DOUGLAS PROPERTIES, LLC, v. GUARANTEED BUILDERS & DEVELOPERS, INC.

I. INTRODUCTION

In 2008, Douglas Properties, LLC (“Douglas Properties” or “Douglas”) sued Guaranteed Builders & Developers, Inc. (“GBI”) in this court, seeking to resolve their dispute regarding title to a parcel of developable land in the town of Douglas. In July of the following year, on the eve of trial, they entered into a written agreement and stipulated to the dismissal of that litigation. In the current case, filed in 2013, Douglas Properties seeks enforcement of the 2009 agreement. After trial, I decide that Douglas Properties has carried its burden of proof, and is entitled to have the court enforce the 2009 written agreement.

Plaintiff Douglas Properties brought this action against GBI on July 24, 2013, seeking specific performance of the 2009 settlement agreement. Douglas Properties alleges that GBI has failed to comply with a binding and enforceable written settlement agreement between the two parties, dated July 28, 2009. The settlement agreement, like the earlier title action (brought by Douglas Properties on January 15, 2008), concerned a 12.61 acre parcel in Douglas, Massachusetts which lies across Shore Road from lots of land that front on Wallum Lake.

In the 2009 settlement document, GBI agreed to release any title interest asserted by GBI in this 12.61 acre locus, and Douglas Properties agreed to convey to GBI a portion of that locus large enough for the installation of a new septic system. The system was to serve two lots on Wallum Lake, across Shore Road from the disputed 12.61 acre parcel. One of the lakefront lots was owned by GBI, and the other by Joseph Bylinski. Mr. Bylinski long has been in litigation with GBI concerning its lakefront lot, which is located next to his.

II. PROCEDURAL HISTORY

Plaintiff’s July 24, 2013 complaint contains a count in which Douglas Properties seeks specific performance of the settlement agreement Douglas alleges it entered into with Guaranteed Builders, Inc. on July 28, 2009.

Defendant GBI filed its answer on September 9, 2013. At an initial case management conference on September 18, 2013, the parties undertook to move ahead to assess the ability of a portion of the disputed land to serve as the location of a septic system. On October 7, 2013, the parties filed with the court a joint status report indicating that GBI would conduct a percolation test to determine the adequacy of the locus for a septic system. This testing did not occur. After subsequent efforts to resolve the 2013 litigation proved unavailing, the court scheduled a pre-trial conference and an evidentiary hearing.

The evidentiary hearing took place on September 16, 2014. Five exhibits were admitted in evidence, some in multiple parts, and three witnesses testified. Frederick Pollard and William Cundiff testified on behalf of Douglas Properties, and Louis Tusino testified on behalf of GBI. A court reporter was present at all times to create a transcript of the testimony and proceedings. At the conclusion of the evidentiary hearing, the court instructed counsel to await the receipt of the trial transcript, to file and serve post-trial legal memoranda and proposed findings of fact and rulings of law, and that trial would resume for closing arguments. The transcripts were filed, counsel provided post-trial written submissions, and they subsequently argued the case to the court on the record. I now decide the case.

III. FINDINGS OF FACT

On all the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and argument of the parties, I find the following facts and rule as follows:

1. Douglas Properties is a Massachusetts limited liability company with a principal place of business at 306 Main Street, Douglas, Massachusetts.

2. Mr. Cliff Van Reed is a principal of Douglas Properties. Mr. Frederick Pollard is the manager. Both men at all relevant times were fully authorized to act for and bind Douglas Properties.

3. GBI is a Massachusetts business corporation with a principal place of business at 14 West Street, Douglas, Massachusetts.

4. Mr. Louis (“Louie”) Tusino is the principal of GBI; at all relevant times he was fully authorized to act for and bind GBI. Tracy Sharkey was an employee of GBI in 2009.

