CHARLES ZAMMUTO v. PAUL DAMIANIDIS, Trustee, & 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

25-P-214

CHARLES ZAMMUTO

vs.

PAUL DAMIANIDIS, trustee,1 & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Charles Zammuto, appeals from a judgment of

the Superior Court dismissing his complaint against the

defendants, Paul Damianidis as trustee of EKG Realty Trust and

Irene Damianidis as trustee of I & P Realty Trust, as well as

from an order denying his motion to enforce a settlement

agreement against the defendants. We reverse the order denying

the motion to enforce, vacate the judgment, and remand for entry

of a new judgment.3

1 Of EKG Realty Trust.

2 Irene Damianidis, as trustee of I & P Realty Trust.

3In light of our disposition, we do not reach the merits of
the plaintiff's appeal from the judgment on the underlying
complaint.
Background. We briefly summarize the relevant facts from

the parties' agreed statement of facts for trial and the joint

trial exhibits, reserving certain details for later discussion.

The defendants collectively own two next-door properties in

Ashland. The present dispute stems from a mistaken belief by

the parties that the defendants also owned the approximately

twelve-foot wide strip of land (strip) adjoining those

properties.

In May 2019, the plaintiff made an offer to purchase the

properties together, contingent on his timely obtaining the

local and State permitting necessary to build a twelve- to

sixteen-unit apartment building on the land. The defendants

were aware that the plaintiff intended that the building would

span the properties contiguously. The plaintiff and defendants

executed a purchase and sale agreement (P&S) by the end of June

2019, and the plaintiff paid a $35,000 deposit. The plaintiff

incurred costs in applying for special permits to the town

planning board and engaging professional services to prepare the

building plans and test the properties for hazardous waste. The

plaintiff obtained special permits on May 6, 2020. The permits

were initially valid for two years, but were later extended by

executive order and did not lapse until June 15, 2023.

Around July 2020, prior to the closing, an attorney and

title insurance agent for the plaintiff's bank notified the

2
parties that the title to the strip was defective. The parties

determined that an adverse possession claim was the best option

for the defendants to recover ownership of the strip, but doing

so would cost over $3,000 and would take months to complete.

The defendants rejected the plaintiff's offer to share the costs

to cure title to the strip. Instead, they elected to terminate

the P&S by invoking provisions purportedly allowing them to do

so in case they were unable to deliver possession with clear

title within thirty days of the time for performance or without

expending more than $3,000 to cure any defect in title.

On September 25, 2020, the plaintiff filed a complaint in

the Superior Court seeking specific performance of the P&S,

damages for "misrepresentation, detrimental reliance, [and]

restitution," and damages under G. L. c. 93A, §§ 2, 11. The

defendants filed a counterclaim for breach of contract, alleging

that the plaintiff wrongfully refused to close on the purchase

of the properties without title to the strip and seeking

forfeiture of the plaintiff's deposit.4

In July 2021, the defendants obtained title to the strip

through an action in the Land Court. In the fall of 2021, the

defendants approached Carlos Hanzi, the manager of Evolution

4 On March 15, 2021, a different judge granted the plaintiff
a preliminary injunction ordering the defendants to release the
deposit.

3
Developments, LLC (Evolution), about purchasing the combined

properties, including the strip.

The defendants, the plaintiff, and Hanzi negotiated a

settlement agreement in November 2021 whereby Evolution would

purchase the properties from the defendants and have the special

permits from the plaintiff transferred to Evolution, and at the

time of closing, the plaintiff would be "paid $100,000.00 by the

closing attorney as a sellers' expense" and the defendants and

plaintiff would dismiss their claims in the underlying

litigation. The plaintiff and the defendants signed the

settlement agreement; however, before Hanzi signed the

settlement agreement, the defendants notified Hanzi and the

plaintiff that they were withdrawing from the sale to Evolution.

The parties' joint pretrial memorandum filed in February

2022 and subsequent representations at the final pretrial

conference on January 9, 2024, clarified that the plaintiff had

abandoned his claims for specific performance of the P&S and

violation of G. L. c. 93A and that the defendants had abandoned

their counterclaim. The only remaining claim in the complaint

was for "misrepresentation, detrimental reliance, [and]

restitution," for which the plaintiff sought $87,591.51 in

damages. On the same day that the final pretrial conference was

held, the plaintiff filed a motion to enforce the settlement

agreement (motion to enforce). On January 16, 2024, the judge

4
heard the motion to enforce and conducted a bench trial on the

plaintiff's misrepresentation claim.

