ELEVEN 40, LLC v. ELEVEN HUNDRED THIRTY WASHINGTON STREET, LLC

Plaintiff's motion to enforce settlement agreement, filed July 18, 2012, and opposed in writing by the defendant on August 9, 2012, came on before the court (Piper, J.) for hearing August 14, 2012. After hearing, the court, for substantially the reasons set forth in the Plaintiff's moving and supporting papers, and for the reasons at length laid upon the record from the bench, ALLOWED the motion to enforce.

Without limiting or modifying those reasons, the court has ruled that:

The parties' agreement to settle this litigation is reflected in the written agreement signed by the parties' authorized representatives at the end of their successful mediation session before the mediator, Attorney Wofford, on April 25, 2012. This written agreement is embodied in the letter drafted by defendant's counsel, Mr. Michaels, dated November 25, 2012, as amended and supplemented by the handwritten annotations and addendum executed on April 25, 2012, all in the form of Exhibit A to the motion to enforce. Counsel agree that this is the form of the papers signed up at the mediation session's conclusion.

An agreement to settle is a contract, whose existence is to be determined, and whose terms are to be interpreted and governed, by the same legal principles applicable to all contracts. See generally, Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29 (2008) and Lunenburg v. Alleva, 15 LCR 386 (2007)(Long, J.). "To create an enforceable contract, the parties must have had the intention to be bound by their agreement at the moment of its formation." Basis Technology Corp., 71 Mass. App. Ct. at 39. See also Targus Group Int'l v. Sherman, 76 Mass. App. Ct. 421 , 428 (2010): "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." While the statement in a writing that there are "deferred documents" to follow may suggest that a contract has not yet gelled, "a present agreement upon all material terms could reduce the later document to mere memorialization of an existent agreement." Basis Technology Corp., 71 Mass. App. Ct. at 40. "To ascertain intent, a court considers the words used by the parties, the agreement taken as a whole, and surrounding facts and circumstances." Id. at 41, quoting Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39 , 45-46 (1991).

Defendant raises only a few primary points in opposition to the motion to enforce. First, defendant contends that the Exhibit A writing does not represent a fully-integrated, final agreement - that it is but a first step towards a possible global and definitive agreement for settlement, and that achievement of that binding agreement was contingent on the execution of later, more elaborative documents.

The court, having"examine[d] the text of the terms for the incompleteness and indefiniteness charged by [the defendant]," Basis Technology Corp., 71 Mass. App. Ct. at 38, discerns none to exist, certainly not to the degree that would support the view that a full and final deal had not been struck on April 25th. The writing, though far from a polished exemplar of legal craftsmanship, and certainly not nicely typed-up in pristine form, is a more than ample and detailed recitation of a fleshed-out settlement. "...[T]he law does not demand impracticable precision from contracting parties." Targus Group, 76 Mass. App. Ct. at 432. The April 25th document covers and resolves many varied points of give and take between the litigants, and leaves to later documentation only memorializing, more refined, documents, to be produced for recording in the Registry of Deeds. That the parties sought to have their title and boundary dispute put to rest of record, with engineered plans and cleanly drafted conveyancing instruments - which necessarily take some further time to produce - does not mean that the April 25th writing lacked definiteness or completeness. All the essential terms are in it.

The parties have in their signed writing agreed to the establishment of easements over defendant's land in favor of Plaintiff's; have located the route of the easements with clarity; have included provisions for the laying out, improving, and maintaining the easement rights and the area subject to them; and have specified payments the defendant will receive out of an escrow (set up in the writing) upon accomplishment of stated steps. They have addressed the disposition of their pending litigation in both this court and the Superior Court Department, as further consideration for the settlement. The agreement sets out timeframes and procedures for seeing the process through to full consummation. The detail is quite adequate.

At the hearing, defendant advanced the view that the settlement writing of April 25th did not do justice to the issue of the fence defendant sought to install (or to retain the right to install), just at the edge of the three-foot wide strip of defendant's land, over which plaintiff will enjoy a right to pass. Defendant says that the agreement leaves ambiguous defendant's right in this regard, and so does not constitute a firm agreement on all essential terms.

