Author Archives: Anthony Low, Esq.

Contract Signed Over E-Mail – Massachusetts Digital Exchange Laws

Massachusetts Court of Appeals provides guidance on the enforceability of digitally exchanged settlement agreements

The digital age has ushered in novel methods of conducting business, exploring growth opportunities, and seeking restitution.

All of these opportunities were exploited by Daniel and Lisa Duff, a pair of homeowners in Hingham, Massachusetts who sought enforcement of a putative settlement agreement they executed with their former contractors.

In 2010, plaintiffs Daniel and Lisa Duff hired the defendants to perform a renovation project atshutterstock_220971856 their home in Hingham, Massachusetts. Shortly thereafter, a dispute ensued regarding the defendants’ workmanship and their alleged failure to obtain a building permit in a timely manner.

In May of 2012, the Duffs sought redress by initiating arbitration through the State program created in accordance with M.G. L. c. 142A(3).

The following year, on the eve of the assigned arbitrator’s scheduled view of the property, the parties reached an apparent settlement of their dispute.

The email exchange surrounding the announcement of the settlement formed the axis upon which the appellate decision rotated.

The most significant email was dated March 21, 2013, which consisted of vigorous emails between Counsel. Counsel for the Duffs wrote to “confirm what I believe our respective clients have agreed to.” He then listed six terms. Key among those terms were the requirements that the defendants pay the Duffs $27,500, and that the parties “exchange mutual general releases, subject only to the obligations in the settlement agreement.”

Notably, the list of terms did not specify when payment of the $27,500 was due.

The Duffs’ Counsel concluded his e-mail by asking his counterpart to “confirm that I got this right by return e-mail.” Six minutes later, the defendants’ counsel responded, “Confirmed.” Six minutes after that, the Duffs’ counsel sent an e-mail to the assigned arbitrator canceling the scheduled site visit because “I am pleased to report that the parties have reached a settlement agreement.”

The following morning, the coordinator for the arbitration program sent an e-mail to express her happiness “that the parties have settled,” and she requested clarification whether she should “consider this your formal notice of settlement or will you mail written notice of the settlement.”

Counsel for the Duffs responded by stating:
“I believe the parties are planning on preparing and signing a formal settlement agreement and then will file a stipulation of dismissal, with prejudice, of the claims in the arbitration. This may take a week or so.”

Over the next two and one-half weeks, the parties sought to complete a formal settlement document. During that time, Counsel for the Duffs expressed concern over delay, stating that he did not “want to give the clients too much time to rethink this.” As the Duffs acknowledge, some of the delay was caused by a medical issue related to the defendants’ Counsel’s family.

Ultimately, the parties agreed on every provision, except for when payment of the $27,500 was due. The Duffs insisted that payment be made when the agreement was executed, while the defendants insisted that they be given some time to complete payment.

With the final issue at a seeming impasse, on April 8, 2013 the Duffs terminated the still-pending arbitration proceeding by withdrawing their request for arbitration. The following day, they filed suit in Superior Court.

Notably, their complaint did not mention the putative settlement agreement or the abandoned arbitration proceedings. Instead, the complaint simply set forth the Duffs’ underlying claims with regard to the defendants’ work on the renovation project (alleging violations of G. L. c. 93A, breaches of contract, negligence, and misrepresentation).

In response, the defendants filed what was styled as a motion to enforce the settlement agreement and to dismiss the complaint.

The trial court judge allowed motion to dismiss and entered judgment requiring the defendants to pay the agreed-to amount within ten days.

The Duffs promptly appealed.

The Duffs rested their appeal on two alternative theories that lie in opposition to one another.

Argument one is that because the parties never agreed on a specific date when payment was due, any agreement they had reached was too indefinite to constitute an enforceable contract. Without an enforceable contract in place, they argue, they were free to sue on their underlying claims.

Argument two is that the two sides reached a fully enforceable agreement on March 21, 2013, with payment due immediately upon execution of a formal settlement agreement. The Duffs thusly argue that the defendants breached the agreement by refusing to make timely payment, and this breach justified the Duffs in repudiating the agreement.

What followed was an exhaustive examination of what the necessary ingredients are for an enforceable contract.

In their decision, the Massachusetts Court of Appeals maintained that “An enforceable 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.” Targus Group Intl., Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010).

