge was free to

admit and credit Sadler's testimony that he received the check

at his office as sufficient evidence that the deposit was made.

Accordingly, the judge did not abuse his discretion.26 See

Laramie v. Philip Morris USA Inc., 488 Mass. 399, 414 (2021)

(evidentiary decisions reviewed for abuse of discretion).

discretion in the judge's failure to consider the issue sua
sponte. Cf. Flynn v. Wallace, 359 Mass. 711, 720 (1971) (judge
has discretion to invoke unjust enrichment doctrine if specific
performance ordered "following reasonable conflicting viewpoints
on the law and facts").

26Because we discern no abuse of discretion, we need not
decide whether the motion sufficiently preserved this issue for
appeal. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016).
26

Conclusion. So much of the judgment as awarded lost profit

damages to K&K in the amount of $483,705 is vacated, and a new

judgment shall enter awarding lost profit damages to K&K in the

amount of $460,482. As so modified, the judgment is affirmed.27

So ordered.

27 K&K's request for appellate attorney's fees and costs is
denied.