5. Douglas claims title to a parcel of land (“locus”) in the Town of Douglas, Massachusetts, located westerly of Wallum Lake Road and easterly of Shore Road. The parcel is referred to as “Assessors Map 299, Lot 8 . . . 12.61 Acres” on a plan entitled “Survey of Land Map, Assessor’s Map 299, Lot 8 Wallum Lake Road, Worcester County, Douglas, Massachusetts.” The plan is dated January 10, 2007, revised through August 10, 2007, and is recorded in the Worcester (South District) Registry of Deeds, Plan Book 860, as Plan 8.

6. GBI claims title to some or all of the same property.

7. On January 15, 2008, Douglas filed in this court a complaint concerning title to the property. Douglas sought to have this court adjudicate GBI’s claim of title to the locus and to decide that that claim was unfounded. GBI defended by asserting the validity of its claimed title. The court scheduled the 2008 action for trial on July 29, 2009.

8. On July 28, 2009, the day before the scheduled trial, the parties’ representatives met, and entered into a settlement agreement which was reduced to writing and signed by authorized representatives of both parties.

9. Representatives of both parties, along with their respective counsel, were present when the settlement agreement was negotiated and signed. Frederick Pollard, Cliff Van Reed, and attorney Henry Lane were there on behalf of Douglas. Louis Tusino, Tracy Sharkey, and attorney Gerald Shugrue took part on behalf of GBI.

10. The agreement the parties signed was handwritten by Henry Lane. It consists of three pages, containing seven paragraphs and one sketch plan of the property. This document is Trial Exhibit 1.

11. The settlement agreement (“Writing”) states in paragraphs one and two:

1. Release deed from G.B.I. to D.P. for all interest in 12 acre parcel (AP 299, Lot 8).

2. Deed from DP to GBI for land to construct a new septic system as shown on sketch plan dated July 28, 2009, provided that GBI shall have option of moving 20 ft wide access strip northerly to location shown as “Option B” or utilizing utility easement along westerly perimiter [sic] shown on plan. Provided also that parcel conveyed shall be large enough to allow construction of septic system used in common by proposed 3 bedroom dwelling at 103 Shore Road as well as 2 bedroom dwelling at 105 Shore Road.

12. The settlement negotiations lasted forty-five minutes to an hour.

13. Mr. Tusino testified that at one point during the negotiations, he left the room with Mr. Lane to discuss the settlement.

14. At trial, Mr. Tusino described this private conversation with Mr. Lane:

Q. Mr. Shugrue: And was the writing in the Settlement Agreement based on all of the things that had been said at that meeting that day?

A. Mr. Tusino: No. Me and Mr. Lane took a walk and I asked him, if he could get Mr. Bylinski to leave me alone, I would gladly put a sewer in, you know, for Mr. Bylinski and myself and that way he would – Mr. Lane would get an extra lot.

Q. And when you say “extra lot,” where would that extra lot be?

A. On Shore Road, but he would have to make a settlement with Mr. Nelson.

Q. So there were two people that anticipated that further action had to be taken?

A. Yes.

Q. Mr. Bylinski and Mr. Nelson?

A. Yes.

. . . . . .

Q. What was the intention – your intention of having [paragraph two] put in the agreement?

A. I already had a septic system to my house. I had no problem with my septic system. Mr. Bylinski was trying to get me to rip my house down. He had a septic system. His septic system is leaking in my backyard. Okay. Now, I figured if Mr. Lane could go to Mr. Bylinski, make a deal, I’d be glad to do anything Mr. Lane would want. I would do it today. I’d do it today if he could get Mr. Bylinski to go along with us.

Trial Transcript, at 71-75.

15. Mr. Lane did not testify at trial.

16. Mr. Pollard, who was present at the negotiations, did not offer testimony on whether such a conversation occurred.

17. Mr. Pollard testified that, at some point after the 2008 title action was settled on July 28, 2009, he called GBI’s engineer. Mr. Pollard inquired as to when GBI would begin testing the parcel that had been agreed was to be conveyed to GBI by Douglas Properties.