Saliently, the Court noted that there was no suggestion in the record that the parties ever discussed when payment of the agreed-to settlement amount would be due. To the contrary, each side faulted the other for not raising the issue sooner. The Court cautioned, however, that “the presence of undefined or unspecified terms will not necessarily preclude the formation of a binding contract.” Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000).

The discussion then hinged on whether the absence of an agreed-upon specific payment date meant that “significant, material terms were still to be negotiated.” Ibid.

In short, the dispositive issue was whether the absence of a date of remittance would render the contract unenforceable. The court opined that this absence would not destroy the enforceability of the contract.

As authority for their decision, the Court referenced Shea v. Bay State Gas Co., 383 Mass. 218, 223 (1981), quoting from Bryne v. Gloucester, 297 Mass. 156, 158 (1937) (contracts should be interpreted “with reference to the situation of the parties when they made it”). See also McCarthy v. Tobin, 429 Mass. 84, 87-88 (1999) (offer to purchase real estate was binding despite subsequent dispute over entering into purchase and sale agreement)

Addressing the deadline issue directly, the Court stated where a written agreement fails to specify a deadline by which a contractual obligation or right must be exercised, courts may infer that the parties intended a “reasonable” date if this can be done without changing the essence of the contract. See Plymouth Port, Inc. v. Smith, 26 Mass. App. Ct. 572, 575 (1988); Middleborough v. Middleborough Gas & Elec. Dept., 47 Mass. App. Ct. 655, 658 (1999). In turn, “[w]hat is a reasonable period of time depends on the nature of the contract, the probable intention of the parties, and the attendant circumstances.” Plymouth Port, Inc. v. Smith, supra.

Paying careful attention to the digital exchange of communication in this action, the court quoted Accord Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App. Ct. at 212 holding “[E]-mail exchanges between the parties formed a clear and complete agreement . . . [under which t]he material terms were set and agreed upon).

With these principles in mind, the Court concluded that “the agreement the parties reached in their March 21, 2013, e-mail exchange was not fatally indefinite.”

Daniel Duff & Another v. John McKay & Others
Massachusetts Court of Appeals Docket No.: 15-P-634
Date of decision: June 14, 2016.

Anthony J. Low, Esq. is a Managing Partner at the Shapiro Law Group, who focuses his practice in highly charged custody disputes, complex divorce litigation, and general defense litigation. Anthony may be reached at [email protected]

Custody Dispute Laws Massachusetts – Nicoletti v. Bolduc

Nicoletti v. Bolduc 14-P-1125 (November 6, 2015) The November 2015 appeals decision of Nicoletti v. Bolduc 14-P-1125 provides perspective to those whom feel aggrieved by the excessive delays often associated with judgments from the Probate and Family Court.

Nicoletti was an appeal from a modification judgment of the Probate and Family Court (“the trial court”), at which time the trial court awarded sole legal and physical custody of the parties’ daughter to the father. divorce-lawyer-custody sm

After the last day of trial, the trial judge did not issue her findings of fact for 331 days, and did not issue her final judgment until 459 days. Incensed by this delay, the mother appealed, arguing that the delay violated her due process rights and that the the custody determination was not supported by the evidence. The Massachusetts Court of Appeals affirmed the Judgment.

The Mother relied on Standing Order 1-06, which provides that while any judgment “shall be issued” within ninety days of the conclusion of trial, it is an aspirational goal, and not a source of vested rights. The Court recited Fisch v. Board of Registration in Med., 437 Mass. 128, 133 (2002), holding “We do not interpret such aspirational language as binding on the [court], or creating any rights enforceable by the parties to the [custody] action.”

The Appeals Court noted in their decision, that it was fatal to mother’s claim of due process violation that she failed to show evidence at (or after) trial that she was in fact injured by this delay; indeed, she did not take any steps, such as an informal inquiry or action for mandamus, to arrest delay. The Court succinctly reasoned: “the mother was not injured by the delay in the modification judgment; she retained custody of the child for longer than she otherwise would have been entitled.” (quoting Nicoletti v. Bolduc 14-P-1125).