On February 20, 2024, the judge issued an order that the

plaintiff's motion to enforce was moot. On November 8, 2024,

the judge issued a written decision finding that the plaintiff

had not met his burden on his misrepresentation claim. Judgment

dismissing the complaint on the merits entered on November 12,

2024.

Discussion. Where a settlement agreement has been reached

while litigation is pending, a trial court judge has the

authority to informally resolve contract claims stemming from

that agreement when they are advanced by motion. See Duff v.

McKay, 89 Mass. App. Ct. 538, 541-542 (2016). "A settlement

agreement is a contract and its enforceability is determined by

applying general contract law" (citation omitted). Dacey v.

Burgess, 491 Mass. 311, 318 (2023). Interpretation of the terms

of a settlement agreement, like those of any contract, is a

question of law that we review de novo. See, e.g., USM Corp. v.

Arthur D. Little Sys., Inc., 28 Mass. App. Ct. 108, 116 (1989).

Given the proximity to trial of the plaintiff's filing the

motion to enforce and the lack of an evidentiary hearing, we

"treat[] [the motion] as akin to one for summary judgment," and

thus we review the denial of the motion "de novo, to determine

whether, viewing the evidence in the light most favorable to the

5
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, 89 Mass. App. Ct. at

542-543.

Here, the plaintiff alleged in the motion to enforce that

the defendants were in breach of the settlement agreement. As a

remedy, the plaintiff sought a judgment of $100,000 against the

defendants and an order dismissing the plaintiff and defendants'

claims with prejudice.5

The judge found that the settlement agreement was a binding

contract on the parties. Although the judge found that the

defendants essentially committed a breach of the settlement

agreement, he denied the motion to enforce as "moot" based on

"the contingent nature of the settlement agreement" and "the

passage of time." Accordingly, the judge did not reach the

issue of the plaintiff's remedy. We discuss these points in

turn.

1. Existence of contract. We conclude that the evidence

supported the judge's conclusion that the settlement agreement

was binding on the parties.

5 At the motion hearing, the plaintiff clarified that he was
no longer seeking dismissal of the defendants' counterclaim
because the defendants had abandoned it.

6
A binding agreement requires that "the parties manifested

the intent, viewed objectively, to be bound at the time of

contract formation, notwithstanding [any] party's subjective

intent." Brewster Wallcovering Co. v. Blue Mountain

Wallcoverings, Inc., 68 Mass. App. Ct. 582, 596 n.35 (2007).

The defendants argue that although they and the plaintiff signed

the settlement agreement, the agreement did not become binding

because Hanzi never signed it or indicated when he would. We

disagree.

E-mail correspondence between counsel for the three parties

to the settlement agreement demonstrates that the agreement was

actively negotiated in early November 2021. After defense

counsel circulated a draft on November 11, 2021, plaintiff's

counsel responded that the agreement "look[ed] fine" besides

needing to incorporate a promise by the defendants to dismiss

their counterclaim -- a term which the final agreement added.

On November 12, 2021, Hanzi's attorney approved the terms of the

negotiated settlement agreement in an e-mail message stating,

"Looks good -- thanks."

On November 16, 2021, the defendants signed the settlement

agreement and sent an e-mail message notifying the plaintiff and

Hanzi and inquiring about their preferred method for execution.

Plaintiff's counsel stated that, regardless of how the document

was executed, "[The plaintiff] can sign either way." The next

7
day, defense counsel mailed the original agreement to the office

of Hanzi's attorney, who received the document on November 18

and wrote to the plaintiff and defendants inviting the plaintiff

to come to his office to sign in person. The plaintiff

ultimately signed the settlement agreement in person at Hanzi's

office on the morning of November 23.6 Later that morning,

Hanzi's attorney sent an e-mail message to the defendants'

attorney demonstrating that he had already begun preparing the

application for transfer of the site plan approval as

contemplated by item 2 of the settlement agreement.

From these facts, it is clear that negotiations of the

settlement agreement had been perfected,7 as the plaintiff,

defendants, and Hanzi had each assented to the settlement

agreement's final terms. No party to the settlement agreement

suggested that it would not be bound until the formal settlement

agreement was executed, and the defendants readily executed it.

See Duff, 89 Mass. App. Ct. at 546. The plaintiff and Hanzi

approached the act of signing as a formality without

equivocation. Accord Fecteau Benefits Group, Inc. v. Knox, 72

6 This fact, while apparently disputed in the trial court,
is conceded in the defendants' appellate brief. It is not
material to our analysis.

7 This determination is not affected by the apparent factual
dispute over whether the purchase and sale agreement between the
defendants and Evolution was still actively being negotiated.

