STEVEN D. FRANZOSA v. JEFFREY E. ROSSMAN & Others.

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

25-P-282

STEVEN D. FRANZOSA

vs.

JEFFREY E. ROSSMAN & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant Jeffrey E. Rossman represented the plaintiff,

Steven D. Franzosa, in divorce proceedings. Subsequently,

Franzosa sued Rossman and others at Rossman's law firm for legal

malpractice. The parties later entered into discussions to

settle the malpractice action. Contending that Franzosa was

repudiating an agreement that had been reached, the defendants

filed a motion to enforce the settlement agreement. After an

evidentiary hearing, a judge of the Superior Court allowed the

motion. Franzosa appealed, claiming that the judge erred in

finding an enforceable agreement. We affirm.

1 Neil Rossman, John Doe 1-5, and Jane Doe 1-5.
Background. Represented by a different attorney

(malpractice attorney), Franzosa brought a legal malpractice

action against his former divorce attorney, Rossman, and others

at Rossman's firm in December 2020. The defendants thereafter

filed a third-party complaint against Franzosa's malpractice

attorney, seeking contribution.2 As a result, in November 2022,

the malpractice attorney was disqualified from representing

Franzosa in the action "for so long as the Third-Party Complaint

seeking contribution is pending against her." The malpractice

attorney moved to dismiss the third-party complaint and, in the

interim, another attorney (interim attorney) appeared on behalf

of Franzosa.

Throughout this period when the interim attorney

represented Franzosa, the parties discussed settling the claims

and circulated several drafts of a stipulation of dismissal by

e-mail. In July 2023, the interim attorney told all parties

that Franzosa had authorized him to sign "any legal pleadings

. . . that would accomplish a dismissal of the . . . matter,

with prejudice." This position was consistent with the

circulated stipulation proposing a mutual dismissal and release

of all claims against all parties, with prejudice.

2 The malpractice attorney had also previously represented
Franzosa in postdivorce proceedings in the Probate and Family
Court after the entry of the judgment of divorce nisi. See
Franzosa v. Franzosa, 98 Mass. App. Ct. 179 (2020).

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On October 25, 2023, the parties appeared close to

dismissing all claims, and were waiting for the malpractice

attorney to return from vacation to execute the agreement in

person because it would have resolved the claims against her, as

well. On October 30, 2023, the third-party complaint against

the malpractice attorney was dismissed. After the malpractice

attorney returned and, no longer disqualified, resumed her

representation of Franzosa on November 6, 2023, she told counsel

for the defendants, "My client and I are always interested in

talking to your office about your clients' settlement offer of

compensation, about which we haven't heard one single word"

(emphasis added). Because this differed from the previous

settlement discussions, the defendants notified Franzosa of

their intent to file a motion to enforce the settlement

agreement reached with the interim attorney.

The defendants filed the motion to enforce the settlement

agreement in January 2024. Franzosa filed an opposition, which

was accompanied by affidavits from the malpractice attorney and

the interim attorney. After a hearing, the judge allowed the

defendants' motion, reasoning that the interim attorney had

authority to settle the case on Franzosa's behalf, had reviewed

the agreement and proposed no edits, and because the only thing

delaying signature was the malpractice attorney's return -- a

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requirement the judge found immaterial -- concluded that the

parties agreed on all material terms as of October 26, 2023.

Discussion. Franzosa appeals, arguing the judge erred in

(1) enforcing the unsigned settlement agreement when the parties

had agreed that original "wet signatures" were necessary; and

(2) concluding that the interim attorney had authority to settle

the matter.

1. Signature requirement. Franzosa argues that no

enforceable agreement was formed until it was signed, because

the parties agreed to original signatures on the stipulation of

dismissal and, thus, the lack of execution demonstrates a lack

of intent to be bound. "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).

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).

To create an enforceable contract, the parties must have

had the intention to be bound by their agreement at the time of

its formation. See McCarthy v. Tobin, 429 Mass. 84, 87 (1999).

"To ascertain intent, a court considers the words used by the

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parties, the agreement taken as a whole, and surrounding facts

and circumstances." Massachusetts Mun. Wholesale Elec. Co. v.