But that position is contrary to the plain terms of the April 25th annotated letter which constitutes the settlement agreement. The third numbered paragraph of the earlier, November 22, 2011 letter which, if it had been adopted by the parties, would have reserved to defendant the right to install a chain link fence at the edge of the three foot strip, was crossed out. This rejected provision was replaced with a substitute paragraph three, in the handwritten addendum, which, with much detail, calls for the parties to install "arbor vitaes" of specified dimensions within five feet of the property line. The meaning of this addendum is not hard to discern. Instead of the defendant's requested fence, the parties agreed instead that within the further two feet adjoining the three-foot passage easement strip there would be placed and maintained certain carefully identified plantings. To the extent defendant now contends that the agreement means something different - that defendant only committed to let these plantings go in temporarily, subject to defendant's election to have them taken down (and replaced with the fence which it asked for unsuccessfuly in its superceded November letter)--that construction of the agreement is untenable. No "reasonably intelligent persons would differ as to which meaning [of this aspect of the April 25th writing] is the proper one," Basis Technology Corp., 71 Mass. App. Ct. at 36, and the court finds no ambiguity present. Rather, the defendant's attempt to recharacterize the addendum's arbor vitae provisions as precatory, and those plantings as capable of being undone (and replaced with a chain link fence) at the unilateral election of the defendant, seems a repudiation, after the fact, of the agreement bargained for and struck on April 25th. See Basis Technology Corp., 71 Mass. App. Ct. at 41: "...Amazon was attempting to renounce its genuine original intent and was seeking an escape hatch from the ... term in the settlement agreement."

Defendant also points to the fact that the writing signed on April 25th called for dismissal with prejudice of "[a]ll pending Court proceedings between the parties," but the dismissal which has been entered in the Suffolk Superior Court action appears to be without prejudice. Defendant is correct to raise this objection. The consummation of the settlement needs to hew to the terms of the signed agreement, and the disposition of the Superior Court case, as well as of this one, needs to be set out clearly as final and with prejudice. The parties will need to take the appropriate steps with both courts to see to that.

The defendant's additional objection lacks merit. Defendant argues that the April 25th writing confers on plaintiff rights and benefits which it never could have secured had the case been tried to and decided by the court. It is in the nature of settling litigation by consent, however, that parties agree to a variety of terms to make the deal palatable to each of them. It matters not that some of the advantages the parties secure in their settlement go beyond what they could have achieved by victory in the courtroom. The settlement agreement is no less binding on them, and no less worthy of enforcement by the court in which the litigation was pending. Nothing in the terms of the April 25th document is offensive to public policy, or otherwise would give the court pause in seeing that the agreement is carried out as written.

In allowing the Plaintiff's motion, the court is mindful that by doing so it brings to an end this litigation, which has been pending with little activity in the court since 2009. Soon after the case was filed, the court had directed the parties to consider and employ mediation; the parties, despite the deadlines the court laid out for deciding if they would mediate, and later prodding inquiries from the court, did not proceed to mediation until prompted by further communication from the court in 2012. The settlement document they did at last reach is one which "culminated from a professional mediation process.... conducted by a recognized expert." Targus Group Int'l, 76 Mass. App. Ct. at 430. The mediation process, while assuredly voluntary, is a valuable and consequential one deserving of judicial support. Where, as here, parties come with their lawyers to formal mediation, understanding that they are engaged in structured negotiations to learn if they can agree on a way to end their litigation, there can be no surprise claimed when a definitive written agreement, executed by well-counseled parties at the end of the mediation, is enforced by the court.

It is

ORDERED that Plaintiff's motion to enforce settlement agreement is ALLOWED. Consistent with the court's colloquy with counsel at the conclusion of today's hearing, they are to confer and to submit to the court for its consideration, by August 24, 2012, a form or forms of a proposed order enforcing the settlement agreement.

So Ordered.

By the Court. (Piper, J.)