8
Mass. App. Ct. 204, 213 (2008) (no error in finding intent to be

bound where e-mail exchange included all material terms of

agreement, deadline for acceptance, and acceptance without

equivocation). Viewed objectively, the statements and conduct

of the parties to the settlement agreement manifested their

contemporaneous intent to be bound such that a contract had been

formed at latest by the morning of November 23. See Novel Iron

Works, Inc. v. Wexler Constr. Co., 26 Mass. App. Ct. 401, 410

(1988) (concluding draft agreement was binding notwithstanding

lack of signatures where "[t]he preliminaries had been

completed, the essential terms of the agreement had been

reached, and the parties thereafter engaged in activities

consistent with their agreement").

2. Conditions precedent to enforceability. The judge

found that the motion to enforce was "moot" in part because the

agreement was "contingent upon four . . . other steps

occurring." The judge did not specify whether he meant that the

conditions were precedent to contract formation or to

performance. See Twin Fires Inv., LLC v. Morgan Stanley Dean

Witter & Co., 445 Mass. 411, 420-421 (2005). The parties agree

that the conditions contained in items 1 through 4 of the

settlement agreement preceded at least the obligations to

perform set forth in items 5 to 6, to wit, the defendants'

9
obligation to pay the plaintiff $100,0008 and the plaintiff and

defendants' mutual obligation to dismiss and release all their

claims in the underlying litigation. However, the defendants

further press the argument that the nonoccurrence of the

conditions foreclosed contract formation. The crux of their

argument is that the settlement agreement was a "framework" that

would only take legal effect if the defendants closed on the

sale with Evolution, while leaving the defendants free to

disengage from the closing if it was not beneficial to them.

We agree with the plaintiff's position that the conditions

in the settlement agreement are not precedent to its

effectiveness and that the agreement imposed on the defendants a

duty to attempt to close with Evolution in good faith.

"Contract conditions precedent generally are of two kinds."

Haverhill v. George Brox, Inc., 47 Mass. App. Ct. 717, 719

(1999). "The first involves issues of offer and acceptance

which precede and determine the formation of a contract. . . .

The second arises from the terms of a valid contract and defines

an event which must occur before a right or obligation matures

under the contract." Id. Conditions precedent may be created

8 Although the judge interpreted the settlement agreement to
mean that Hanzi would pay $100,000 to the plaintiff, we conclude
that the agreement unambiguously obligated the defendants to
make that payment. The settlement agreement describes the
payment as a "sellers' expense," not a buyer's expense.

10
through "emphatic words" or through an intent manifested by the

contract as a whole. Massachusetts Mun. Wholesale Elec. Co. v.

Danvers, 411 Mass. 39, 46 (1991).

Here, the defendants' proposed reading of the conditions as

precedent to the effectiveness of the settlement agreement is

unreasonable for two reasons. First, although the emphatic

conditional language in items 5 and 7, set out in full in the

margin,9 pertains in part to offer and acceptance, it implicates

the purchase and sale agreement between the defendants and

Evolution, not the settlement agreement itself. Cf. Haverhill,

47 Mass. App. Ct. at 719. Instead, item 5 is more naturally

read to define events -- the satisfactory completion of items 1

through 4 -- which must occur before the plaintiff and

defendants' core obligations mature under items 5 and 6 of the

contract.

9 Those provisions of the settlement agreement follow:

"5. In the event that items 1-4 above are satisfactorily
completed, then at closing between [the defendants] and
Evolution, [the plaintiff] will be paid $100,000.00 by the
closing attorney as a sellers' expense;

"6. In exchange for the $100,000.00 check, [the plaintiff
and the defendants] will sign and exchange a signed
Stipulation of Dismissal with prejudice of all claims and
counterclaims in the lawsuit for filing in the Middlesex
Superior Court, together with mutual releases;

"7. In the event that Evolution does not close on the
property, this [a]greement shall be null and void."

11
Second, although we grant the defendants that item 1 --

agreeing that the defendants "are authorized to accept the

Evolution offer" -- does not appear to impose a requirement to

close when read in isolation, our interpretation is informed by

the structure and surrounding provisions of the contract. See

Charles I. Hosmer, Inc. v. Commonwealth, 302 Mass. 495, 501

(1939) ("The literal interpretation of any word or phrase may be

qualified by the context in which it appears, [and] by the

general purpose manifested by the entire contract").

Items 2 through 4 set forth actionable tasks incumbent on

the plaintiff and that were prerequisites to closing: to

cooperate with Evolution in securing town board approvals for

permit transfers to Evolution, to assign certain rights to

Evolution, and to indemnify Evolution and the defendants against

certain claims. Meanwhile, item 5 treats the preceding four

items as tasks to be "satisfactorily completed" prior to the

time of the parties' core performance at closing. Item 7 of the

agreement provides that "[i]n the event that Evolution does not

close on the property, this [a]greement shall be null and void."

