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

22-P-961

GIUSEPPE CRACCHIOLO & another 1

vs.

BRADLEY K. BASS & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Bradley Bass appeals from a judgment entered after the

judge assigned to these matters allowed the plaintiffs' motion

to enforce a settlement agreement. The crux of Bass's argument

on appeal is that the judge's finding that Bass had intended to

be bound by the terms of an unsigned settlement agreement is

clearly erroneous. In addition, among other things, 3 Bass argues

that, in light of his pro se status, he should have been given

1 Maria Cracchiolo.

2 Jean 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.

3 To the extent Bass is attempting to raise additional arguments,
they are difficult to discern from his brief and, in any event,
do not rise to the level of appellate argument.
more time to prepare an opposition to the motion to enforce the

settlement, that the judge timed the entry of judgment to thwart

him from taking an interlocutory appeal, and that the judge made

misleading statements during the June 6, 2022 pretrial

conference that induced him to enter into the settlement. Bass

also argues that the judge erred in not deciding his motion for

judgment on the pleadings before entering judgment. We affirm.

Bass's late mother, who died intestate, owned a property on

Harriet Road in Gloucester. After Bass and his two siblings

(Bass siblings) became personal representatives of their

mother's estate, they entered into a purchase and sale agreement

(P&S) with the plaintiffs to sell them the property. The sale

never took place. The plaintiffs brought the underlying actions 4

seeking, among other things, to compel specific performance of

the P&S. Subsequently, the Bass siblings sought leave to bring

a third-party complaint against attorney Sean Z. Keough, who had

represented them in the probate proceedings. On May 2, 2022,

the Bass siblings sought to bring a third-party complaint

against the Massachusetts Housing Finance Agency (MassHousing)

after MassHousing gave notice of foreclosure of its mortgage on

4 The 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.

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the property; they also sought an injunction against the

foreclosure. At a hearing on May 9, 2022, MassHousing agreed to

postpone the foreclosure until July 1, 2022. The cases were in

this posture when the following actions, hearings, discussions,

communications, and statements concerning settlement took place.

On May 19, Bass sent an e-mail message to plaintiffs'

counsel referring to settlement discussions and setting out a

demand that the plaintiffs "come to $460K to get this done." On

May 20, 2022, Bass sent another e-mail message to counsel for

the plaintiffs, stating:

"Here is the deal.

"I will sell your clients the house for $450K. We
want an additional $10K to release all claims. I need
a yes or no in the next hour."

Not long thereafter, Bass sent a follow-up e-mail message

saying, "Write it up for $445 and $5K." A few hours later,

after plaintiffs' counsel noted that Bass would need to close

the probate to deliver clear title, Bass sent another e-mail

message to plaintiffs' counsel stating:

"We agreed to $445K and $5K in principle. You agreed, we
agreed."

On May 22, 2022, Bass sent an e-mail message to plaintiffs'

counsel to "clarify our terms" and stating, among other things,

that "[w]e sell your clients the house for $450K as part of a

global settlement with Sean Keough."

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At a status conference held on May 23, 2022, the parties

reported that they were having ongoing settlement discussions.

The following day, Bass sent an e-mail message to

plaintiffs' counsel with the subject matter "One remaining

condition." He stated: "We are settling this case based on the

belief that your clients will be buying the house to live in

it."

On May 28, 2022, Bass told counsel for attorney Keough to

draft up the settlement based on Keough paying $72,000 and the

plaintiffs paying $450,000 for the property.

At a status conference on May 31, 2022, the parties

reported that they were close to a settlement agreement.

Despite that progress, the judge set the cases down for trial on

June 7 - 10, 2022, with a pretrial conference set for June 6,

2022. Later that day, counsel for attorney Keough circulated a

draft settlement agreement to plaintiffs' counsel for review.

The draft reflected the terms set out in the May 28 e-mail

message.

On June 2, after a neighboring property went on the market

for $1.5 million, Bass wrote to all counsel that "it has been

over a week since we agreed to a settlement in principle, but we

have not seen [a draft settlement] agreement yet, I think we are

best off going to trial." Counsel responded that a draft would

be circulated in two hours, which in fact it was. That draft

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agreement again reflected that attorney Keough would pay

$72,000, and that the plaintiffs would buy the property for

$450,000. Also on June 2, 2022, Bass wrote that "[w]e agreed in

our hearing with Judge Foster to closing on June 30th and during

our post hearing zoom -- it was agreed upon. We need to stick

to the agreed upon terms."