18. By letter dated November 7, 2012, Douglas Properties contacted GBI’s attorney, requesting that the settlement agreement be carried out. This letter is Trial Exhibit

4. It stated in relevant part:

It has been several years since we agreed to settle the referenced litigation. . . I know that some delay was occasioned by the litigation with Mike Nelson but I understand that has also been resolved . . . Under the circumstances, we would like to complete the land transfer and put this matter behind us. Enclosed is a sketch showing the parcel which we propose to transfer to Guaranteed Builders, Inc. in accordance with the settlement agreement. Please have your client review the sketch and advise us if any changes are necessary so that we can prepare a final plan for endorsement and recording.

Attached to this letter was a sketch plan (“Douglas proposed septic parcel plan”) dated November 6, 2012, prepared by Douglas Properties’ counsel, showing by metes and bounds with precise measurements a parcel to be created out of the locus, containing 27,333 square feet (0.63 acres), having a frontage of 20.15 feet along the easterly sideline of a strip of land with the label “n/f Nelson,” and extending to the east into the locus. This measured parcel (“Douglas proposed septic parcel”) was positioned within the larger locus, lies across Shore Road and just a bit to the north of the lot marked “103 Shore Road,” which is the parcel of land owned by GBI. The 103 Shore Road lot is the one which has been the subject of pitched litigation in which GBI and Joseph Bylinski (as well as officials of the Town of Douglas) long have been engaged. See, e.g., 12 MISC 467304 (RBF), 12 MISC 467780 (RBF), and 09 MISC 408938 (RBF).

The strip of land (“Nelson strip”) labeled on the Douglas proposed septic parcel plan as now or formerly of Nelson is shown to be 13.77 feet wide at its northern sideline, which lies well to the north of the Douglas proposed septic parcel. The Nelson strip as shown on this sketch plan extends well to the south of the Douglas proposed septic parcel. This strip is the subject of litigation in this court between GBI and Michael Nelson, see 09 MISC 391838 (AHS), 19 LCR 608 a (2011). That litigation went to judgment December 13, 2011, with this court determining that Nelson had superior title to the disputed Nelson strip, as against GBI. The Douglas proposed septic parcel is shown on the Douglas proposed septic parcel plan as coming up to the Nelson strip’s easterly sideline, but does not include any portion of the Nelson strip, which the plan shows as separating the Douglas proposed septic parcel from Shore Road.

19. GBI did not respond to the November 7th letter. By letter dated December 3, 2012, Douglas Properties renewed their request that the 2009 settlement be consummated.

20. By letter dated December 6, 2012, GBI refused to carry out the July 28, 2009 settlement agreement.

21. Seven months later, on July 24, 2013, Douglas Properties filed this action to enforce the settlement agreement.

22. On October 7, 2013, the parties filed a joint report with the court stating that GBI would conduct a percolation test to determine the adequacy of the “subject parcel” for septic use.

23. Since that report, GBI never conducted this or any other percolation test on the locus.

24. Mr. Tusino testified that after the parties filed the joint report he sent his engineer to conduct a percolation test, but that the piece of land “wouldn’t perc.” No report, expert opinion, or other corroborative evidence was presented to substantiate this claim. I do not credit this testimony.

25. In 2008, GBI submitted to the Douglas Board of Health a plan for a septic system on the locus. This is Trial Exhibit 2, marked as received by the Board on May 7, 2008. In the course of submitting this application, GBI conducted percolation testing, soil analysis, and test holes. No problems were found, and on June 2, 2008, the Board of Health approved GBI’s design for a septic system. Mr. William Cundiff, the Douglas Town Engineer, confirmed this in his testimony.

26. GBI owns a house directly across Shore Road from locus, at 103 Shore Road.

27. Joseph Bylinski also owns a house on land directly across the street from locus, at 105 Shore Road. Bylinski’s improved parcel is next door to GBI’s house lot.

28. In 2009, Mr. Bylinski appealed administratively the building permit that had allowed GBI to build the house at 103 Shore Road; Mr. Bylinski had requested that the building permit be revoked, and when the zoning enforcement officer declined to do that, Mr. Bylinski appealed to the Douglas Zoning Board of Appeals. The Board failed to act within the allotted time, so the appeal was granted constructively. In 2012, the Superior Court issued a judgment establishing judicially this constructively granted revocation of GBI’s building permit.

