Cp 200 State LLC v. Ciee, Inc.

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

23-P-435

CP 200 STATE LLC

vs.

CIEE, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, CP 200 State LLC (200 State), brought this

action against its commercial tenant, the defendant, CIEE, Inc.

(CIEE), asserting claims for summary process eviction and breach

of contract. Thereafter, the parties engaged in settlement

negotiations, and a dispute arose as to whether the parties

reached an enforceable agreement. CIEE filed a motion to

enforce, which 200 State opposed. A judge of the Superior Court

denied the motion. Following some additional procedural events,

the parties filed a stipulation for an assented-to final

judgment that preserved CIEE's right to challenge the denial of

its motion to enforce the settlement agreement. A final

judgment entered, and CIEE appeals. We conclude that the

parties had an enforceable agreement and that CIEE's motion to

enforce should have been allowed.
Background. The parties' settlement communications were

memorialized in e-mail messages that CIEE submitted to the

motion judge. As a result, the following facts are undisputed.

See, e.g., Duff v. McKay, 89 Mass. App. Ct. 538, 539 (2016).

On August 25, 2020, at 1:38 P.M., 200 State's counsel sent

an e-mail message offering to "settle the case for $245,000, so

long as payment is made within [seven] days of today by wire."

At 3:40 P.M., CIEE's counsel responded, "The client will agree

to pay [$245,000] within seven days of execution of the

settlement agreement, which we expect would be promptly

accomplished. This assumes tomorrow's hearing is postponed (so

that no money is spent on that). You can take first cut at the

agreement. Deal?" At 3:59 P.M., 200 State's counsel replied as

follows:

"We have a deal provided the parties agree to and execute a
written settlement agreement, which I will draft for you[r]
review.

"My office will contact the [c]ourt and take down
tomorrow's hearing. If we cannot work out a written
settlement agreement then my client reserves its right to
put the hearing back on at a later date."

However, later that evening, at 7:04 P.M., 200 State's

counsel sent another e-mail message stating that "another layer

of approval [was] needed," that the parties "d[id] not have a

deal yet," and that the following day's hearing was "still on."

At 7:49 P.M., CIEE's counsel replied, "Keep me posted. Our

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understanding is we accepted your offer. Let's wrap this up.

Thanks." The following morning, at 10:13 A.M., CIEE's counsel

followed up to ask, "Where are we on this?" and to say, "I have

held off alerting the client, since it is likely to go

ballistic. I know from our discussions yesterday that if the

hearing happens, all bets are off and we are back to zero." At

11:11 A.M., 200 State's counsel provided a "revised" offer of

$489,827.80, plus attorney's fees. At 11:15 A.M., CIEE's

counsel advised, "Your withdrawal of the offer comes too late.

We have already accepted your prior offer, and the parties have

a deal."

Discussion. Contract formation requires "manifestation of

mutual assent." I & R Mechanical, Inc. v. Hazelton Mfg. Co., 62

Mass. App. Ct. 452, 454-455 (2004). "The manifestation of

mutual assent between contracting parties generally consists of

an offer by one and the acceptance of it by the other." Id. at

455. If a purported acceptance includes "[a] substantial

variation in contract terms," the "purported acceptance is not a

binding acceptance but a counter offer" that must be accepted

before a contract is formed. Massachusetts Hous. Fin. Agency v.

Whitney House Assocs., 37 Mass. App. Ct. 238, 241 (1994). In

other words, "there must be agreement between the parties on the

material terms of th[e] contract, and the parties must have a

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present intention to be bound by that agreement." Situation

Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000).

On August 25, the parties agreed to all material terms.

200 State offered to settle for $245,000. CIEE counteroffered

that it would pay $245,000, assuming that the following day's

hearing was postponed. 200 State responded that the parties

"ha[d] a deal," provided they could agree to and execute a

written agreement. 200 State also agreed to contact the court

about postponing the following day's hearing and to draft the

written agreement. At that time, the parties were in agreement

on all material terms, and a contract was formed. See Situation

Mgt. Sys., Inc., 430 Mass. at 878. The fact that the parties

contemplated the execution of a written agreement does not alter

our conclusion. "No contract otherwise binding is to be treated

as a nullity solely because it is a contract to execute still

another document or instrument in the future" (citation

omitted). Targus Group Int'l, Inc. v. Sherman, 76 Mass. App.

Ct. 421, 429-430 (2010). 1

1 200 State argues that the proposition asserted in Targus Group
Int'l, Inc., 76 Mass. App. Ct. at 429-430, is inapposite
because, here, the execution of a written agreement was a
condition precedent to the formation of the parties' agreement.
This argument was not raised below and is waived. See Carey v.
New England Organ Bank, 446 Mass. 270, 285 (2006). Below, 200
State argued that it could "not be bound by a brief, disjointed
email exchange that was not unequivocal, unconditional, or
intended to be final on all material terms." In context, this
brief statement went to whether the parties reached an agreement

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We are unpersuaded by 200 State's argument that the

postponement of the hearing was a condition precedent to the

formation of the parties' agreement. "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. Here, the postponement of the hearing did not

pertain to an issue of offer or acceptance; it was a term of the

parties' agreement. See, e.g., Yiakas v. Savoy, 26 Mass. App.

Ct. 310, 313 (1988) (condition that buyer deliver satisfactory

letter of credit did not pertain to offer or acceptance).

To the extent 200 State argues that its obligations under

the settlement agreement did not mature because the hearing went

forward, the argument is unavailing. "[I]t 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). The postponement of the hearing

on all material terms, not whether the execution of a written
agreement was a condition precedent to the formation of the
parties' agreement.

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was within 200 State's control. The e-mail message that 200

State's counsel sent at 3:59 P.M. on August 25 said that 200

State would contact the court to postpone the hearing. 200

State then declined to do so, and instead attempted to

renegotiate the parties' settlement agreement. Where 200 State

prevented the postponement of the hearing, 200 State cannot take

advantage of the fact that the hearing went forward. See id.

Viewed in a different light, once 200 State agreed to postpone

the hearing, 200 State became contractually obligated to do so.

200 State's failure to postpone the hearing was a breach of its

obligations, and 200 State cannot benefit from its own breach.

Cf. John Hetherington & Sons, Ltd. v. William Firth Co., 210

Mass. 8, 21 (1911) ("fundamental principle of law upon which

damages for breach of contract are assessed is that the injured

party shall be placed in the same position he would have been

in, if the contract had been performed").

The judgment is vacated, and the matter is remanded for

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entry of an order enforcing the settlement agreement reached on

August 25, 2020. 2

So ordered.

By the Court (Vuono, Milkey &
Hand, JJ. 3),

Assistant Clerk

Entered: March 25, 2024.

2 200 State's request for appellate attorney's fees is denied.
3 The panelists are listed in order of seniority.

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