On June 5, 2022, counsel for attorney Keough wrote that he

and Bass had connected and cleared up a few points and had "very

few remaining actions open."

At 8:36 A.M. on June 6, 2022 -- the date of the scheduled

pretrial conference -- counsel for the plaintiffs sent through

an e-mail message a revised settlement agreement showing changes

from the previous draft. Again, the essential terms remained

that attorney Keough would pay $72,000 and that the plaintiffs

would pay $450,000 for the property. There were only two

changes to the agreement: one eliminated the requirement that

Bass use the Keough payment to satisfy the MassHousing mortgage;

the other merely called for the purchase price to be paid in one

lump sum of $450,000, rather than in a preliminary $5,000

payment with $445,000 to follow.

The docket reflects that, at the pretrial conference on

June 6, 2022, the parties reported the case settled. The

transcript of the hearing shows that the following exchange took

place after the Basses were sworn:

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THE COURT: ". . . Where do we stand here?"

PLAINTIFFS' COUNSEL: "Your honor, I think we're in good
shape. It's been a bit of a bumpy road the last week or
so. Yesterday, [Bass] and I had a good conference call,
and I believe we have this settled in principle. Jen got
up early this morning and has worked on the settlement
agreement, which in all fairness to the Basses, they
probably saw it around 8 a.m. so they may not have had time
to review it all.

"But I would like to report to the Court that we have
it settled subject to completion of that settlement
agreement, with a closing on June 30th. So I think the
goal today would be to stay this action until we can
actually -- we're going to be able to dismiss it if the
settlement comes through, because the settlement
contemplates our turning the property back over to the
Basses if we don't close on June 30th."

THE COURT: "Mr. Bass?"

MR. BASS: "I agree with him."

THE COURT: "OK. Ms. Bass, you agree?"

MS. BASS: "Yes, I do."

THE COURT: "Ms. Barry?"

MS. BARRY: "I do."

Based on these representations, the trial was removed from the

court's docket.

In an undated letter, the Bass siblings wrote to counsel

for attorney Keough and counsel for the plaintiffs in which they

acknowledged that although a "verbal settlement agreement [had

been] agreed to on Sunday, June 5, 2022," they were nonetheless

withdrawing from it based on their concerns about differing

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dates of signatures on a document called "Rider I." 5

Nonetheless, the Bass siblings stated that, if their concerns

over the signature dates were satisfied, they were still willing

to complete the settlement that had been agreed to.

On June 10, 2022, the Bass siblings filed a motion for

judgment, indicating that they no longer agreed to the

settlement, and on June 14, 2022, they filed a statement

withdrawing from the settlement agreement. At the same time,

their motion for judgment sought specific performance of the

purchase of the property by the plaintiffs. However, Bass

wanted adjustments made to the purchase price based on the

passage of time and the increase in real estate values.

On June 15, 2022, the parties appeared for a status

conference during which Bass represented that the defendants

were withdrawing from the settlement agreement on the ground

that the plaintiffs had acted in bad faith. When asked why the

Bass siblings were withdrawing from the settlement, Bass

acknowledged that he had agreed to the settlement and that he

had represented to the court on June 6 that the case had been

settled. He stated that the issue surrounding Rider I and the

date on which it was signed was what caused him to withdraw from

5 It is not clear from the appellate record what Rider I was.
But no one challenges the judge's description of it as an
extension of the P&S.

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the settlement. In brief, the electronically signed version of

Rider I had a different date of execution than the version that

was signed in handwriting. Bass's view was that the date of

execution on one of the versions of Rider I was either false or

forged and that his contention in this regard justified stepping

away from the settlement. In the end, Bass stated to the judge

the Bass siblings needed to sell the property, wanted to sell it

to the plaintiffs, were able to complete the settlement, but

that he did not want to release the plaintiffs from any claims

so that he could pursue them further for the "windfall" of

getting the property. Counsel for the plaintiffs countered that

they intended to file a motion to enforce the settlement. The

judge ordered that any such motion be filed by the end of the

day, including the terms of the agreement, and that any

opposition be filed within two days thereafter.

As anticipated, the plaintiffs filed a motion to enforce

settlement. Bass's opposition to the motion stated, among other

things,

"The house next to ours did sell for over a million
dollars -- it totally influenced us, though, that is why it
went under contract on Saturday, June 4th and we went to
Court on Monday, June 6th and told the court we agreed to a
settlement [emphasis added]."

