SUSAN BACH, Trustee v. RICHARD M. SHEA & Another; SUSAN BACH, Individually, Third-Party

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-2

SUSAN BACH, trustee,1

vs.

RICHARD M. SHEA2 & another;3 SUSAN BACH, individually, third-
party defendant.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment of dismissal

following a Superior Court judge's allowance of a motion to

enforce settlement agreement. On appeal, she contends that the

judge erred in determining that the parties had come to such an

agreement. As the judge's findings are insufficient to allow

1 Of the Frances S. Adams Trust.

2In an April 2022 pretrial order, a Superior Court judge
acknowledged that Richard M. Shea had died. The docket does not
reflect any substitution of parties thereafter. We refer to the
remaining defendant, Joan M. Shea, as "the defendant"
throughout.

3 Joan M. Shea.
proper review, we vacate the judgment and remand for further

proceedings.

Background. This case originated as a dispute over a

family trust. The plaintiff is the trustee of the Frances S.

Adams Trust. Frances S. Adams, who passed away in 2016, was the

plaintiff's mother's sister. In 2017, the plaintiff brought

this action against her mother's brother, Richard M. Shea, and

his wife (the defendant), alleging improprieties with respect to

trust assets, among other things. Richard Shea and the

defendant counterclaimed against the plaintiff, and filed a

third party complaint against the plaintiff in her individual

capacity, alleging similar improprieties. During the protracted

litigation, the plaintiff's mother and Richard Shea passed away.

As the case progressed to trial in 2024, the plaintiff and the

defendant began talking of settlement.

On June 7, 2024, the defendant's counsel told the

plaintiff's counsel that "family photos" could be provided to

the plaintiff as part of a settlement of the case. He went on

to say that the defendant would be willing to contribute

$10,000, in the name of Adams, to a charity in order to resolve

the litigation. On June 10, 2024, the plaintiff's counsel

responded, "Conceptually, and subject to getting to a formal

agreement, I think we have the framework for a deal." He

requested that the defendant's counsel draw up a settlement

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agreement including certain provisions, specifically one which

required the defendant to turn over to the plaintiff "family

papers, photographs" and added, "I[t] would be helpful to know

what exactly [the defendant] still has in terms of papers,

files, photos so I can let [the plaintiff] know." The following

day, the defendant's counsel provided a draft settlement

agreement.

On June 20, 2024, the plaintiff had an opportunity to view

the photographs and documents proposed to be delivered. She was

not satisfied with the production and thereafter specified what

she expected to receive as family photographs and documents.

After further discussion failed to resolve the issue, the

plaintiff stated to the defendant's counsel on June 26, 2024, "I

don't know what you are going to do about this but I think you

might want to talk about this with your client. This is a very

important aspect of the settlement and the current production is

not sufficient. This changes things."

Subsequently, defense counsel made further attempts to

satisfy the plaintiff with respect to the production of

photographs, to no avail. On July 1, 2024, the plaintiff

expressed her frustration and disappointment, and said that she

still expected photographs to be provided to her irrespective of

any settlement and that if the defendant wanted to settle, it

was incumbent on her "to make an offer she can and will

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perform." More discussion regarding photograph production

ensued. On August 2, 2024, the defendant's counsel sent the

plaintiff an e-mail message, attaching a draft settlement

agreement, asserting that it reflected an agreement reached by

the parties. With respect to the family photographs, this draft

settlement agreement provided that the defendant was to deliver

to the plaintiff

"approximately 300 original family photographs depicting
members of the Shea and/or Adams families, which [the
plaintiff] is entitled to keep; . . . [and] digital copies
(prepared by a professional digitizing company, at [the
defendant's] sole cost) of certain photographs which [the
plaintiff] separated and/or flagged on August 1, 2024."

Defense counsel requested that the plaintiff sign the agreement

or at least authorize her attorney to report the matter settled;

otherwise, he would move to enforce the settlement agreement.

The plaintiff did not sign the agreement, and the matter

was not reported settled. On August 13, 2024, the defendant

filed an emergency motion to enforce settlement agreement,

supported by an affidavit of the defendant. The plaintiff filed

an opposition supported by her own affidavit. On August 22,

2024, the parties appeared in court for the final pretrial

conference for the trial scheduled for August 26, 2024. At that

time, the judge heard counsel on the motion to enforce

settlement agreement. The following day, the judge allowed the

motion and issued a dismissal nisi order, requiring the parties

4
to submit an agreement for judgment or stipulation of dismissal

within a month. When the parties failed to do so, the judge

dismissed the case.

Discussion. "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." Targu Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct.

421, 428 (2010). We review de novo the judge's legal

determinations, such as whether a contract exists or whether an

ambiguity exists within it. See Basis Tech. Corp. v.

Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008). We review

the factual finding of the parties' contemporaneous intent to be

bound under the "clearly erroneous" standard of Mass. R. Civ. P.

52 (a), as amended, 423 Mass. 1402 (1996). Basis Tech. Corp.,

supra.

Here, the judge made no findings concerning the terms of

the agreement or the parties' intent, having concluded that the

parties did not dispute the existence of a settlement agreement.

Although the plaintiff agreed that the parties had reached an

agreement in principle, the record is unclear whether, and if

5
so, when and on what terms, the parties agreed to be bound. The

defendant contends that an enforceable agreement was reached on

June 10, 2024, when the plaintiff's counsel said that they had

"the framework of a deal," essentially consisting of a $10,000

payment and the delivery of family photographs and papers. At

that point, however, the parties had not confirmed, or even

discussed, what constituted family photographs and papers.

Indeed, in the very same message, the plaintiff's counsel

inquired as to the extent of the photographs and papers in the

defendant's possession.4

The plaintiff stated, through counsel, that she would need

to take a look at the production before signing an agreement.

Soon thereafter, the plaintiff had an opportunity to view the

photographs and documents and determined that they did not

comport with her expectation of what she would receive in

exchange for dismissal of the suit. Within two weeks of the

"framework of a deal" being struck, the plaintiff communicated

her intention not to settle on the terms initially discussed.

Nevertheless, almost two months later, the defendant sought to

enforce a written settlement agreement to which no assent

appears in the record.

4 The defendant initially represented that she had a
"shoebox" full of photographs and no other family documents.
Over time, additional photographs and family documents were
disclosed.

6
Although the plaintiff's counsel characterized the

situation as one of "mutual mistake" or "failure of

consideration," his argument could reasonably be construed to be

that there was no meeting of the minds with respect to the

family photographs and documents. The judge determined that

"any mistake was unilateral and based on [the plaintiff's]

unconfirmed assumptions about what family photos [the defendant]

had" and that "a unilateral mistake does not void the settlement

agreement." Whether the judge was correct as a matter of law

depends on the factual questions of whether, at what point, and

on what terms the parties intended to be bound. We therefore

vacate the judgment of dismissal and remand this matter to the

trial court for further proceedings, which may include the

taking of additional evidence on the defendant's motion to

enforce settlement agreement, should the defendant choose to

pursue the motion.5

So ordered.

By the Court (Rubin, Shin &
Singh, JJ.6),

Clerk

Entered: April 21, 2026.

5 The defendant's request for attorney's fees is denied.

6 The panelists are listed in order of seniority.

7