This emphatic provision for ineffectiveness applies only to

Evolution's failure to close,10 and there is no comparable

10In contrast, the event triggering payment to the
plaintiff is the "closing between [the defendants] and
Evolution" (emphasis added). We presume that this distinction
is deliberate. See J.A. Sullivan Corp. v. Commonwealth, 397

12
language to void the agreement in the event that the defendants

thwarted the closing. Nor is there any language to void the

agreement in the event that the plaintiff failed to take the

actions set forth in items 2 through 4.

To harmonize these provisions, we construe the agreement as

charging the defendants with the pursuit of closing in parallel

with the plaintiff's duties established in items 2 through 4.

Accordingly, we agree with the plaintiff's contention that the

agreement contemplates that the defendants were required to make

a good faith attempt to close with Evolution. See Weiler v.

PortfolioScope, Inc., 469 Mass. 75, 82 (2014) (every contract

contains implied covenant of good faith and fair dealing). See

also Goren v. Royal Invs. Inc., 25 Mass. App. Ct. 137, 139

(1987) (parties' obligation to exercise good faith in attempting

to draft and negotiate formal purchase and sale agreement was

implicit in provision of preliminary agreement looking to

execution of agreement).

3. Breach of contract. Notwithstanding the conditional

nature of the defendants' core obligations under items 5 and 6,

we agree with the plaintiff that the judge erred by determining

that the nonoccurrence of the conditions precedent rendered the

defendants' obligation to perform unenforceable. "A repudiation

Mass. 789, 795 (1986) ("[E]very phrase and clause must be
presumed to have been designedly employed" [citation omitted]).

13
of a contract is a material breach" and when it is "with respect

to the entire performance that was promised or with respect to

so material a part of it as to go to the essence," the

repudiation "operate[s] as a discharge of the other party"

(citation omitted). Coviello v. Richardson, 76 Mass. App. Ct.

603, 609 (2010). Furthermore, "it is fundamental that a

promisor may not avoid his promised performance based on the

nonoccurrence of a condition, where the promisor has himself

hindered or prevented its occurrence." Lobosco v. Donovan, 30

Mass. App. Ct. 53, 56 (1991). See Restatement (Second) of

Contracts § 245 (1981).

The November 23, 2021 e-mail message from the defendants'

attorney informed the plaintiff and Hanzi that the defendants

would not enter into a purchase and sale agreement with

Evolution and would not negotiate further. This was a definite

and unequivocal manifestation of the defendants' intention not

to perform any of its obligations under the settlement

agreement; it consequently served to repudiate the settlement

agreement and excuse the plaintiff from any further performance.

See Coviello, 76 Mass. App. Ct. at 609. The defendants waived

nonoccurrence of the conditions precedent as a defense to their

own failure to perform, having precluded the occurrence of the

same by their repudiation. See Lobosco, 30 Mass. App. Ct. at

56.

14
We conclude that the defendants' obligation to pay the

plaintiff $100,000 is enforceable even though the conditions

precedent to that obligation were not fulfilled, and that the

defendants committed a breach of that obligation.

4. Timeliness. As a second ground for denying the motion

to enforce as "moot," the judge cited his concern that the

plaintiff had waited over two years after the defendants' breach

to file his motion to enforce. The judge stated that the

special permits had lapsed in May 2022 and found that "imposing

a remedy of specific performance at this juncture is futile, at

best, and further was not requested as the relief sought by the

[p]laintiff" (footnote omitted). We agree with the plaintiff

that this was error.

The judge's finding appears to be made in response to the

defendants' reliance on the equitable defense of laches in their

opposition to the motion to enforce and at the motion hearing.

We therefore ground our analysis of the finding in that

doctrine. "A judge may find as a fact that laches exists if

there has been unjustified, unreasonable, and prejudicial delay

in raising a claim." Srebnick v. Lo-Law Transit Mgt., Inc., 29

Mass. App. Ct. 45, 49 (1990).

15
Assuming arguendo that laches is an available defense to

enforcement of the settlement agreement,11 the plaintiff's

argument exposes two errors in the judge's finding. First,

under our interpretation of the settlement agreement, the record

does not support a finding that the plaintiff's delay in

bringing the motion to enforce was unreasonable. Whereas the

judge explained that "[i]t is undisputed that the permit

obtained by the [p]laintiff lapsed in May 2022," the parties'

agreed statement of facts for trial states that the special

permits were extended by executive order until June 15, 2023.