On June 21, 2022, the judge held a hearing on the motion to

enforce settlement, at which the Bass siblings chose not to

appear. The judge then allowed the motion in a detailed and

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thoughtful memorandum explaining his analysis and reasoning.

The Bass siblings subsequently moved for reconsideration, which

was also denied and judgment thereafter entered. This appeal

followed.

Discussion. Bass's primary argument on appeal is that the

judge erred in finding that the parties had reached a settlement

as of June 6, 2022, when they appeared for the pretrial

conference. We review the judge's factual determination for

clear error. 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.'"

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

212-213 (2008), quoting Demoulas v. Demoulas Super Mkts., Inc.,

424 Mass. 501, 509 (1997).

Bass has failed to show clear error here. The record

easily permitted the judge to find that when the Bass siblings

stated that they agreed with plaintiffs' counsel's report that a

settlement had been reached, the parties had in fact reached

agreement on all material terms of the agreement. Indeed, Bass

himself did not dispute that, on June 6, he informed the judge

that a settlement had been reached. Nor does he identify any

material term of the settlement that had not been reached by

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that date. See Situation Mgt. Sys., Inc. v. Malouf, Inc., 430

Mass. 875, 878 (2000) (to create enforceable contract, there

must be agreement on all material terms). Nor could he credibly

do so. The record before the judge showed that the parties had

been in agreement on the material terms of a settlement over

several versions of the draft written contract: attorney Keough

would pay $72,000 to the Bass siblings, and the plaintiffs would

pay $450,000 for the property with a closing on June 30, 2022.

Instead, Bass argues that his post-agreement discovery that

there were two different versions of Rider I signed on different

days justified "withdrawing" from the settlement agreement. A

material breach of a contract may, in appropriate circumstances,

justify the other party from walking away from a contract and no

longer being bound by it. See G4S Tech. LLC v. Massachusetts

Tech. Park Corp., 479 Mass. 721, 734 (2018). "[A] material

breach of a contract occurs when the breach concerns an

essential and inducing feature of the contract [quotation

omitted]." Id. at 733-734 The judge did not err in concluding

that the signature date of Rider I was not a material term of

the settlement. Indeed, the only references to Rider I were in

two whereas clauses in an exhibit to the draft settlement

document, and those references merely recited extension dates

contained in Rider I. The agreement imposed no obligation on

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the plaintiffs with respect to Rider I, let alone one that they

could be said to have breached.

In light of our conclusion that the judge did not err in

finding that the parties had reached agreement on all material

terms of a settlement by June 6, when they all reported the case

settled, we need say little about Bass's remaining arguments.

We are unpersuaded by Bass's contention that the judge conducted

the June 6 pretrial conference in a manner that induced him to

report the case settled. The transcript shows that the parties

reported the case settled at the outset of the conference; at

that point the judge had done nothing more than inquire as to

the status of things. We also discern no abuse of discretion in

the judge's schedule for briefing the motion to enforce

settlement, nor did Bass object below to the timetable.

Although the judge imposed tight deadlines for the submissions,

he did so with an equal hand on both sides. Bass was not

entitled to special treatment as a self-represented litigant.

See Briscoe v. LSREF3/AH Chicago Tenant, LLC, 481 Mass. 1026,

1027 (2019), quoting International Fid. Ins. Co. v. Wilson, 387

Mass. 841, 847 (1983) ("A pro se litigant is bound by the same

rules of procedure as litigants with counsel"). We also see no

support in the record for Bass's contention that judgment

entered prematurely for the purpose of depriving him of an

interlocutory appeal. In any event, Bass has failed to explain

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how an interlocutory appeal would have provided something that

this full appeal does not. Finally, having allowed the motion

to enforce settlement, the judge was not required to act on any

pending unresolved motions, including Bass's motion for judgment

on the pleadings. 6

Judgment affirmed.

By the Court (Wolohojian,
Shin & Ditkoff, JJ. 7),

Clerk

Entered: October 18, 2023.

6 We allow the appellees' request for an award of attorney's fees
and costs on appeal against Bass. In accordance with the
procedure specified in Fabre v. Walton, 441 Mass. 9, 10-11
(2004), the appellees may, within fourteen days of issuance of
the rescript, submit an application for appellate attorney's
fees and costs with the appropriate supporting materials. Bass
shall have fourteen days thereafter to respond.

7 The panelists are listed in order of seniority.

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