GIUSEPPE CRACCHIOLO & Another v. BRADLEY K. BASS & 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

24-P-537

GIUSEPPE CRACCHIOLO & another1

vs.

BRADLEY K. BASS & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2023, a panel of this court affirmed a 2022 judgment,

entered by a Land Court judge in two underlying actions,3 for

specific enforcement of the parties' settlement agreement under

which the defendants agreed to sell certain real property to the

plaintiffs on or before June 30, 2022. Cracchiolo v. Bass, 103

1 Maria Cracchiolo.

2Jean E. Bass and Catherine A. Barry, as personal
representatives of the estate of Cindy L. Bass; neither is a
party to this appeal. Bradley Bass is sued in his individual
capacity and as personal representative of the estate of Cindy
L. Bass.

3The plaintiffs filed suit in both the Superior Court and
the Land Court. The Land Court judge was interdepartmentally
assigned as a justice of the Superior Court to handle the
Superior Court claims in addition to those asserted in the Land
Court complaint.
Mass. App. Ct. 1110 (2023). Further appellate review was

denied. After issuance of this court's rescript affirming the

judgment, the judge issued an order to enforce it, dated January

29, 2024 (enforcement order). Among other things, the

enforcement order set a closing date of February 29, 2024, and

required the defendants to convey good, clear, and marketable

title, by satisfying the balance of any liens on the property

not paid from the purchase price. The defendant Bradley K. Bass

appealed. We affirm the enforcement order.

1. Closing date. Pointing to the fact that the settlement

agreement's original closing date was June 30, 2022, and the

judgment required specific enforcement of that agreement, Bass

argues that the judge had no jurisdiction or authority to

"modify" either the judgment or the settlement agreement by

setting a new closing date of February 29, 2024. We conclude

that his arguments are not only unpersuasive, but frivolous.

Bass asserts that under the principle of functus officio, a

court's jurisdiction ends once final judgment has issued, unless

the judgment itself explicitly reserves the court's power of

modification or else a party seeks modification under procedures

such as those established by Mass. R. Civ. P. 60, 365 Mass. 828

(1974). But "it is doubtful the principle [of functus officio]

continues to be recognized outside the arbitration context."

Bank of Am., N.A. v. Casey, 474 Mass. 556, 563 (2016). Even if

2
the functus officio principle retains any broader vitality, Bass

cites no authority for applying it to a court's judgment or its

jurisdiction, as opposed to an arbitrator's award or a document

prepared by party. See id. at 562.

In any event, the 2022 judgment ordered and declared that

the settlement agreement "will be specifically enforced," thus

expressly recognizing that further enforcement orders could be

issued if the parties did not perform their obligations under

the settlement agreement. A court's power to do so is reserved

by Mass. R. Civ. P. 70, 365 Mass. 836 (1974). See G. L. c. 185,

§ 25A (Land Court's authority to enforce its judgments). "Among

a judge's inherent powers is the authority to make the court's

lawful orders effective." Beit v. Probate & Family Court Dep't,

385 Mass. 854, 859 (1982).

Although the settlement agreement specified a June 30, 2022

closing date and stated that time was of the essence, such a

provision may be waived by a party's words or conduct. See

McCarthy v. Tobin, 429 Mass. 84, 89 (1999) ("Once there was a

waiver, time was no longer of the essence"). Here, the

defendants' refusal to close by June 30, 2022 -- because they

wished to appeal the judgment requiring specific performance of

the settlement agreement -- constituted a waiver of their right

to insist on the closing date specified in the agreement.

3
Similarly, judicial estoppel bars Bass from asserting, as

he now does, that he had no obligation to close once the

original closing date passed. "Judicial estoppel bars a party

from asserting a position directly inconsistent with, meaning

mutually exclusive of, the position asserted in a prior

proceeding where the party convinced the court to accept its

prior position." Bay State Gas Co. v. Department of Pub.

Utils., 459 Mass. 807, 818 (2011). Here, after the 2022 order

for specific performance, Bass sought and obtained a stay

pending appeal. Bass asked "that the status quo be maintained

in this case, as [he] will not be carrying out the order of the

court to convey the title until the appeal process is complete."