Danvers, 411 Mass. 39, 45-46 (1991). We accept the judge's

factual finding of the parties' contemporaneous intent to be

bound unless the finding is "clearly erroneous." Mass.

R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996). See Basis

Tech. Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36

(2008). "A finding is 'clearly erroneous' only when, 'although

there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed" (citation omitted). Demoulas

v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997).

Here, the judge explained his reasoning at the conclusion

of the hearing on the motion to enforce, noting the following as

evidence of the parties' intent to be bound: the interim

attorney's testimony that he had authority to settle on

Franzosa's behalf and was only waiting for the malpractice

attorney's return to do so; the interim attorney's testimony

that he did not propose any edits to the draft agreement; the

defendants' acceptance of the malpractice attorney's October 25,

2023 proposed revisions to the draft; and the interim attorney's

testimony that he had reviewed the stipulation of dismissal and

had told the defendants' counsel that it "was exactly what

[Franzosa] was looking for to settle all claims in the matter,

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and that he and [Franzosa] would sign it." The judge found the

fact that the agreement was not signed immaterial, as the only

language still pending negotiation did not address any material

terms.

We detect no error in the judge's conclusion that the

parties intended to be bound by the agreement as of October 26,

2023. The draft stipulation accurately reflects Franzosa's

position throughout the e-mail negotiations: resolve all claims

against all parties, with prejudice.

Franzosa cites to no authority supporting his argument that

the missing signature indicates missing intent; he references

only a footnote from McCarthy, 429 Mass. at 88 n.3, which states

that parties may employ specific language if they do not intend

to be bound by a preliminary agreement until the execution of a

more formal document. The parties here neither included nor

requested such a provision. And while parties certainly may

expressly provide that they do not intend to be bound until the

transaction is buttoned up by a more detailed and formal

agreement, the lack of a signature is not sufficient to show

such a lack of intent. See id. See also Goren v. Royal Invs.,

Inc., 25 Mass. App. Ct. 137, 140 (1987) ("If . . . the parties

have agreed upon all material terms, it may be inferred that the

purpose of a final document which the parties agree to execute

is to serve as a polished memorandum of an already binding

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contract"). Accordingly, we conclude that the judge did not err

in finding that the parties intended to be bound by the

stipulation of dismissal as of October 26, 2023.

2. The interim attorney's authority to settle.3 Franzosa

next challenges the judge's determination that the interim

attorney had authority to settle on October 26, 2023, arguing

that such a finding required evidence about communications

between them to establish implied authority.4 This argument is

misplaced.

In July 2023, the interim attorney informed the other

parties that Franzosa authorized him to sign any legal pleadings

that would accomplish a dismissal of the matter with prejudice.

This is consistent with the interim attorney's hearing testimony

that his "exact authority" was "that all parties be resolved,

all claims be dismissed with prejudice." The interim attorney

knew Franzosa's objective and had actual authority to settle the

3 The defendants argue that Franzosa waived this specific
argument by failing to raise it before the judge below. In an
exercise of our discretion, we address this argument on its
merits without deciding the issue of waiver. See Zora v. State
Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993).

4 To the extent Franzosa argues that testimony about such
communications is insufficient evidence of authority, this
argument also fails. See generally Peters v. Wallach, 366 Mass.
622, 627-628 (1975) (rejecting argument that counsel's
testimony, which was only evidence of authority to settle, was
insufficient and unavailable because of attorney-client
privilege).

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case under the stipulation's terms, as they accomplished his

client's goal. See generally Theo & Sons, Inc. v. Mack Trucks,

Inc., 431 Mass. 736, 743-744 (2000) ("Actual authority, either

express or implied, is the agent's power to affect the

principal's relations with third parties as manifested to the

agent by the principal"). We discern no error in the judge's

finding that the interim attorney had authority to settle.5

Order allowing motion to
enforce settlement
agreement affirmed.

By the Court (Singh,
Hershfang & Wood, JJ.6),

Clerk

Entered: May 7, 2026.

5 The defendants' request for appellate attorney's fees is
denied.

6 The panelists are listed in order of seniority.

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