Because the settlement agreement did not contemplate a date for

the closing, it is conceivable that the time for the defendants'

performance under items 5 and 6 would not have arrived until

June 15, 2023, when the special permits, if "substantial use [of

them had not yet] commenced," would have lapsed. In these

circumstances, and where the date for performance of the

settlement agreement depended on the outcome of negotiations of

the purchase and sale agreement between the defendants and

Evolution, we interpret the settlement agreement to impose June

15, 2023, as a "reasonable" deadline for performance. See

Dalrymple v. Winthrop, 97 Mass. App. Ct. 547, 555 (2020).

11Laches generally is not a bar to recover money damages
for breach of contract. See Bedford Heating & Air Conditioning
Co. v. Milano, 6 Mass. App. Ct. 898, 898 (1978).

16
Because "Massachusetts has not generally recognized the doctrine

of anticipatory repudiation," we agree with the plaintiff that

he would not have been able to bring a claim for breach of

contract at law until the special permits expired (citation

omitted). K.G.M. Custom Homes, Inc. v. Prosky, 468 Mass. 247,

253 (2014). Although limited exceptions have been made to that

rule for some equitable causes of action, see Cavanagh v.

Cavanagh, 33 Mass. App. Ct. 240, 243 (1992), in consideration of

the defendants' repudiation, we also agree with the plaintiff

that he was not obligated to bring a claim for specific

performance or injunctive relief prior to the lapse of the

special permits. See Blakeley v. Pilgrim Packing Co., 4 Mass.

App. Ct. 19, 24 (1976) ("[O]ne, who openly defies known rights,

in the absence of anything to mislead him or to indicate assent

or abandonment of intent to oppose on the part of others, is not

in a position to urge as a bar failure to take the most instant

conceivable resort to the courts" [citation omitted]).

Second, as we interpret the settlement agreement, the

plaintiff's delay in bringing the motion to enforce did not

prejudice the defendants. Contrary to the judge's finding that

enforcement would be "futile," the plaintiff correctly points

out that both of the parties still "have a stake in the claim."

Indeed, the relief the plaintiff sought through the motion to

enforce was the specific benefit of the settlement bargain: a

17
judgment against the defendants enforcing their obligation to

pay him $100,00012 and enforcing the plaintiff and defendants'

promises to dismiss with prejudice their claims in the

underlying litigation. The lapse of the special permits did not

prejudice the defendants' position in the enforcement of the

settlement agreement because the defendants had no rights to the

permits and the agreement contemplated only that the plaintiff

would "cooperate with Evolution . . . to get all approvals by

and from the appropriate Town of Ashland boards or committees

needed in order to transfer all [p]ermits to Evolution"

(emphasis added). Hanzi, as a nonbreaching third party to the

settlement agreement, could not be compelled to perform. After

the defendant's repudiation caused Hanzi to lose interest in the

deal, the defendants never stood to benefit from the plaintiff's

special permits under the settlement agreement. Because the

record does not support any finding that the plaintiff's delay

in bringing the motion to enforce was unreasonable or

prejudicial, we conclude that there was no equitable basis for

denying the plaintiff's motion. This is therefore a live

controversy, and the plaintiff's motion to enforce the

settlement agreement was not moot.

12Paragraph 5 of the settlement agreement represented
payment to the plaintiff to reimburse him for his prior
expenses, which are also the subject of his claim for
misrepresentation.

18
5. Recovery for breach. "The long-established general

rule for breach of contract recovery . . . is that the wronged

party should receive the benefit of his bargain, i.e. be placed

in the same position as if the contract had been performed."

VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 611

n.2 (1994). Here, the plaintiff is entitled to $100,000, the

amount that he would have received if the settlement agreement

had been performed.

Conclusion. We conclude that there was no genuine dispute

of fact material to the motion to enforce and that, taking the

undisputed facts in the light most favorable to the defendants,

the plaintiff was entitled as a matter of law to a favorable

judgment on the motion. See Duff, 89 Mass. App. Ct. at 542.

If the motion to enforce had been properly allowed, the

trial would have been avoided and the complaint dismissed but

not on the merits. Accordingly, we reverse the order denying

the plaintiff's motion to enforce the settlement agreement, and

a new order shall enter allowing the motion. We vacate the

judgment of dismissal on the merits, and we remand for entry of

a new judgment ordering the defendants to provide $100,000 to

19
the plaintiff and dismissing with prejudice the plaintiff's

complaint and the defendants' counterclaim.13

So ordered.

By the Court (Singh, Grant &
Tan, JJ.14),

Clerk

Entered: June 11, 2026.

13 The defendants' request for attorney's fees is denied.

14 The panelists are listed in order of seniority.

20