The judge was entitled to rely on this statement as a

representation that Bass, if he lost the appeal, would convey

the property as ordered by the judge. Moreover, it was clear

that the appeal process, once initiated by Bass's notice of

appeal filed on June 23, 2022, would not be complete by the June

30, 2022 closing date. Bass thus implicitly agreed that, if he

lost the appeal, a new closing date could and would be

established. Having persuaded the judge to grant a stay pending

appeal, Bass cannot now repudiate the statements he made in

order to obtain the stay.

Specific performance is within a court's general equity

jurisdiction. See Lonergan v. Highland Trust Co., 287 Mass.

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550, 559 (1934). It would be inequitable in the extreme for a

party to violate its obligation to perform by the contractual

deadline, and then, in response to an action seeking specific

performance, escape the party's obligation on the ground that

the deadline had passed and the contract could no longer be

performed. Similarly, when there is an appeal from a decree for

specific performance of an agreement to convey real property by

a date certain, and that date has passed by the time the decree

is held otherwise valid on appeal, "[t]he decree must be

modified . . . as to the time fixed for performance." Epdee

Corp. v. Richmond, 321 Mass. 673, 676 (1947). See Goren v.

Royal Invs. Inc., 25 Mass. App. Ct. 137, 143 (1987) (affirming

judgment for specific performance, as modified to require

closing within thirty days of issuance of rescript). This is

not a modification of the underlying agreement itself, but

rather a modification of the court's order enforcing the

agreement.4 See id. Cf. Normandin v. Eastland Partners, Inc.,

68 Mass. App. Ct. 377, 391 (2007) (judgment for specific

4 Even if the enforcement order were viewed as having
modified the settlement agreement, Bass, as discussed supra, had
already waived his right to insist on the original closing date.
And he had already implicitly agreed, by appealing from the
order for specific performance and obtaining a stay pending
appeal, that if the order were affirmed, he would not object to
a new closing date being established.

5
performance did not alter parties' agreements, but only manner

in which one party was to perform its contractual obligation).

2. Other issues. Bass asserts that the enforcement order,

in requiring the defendants to satisfy the balance of any liens

on the property not paid from the purchase price, impermissibly

required them to "pay a debt they were not contractually bound

to [pay]." This claim is frivolous. Paragraph three of the

settlement agreement obligated the defendants to pay "any other

mortgages and liens encumbering the [s]ubject [p]roperty."

Bass also claims the judge, in "modifying the settlement

agreement," engaged in "judicial overreach" and exhibited

"potential bias." We have carefully reviewed the record and see

no basis for this claim. We see no modification of the

settlement agreement, no action in excess of the judge's

remedial authority, and no hint of bias. To the contrary, the

judge displayed admirable patience throughout the proceedings.

Bass claims that the judge's "decision to alter the

settlement agreement without providing [him] with notice and an

opportunity to be heard violated his due process rights." The

judge did not modify the settlement agreement, however, and in

any event, the docket plainly shows that Bass was given ample

notice and opportunity to be heard before the judge entered the

enforcement order.

6
Bass's reply brief asserts that the order for specific

performance of the settlement agreement is impractical and

unfairly burdensome. These arguments, raised for the first time

in the reply brief, need not be considered. See Mass. R. A. P.

16 (c), as appearing in 481 Mass. 1628 (2019); Travenol Labs.,

Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985).

3. Attorney's fees. The plaintiffs request an award of

their appellate attorney's fees and costs, on the ground that

Bass's appeal is frivolous. "An appeal is considered frivolous

when the underlying case law is settled and there is no

reasonable expectation of a reversal." Pierce v. Clark, 66

Mass. App. Ct. 912, 915 (2006). See Mass. R. A. P. 25, as

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appearing in 481 Mass. 1654 (2019). We allow the plaintiffs'

request.5

Order on motion for order
concerning sale of real
estate, dated January 29,
2024, affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ.6),

Clerk

Entered: June 5, 2025.

5 In accordance with the procedure specified in Fabre v.
Walton, 441 Mass. 9, 10-11 (2004), the plaintiffs may, within
fourteen days of the issuance of this decision, submit an
application for appellate attorney's fees and costs with the
appropriate supporting materials. Bass shall have fourteen days
thereafter to respond. The plaintiffs are reminded of the
limitations on appellate fees recognized in the panel's final
attorney's fees order dated January 3, 2024, in the prior
appeal.

6 The panelists are listed in order of seniority.

8