Perhaps the most potent critique of the mother was her “unbridled animus” towards the father throughout the litigation. The Court recounted how the trial judge ordered four face-to-face meetings. At the first meeting, the mother “sat in silence” for thirty minutes, and then “got up and walked away.” At the second meeting, the mother again sat in silence, “kept checking her watch,” and after thirty minutes “got up and left.” At the third meeting she told the father that she was unwilling to forget the past and move forward. When further meetings were scheduled in the presence of a supervisor, the supervisor observed, and reported to the court, that the mother would never agree to anything proposed by the father. (quoting Nicoletti v. Bolduc 14-P-1125).

Ultimately, the Appeals Court concluded that the Mother was not prejudiced by the delay, and that the trial judge’s award of custody to the Father was not against the weight of the evidence. As reasoning, the Court relied upon, inter alia, Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220-221 (2002), in which the Court held that an abject breakdown in communication” attributable to mother’s defiance formed basis for award of custody to father.

The Appeals Court in Nicoletti issued this summary decision pursuant to rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), which is primarily directed to the parties, and therefore may not fully address 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 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).

Summarily, litigants who feel aggrieved by an undue delay in time after the close of the evidence, are advised to take affirmative steps to arrest delay, a rule which Nicoletti has underscored with great detail and precision. Parties are also advised to heed the instructions of the trial judge, in making efforts to narrow the issues presented, in the spirit of amicability.

Source: Nicoletti v. Bolduc 14-P-1125 (November 6, 2015)

Anthony J. Low, Esq. is a Managing Partner at the Shapiro Law Group, who focuses his practice in highly charged custody disputes, complex divorce litigation, and general defense litigation. Anthony may be reached at [email protected]

The Limits of Moral Condemnation – Jankovich v Jankovich – Family Law in MA

In Jankovich v Jankovich (14-P-1703), the Massachusetts Court of Appeals refused to morally condemn a father’s decision to have an extra-marital affair with the parties’ live-in au pair.

Two years prior to their separation in 2012, the parties Jankovich hired a live in au pair, to assist with the needs their children. For the years leading up to the separation, the father explored the limits of a romantic relationship with the au pair. Ultimately, one night, the father left home while the children were sleeping and did not return.

At the divorce trial, the father refused to testify about his ongoing relationship with the live-in au pair. Notwithstanding this absence of testimony, the trial judge concluded that the father had been involved in a long-term relationship with the au pair prior to separation. The mother testified that as a result of the separation, the children began experiencing trauma such as bed wetting, outbursts, and sleeping in the mother’s bed. It was also revealed at trial that the children were unaware of the extramarital affair.

The trial judge also found that the au pair had done nothing to adversely affect the children.

The central issue in Jankovich was not whether – but under what circumstances – it may limit a child’s access to third-persons after divorce.

On appeal, the mother asked the Massachusetts Court of Appeals (in effect) for a moral condemnation of the father’s lifestyle, by preventing the children to be exposed to the au pair.

The Appeals Court refused.

In this particular case, the mother relied on a case called Fort v. Fort, 12 Mass.App.Ct. 411, 415 (1981). However, in that case, the court rejected the mother’s argument, stating: “Our courts must serve a society comprised of groups that are widely disparate in cultural background and moral and religious outlook. The judges who must ultimately determine disputes over custody have the same disparities of outlook as the society they serve. Obviously the individual judge cannot hold up his own moral and religious views as the standard against which he determines the moral fitness of the proposed custodian, for different judges would make conflicting determinations, and ‘the judicial branch of government, with respect to [custody disputes], would become a government of men and not of laws.’ “Ibid.quoting from Reddington v. Reddington, 317 Mass. 760, 765 (1945).

Rather, in a divorce case like Jankovich, the judge’s responsibility is to evaluate the “interpersonal relationships of the persons involved as they affect the well-being of the child or children whose custody is under consideration.” Fort, supra at 418.

The mother continued her argument by citing “compelling parallels” between her case and the case of B.B.V. v. B.S.V., 68 Mass.App.Ct. 12 (2006), where the Court of Appeals imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship. The appeals court rejected the wife’s exhortation that there were “compelling parallels”, and refused to extend the rule of B.B.V. to Jankovich.

Factually, the bar remains high for parties seeking to enjoin children’s exposure to third parties. The foreseeable threshold remains B.B.V., or at least something as extraordinary.