29. Since at least 2009, Mr. Bylinski has been in litigation with GBI in various efforts to cause to be removed the house on the GBI parcel next door to Bylinski. He has opposed, successfully so far, efforts by GBI to keep its house structure on the 103 Shore Road lot, challenging variance requests by GBI and pressing for enforcement of the zoning laws against GBI. I find that GBI was faced with unrelenting pressure from Mr. Bylinski in this regard, and sought to be able to settle with him. Because Mr. Tusino believed that the origin of Mr. Bylinski’s efforts against GBI was due to an underperforming septic system on the Bylinski lot, a situation for which Mr. Bylinski felt GBI and Mr. Tusino were responsible, Mr. Tusino was interested in finding a physical solution to the Bylinski septic system troubles. Mr. Tusino wanted to use a portion of the locus across Shore Road to install a working septic system that would serve both the Bylinski lot and the GBI dwelling at 103 Shore Road. This was Mr. Tusino’s main motivation is seeking provisions in the 2009 settlement with Douglas Properties that would carve out from the 12.61 acre locus a GBI parcel to be dedicated to septic system use.

30. In 2009, Mr. Michael Nelson also lived in the general vicinity of the locus and 105 Shore Road.

31. Mr. Nelson claimed title to a thin strip of land between locus and Shore Road. This “buffer zone” measures about 13.5 to 14 feet wide and 1,458 feet long. It is shown on a March 4, 1988 plan included in Trial Exhibit 3 entitled “Plan of Land Surveyed for Michael E. & Jean M. Nelson,” recorded in the Registry in April of 1988.

32. GBI claimed a title to a 310-foot section of this buffer zone which GBI asserted was superior to the Nelson title. Controlling this section of the Nelson strip would allow GBI to access locus directly from the troubled GBI property, located across Shore Road at 103 Shore Road. Without a right to traverse the strip, GBI could only access locus using a more circuitous route–that which was marked as “Option B” on the sketch plan that accompanied the July 28, 2009 agreement. While I find that this alternative access route was available and feasible, it obviously was longer, more difficult, and more expensive a way into the septic system area of the locus than a direct route across Shore Road and the Nelson strip.

33. In January of 2009, GBI filed a complaint (in case 09 MISC 391838 (AHS)) to quiet title, asserting (as against Mr. Nelson) GBI’s superior ownership of the 310- foot section of the buffer zone. On summary judgment, this court determined that Nelson’s title was superior to GBI’s; judgment to that effect entered on December 13, 2011 and became final in the absence of appeal. This left GBI with no legal right to pass (or lay pipes, including for sewage) across the Nelson strip to get into the locus.

34. Soon after the conclusion of GBI’s action against Mr. Nelson, he passed away.

35. In early September of 2014, Douglas Properties acquired title to the buffer zone from Mr. Nelson’s heirs.

IV. DISCUSSION

To prevail on a claim for breach of contract, the plaintiff must establish that there was a valid and enforceable contract between the parties. Lafayette Place Assoc. v. Boston Redevelopment Auth., 427 Mass. 509 , 517 (1998). A contract becomes enforceable when all conditions precedent have been fulfilled. Massachusetts Municipal Wholesale Elec. Co. v. Danvers, 411 Mass. 39 , 45 (1991). A condition precedent defines an event which must occur before a contract becomes effective. Id. If any condition precedent has not been fulfilled, the plaintiff’s action for breach of contract must fail. Id.

Generally, a condition precedent only may be created with the use of “emphatic words” in the written agreement. See Massassachusetts Municipal Wholesale Elec. Co., 411 Mass. at 46; Commerce Ins. Co. v. Koch, 25 Mass. App. Ct. 383 , 385 (1988). However, emphatic or precise words are not absolutely necessary to create such a condition. Massachusetts Municipal Wholesale Elec. Co., 411 Mass. at 46. A condition precedent may be implied if the intent of both parties to create one is clearly manifested in the contract as a whole. Id.; see King Features Syndicate, Inc. v. Cape Cod Broadcasting Co., 317 Mass. 652 , 654 (1945).

