2017 Mass. App. Div. 175

July 21, 2017 - November 8, 2017

Appellate Division Southern District

Court Below: District Court, Quincy Division

Present: Hand, P.J., Finnerty & Kirkman, JJ.

Elton Watkins, III, for the plaintiff.

Kenneth P. Reisman for the defendant.

HAND, P.J. Appellant Keystone Elevator Service & Modernization LLC ("Keystone") sued appellee Jay Shoostine, as he is Trustee of 70 Sewall Avenue Condominium Trust ("Trustee"), for breach of an elevator service contract. The matter was tried jury waived, and the court, finding the language of the contract's renewal provision to be ambiguous, ruled in favor of the Trustee on Keystone's breach of contract claim. [Note 2]

The language critical to this appeal, and drafted by Keystone, follows:

"The service specified shall commence on November 7, 2013 and is to continue until terminated. Either party may terminate this Agreement at the end of the first one year period with the option to extend for an additional three (3) years at the end of the first year anniversary date period by giving the other party at least 60 days prior written notice."

This language is susceptible of at least two different interpretations: either that the contract would automatically extend for three years unless terminated at the end of the first year, with sixty days prior written notice, or that the option to extend could be exercised by either party's affirmatively giving the other party sixty days written notice. The interpretation of this provision is critical to Keystone's claim that, the Trustee's having failed to terminate the contract at the end of the first year, the contract had extended for an additional three years, and that the Trustee's subsequent termination of the contract via e-mail on December 9, 2014, was wrongful.

Whether a contract is ambiguous is a question of law, Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 287 (2007), and is not necessarily established by the parties' failure to agree on the proper construction of the contract language. Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995). The test is objective: a contract is ambiguous "only if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one." Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998). In this case, the critical language concerning extension and termination of the parties' contract is fatally unclear.

Page 176

Keystone's efforts at grammatical exegesis notwithstanding, we see at least two equally defensible interpretations of the essential paragraph. We agree with the trial judge that, as a matter of law, the contract language is ambiguous.

Like the trial judge, we also conclude that the ambiguity must be construed against the drafter, Keystone. Affiliated FM Ins. Co. v. Constitution Reinsurance Corp., 416 Mass. 839, 845 (1994). Reading the disputed provision in the contract as the Trustee does, and against Keystone, we agree that Keystone's breach of contract claim fails. The judgment against Keystone is affirmed.

While we affirm the judgment against Keystone, we do not find that its appeal is frivolous or that it was argued in bad faith. Accordingly, we deny the Trustee's request for sanctions and costs against Keystone pursuant to Dist./Mun. Cts. R. A. D. A. 25.


[Note 1] As Trustee of 70 Sewall Avenue Condominium Trust.

[Note 2] The court ruled against the Trustee on the Trustee's counterclaims. The Trustee has not appealed that decision.