Litigants are thusly cautioned by Jankovich, and cautioned against assuming the responsibility of the judiciary is issue findings of moral condemnation.

Jankovich v. Jankovich
14-P-1703 (November 5, 2015) Anthony J. Low, Esq. is a Managing Partner at the Shapiro Law Group, who focuses his practice in highly charged custody disputes, complex divorce litigation, and general defense litigation. Anthony may be reached at [email protected]

An Adventure into the Pitfalls of Child Support Modification

Lupoli v. Zografos

Authored by: Anthony J. Low, Esq.

Nicholas Lupoli was so convinced that his change in income, new paternal duties, and financial submissions, that he vigorously argued to the Massachusetts Court of Appeals that he deserved of a reduction in his child support obligationdivorce-lawyer-custody sm.

The Massachusetts Court of Appeals did not agree.

Mr. Lupoli (hereafter “the Father”) filed a complaint for modification in the trial court, seeking a reduction of his child support obligation. To be successful in an action to modify a judgment for child support, a petitioner must demonstrate a material and substantial change of circumstances since the entry of the earlier judgment. Whelan v. Whelan, 74 Mass.App.Ct. 616, 620 (2009).

During the trial, the Father’s income received blistering scrutiny from both the Opponent and the Court. It also was examined by a court-appointed Guardian ad Litem. The Father’s argument was straightforward; he modified his hours of employment to have more time with the children of his former marriage. It thusly followed, that fewer hours meant less income. Therefore, (argued the father) there existed a material change in circumstances.

Regrettably, the father’s trial strategy was not water-tight. The father’s brother and business partner
– Salvatore – reported to the court appointed Guardian ad Litem, that he “never hesitated to give [the father] money.” Salvatore also confided that he didn’t approve of the Father having another child with a 19-year old woman. Ultimately, after learning of Salvatore’s GAL confession, the trial judge surmised that the Father was concealing other income. The trial judge’s suspicions were confirmed later in the trial.

The trial court judge also learned that the Father had received so-called “kick-backs” from his employer (also a family business). The benefits included paid health insurance, a vehicle, and fuel for the vehicle. Taken collectively, the father’s income was markedly more than what he represented to the Court.

The Father was found to further misrepresent his assets. It was determined that he had an interest in a property which was purchased for $600,000.00. When assessed in 2009, it assessed at $1.04m. Despite this, the Father represented the property to be worth $600,000.00 on his 2012 financial statement.

On appeal, the Court of Appeals was asked to determine whether the trial judge had committed an abuse of discretion, in not reducing the Father’s child support obligation. See Chin v. Merriot, 470 Mass. 527, 538 (2015).

On appeal, the Father argued, inter alia, that the trial judge had orally accepted most of the Father’s proposed findings of fact at trial. Despite this, the Father claimed the trial judge abused his discretion in denying Father’s prayer for relief.

The Appeals Court concluded that while the trial judge did accept some of the Father’s proposed findings, it did not abuse its discretion, as the judgment was the product of independent judgment, and contained the “badge of personal analysis.” Cormier v. Carty, 381 Mass. 234, 237 (1980) (citation omitted).

The Appeals Court also rejected the Father’s argument, that raising a subsequent child should permit a reduction in his child support obligation. By way of stare decisis, the Court applied the rule of Mandel, which holds “Obligations to a subsequent family . . . should not be considered a reason to decrease existing orders.” Massachusetts Child Support Guidelines II-H (2013). See also Mandel v. Mandel, 74 Mass.App.Ct. 348, 357 n.11 (2009) (husband’s self-imposed, voluntary assumption of his stepson’s expenses should not be a factor in determining his ability to support previous family). See generally Pemberton v. Pemberton, 9 Mass.App.Ct. 9, 13-16 (1980).

Lupoli sends a chilling message to those whom have a purported “iron memory”; those who claim to remember an event often should re-explore the event vigorously before standing on it. The Court of Appeals in Lupoli made it palpably clear that the judiciary has a low tolerance for litigants who are not forthcoming and truthful in their financial disclosures to the Court.

Lupoli v. Zografos
14-P-1450 (November 3, 2015)

Anthony J. Low, Esq. is a Managing Partner at the Shapiro Law Group, who focuses his practice in highly charged custody disputes, complex divorce litigation, and general defense litigation. Anthony may be reached at [email protected]