A condition precedent also may be created by a separate, oral agreement, if that agreement was intended by the parties to be incorporated into the final written device. See Antonellis v. Northgate Constr. Corp., 362 Mass. 847 , 849 (1973) (ruling construction contract not enforceable because condition precedent was established by oral agreement and that condition was not satisfied); Restatement 2d of Contracts, § 209. However, if the parties intended the written document to be a full and complete expression of their understanding, a separate, oral agreement will not be enforceable. Robert Industries, Inc. v. Spence, 362 Mass. 751 , 754 (1973). Whether the parties intended to incorporate a separate agreement is a question of fact to be determined by the trial judge. Antonellis, 362 Mass. at 849-850; Wang Labs., Inc. v. Docktor Pet Centers, Inc., 12 Mass. App. Ct. 213 , 219-220 (1981); Restatement 2d of Contracts, § 209.

In most cases, the writing itself will provide evidence whether the parties intended to incorporate a separate, oral agreement. See Robert Industries, Inc., 362 Mass. at 754. If a writing appears to be complete and specific in its terms, courts generally infer that it was the final expression of the parties’ understanding. See id. A “merger clause” also provides evidence that the parties did not intend to incorporate a separate agreement, though this language is not necessarily determinative. See Bank of America, N.A. v. Nancy Sales Co., 83 Mass. App. Ct. 1123 (2013).

When a writing does not provide clear evidence of the parties’ intent, the court may consider extrinsic evidence to determine whether a separate, oral agreement was incorporated into the written device. See Wang Labs., Inc., 12 Mass. App. Ct. At 219-220; Antonellis, 362 Mass. at 849-850; Restatement 2d of Contracts, § 214. The crucial inquiry is whether the parties reached a separate and enforceable oral agreement that is consistent with the written agreement. See Ryder v. Williams, 29 Mass. App. Ct. 146 , 150 (1990). There must be evidence that the collateral agreement came into being, that it was offered and accepted. See id.

I hold these helpful legal principles in mind as I consider whether, on the facts as I have found them, Douglas Properties has carried its burden of proving the existence, meaning, scope, and enforceability of the July 28, 2009 written settlement agreement. I do so in light of the arguments GBI has advanced in this litigation why Douglas Properties’ request for enforcement ought be denied.

GBI argues that the settlement agreement should not be enforced for four reasons. First, GBI alleges that an oral, collateral agreement was formed between GBI and its principal, Mr. Tusino, and Douglas Properties, represented by its attorney, Mr. Lane. GBI contends that at some point during the settlement negotiations, Mr. Lane promised to resolve another dispute between GBI and a separate client of Mr. Lane’s, Joseph Bylinski. GBI argues that, as a result of this conversation, the parties established a condition precedent required to be satisfied before the written and signed settlement agreement would become enforceable. GBI says that, because this condition was not (and still has not been) met, the court cannot enforce the July 28, 2009 settlement agreement.

GBI next argues that the settlement agreement should not be enforced because there was a second condition precedent implied in the writing that also has not been satisfied. Based on the language of paragraph two of the agreement, GBI takes the position that the settlement agreement implicitly required the favorable resolution of a lawsuit between GBI and another individual, Mr. Nelson. Because the Nelson litigation did not turn out in GBI’s favor, it contends that the settlement agreement may not be enforced.

Third, GBI argues that the settlement agreement should not be enforced because Douglas Properties did not move to enforce the settlement agreement within a reasonable amount of time. Finally, GBI claims that the settlement should not be enforced because the parcel proposed by Douglas Properties to be deeded by it to GBI is inadequate to function as the site of a septic system to serve the lots at 103 and 105 Shore Road.

A. Collateral Agreement - Bylinski Litigation

GBI defends by saying the settlement agreement should not be enforced because an oral, collateral agreement was formed between the parties when the principal and owner of GBI, Mr. Tusino, and the attorney for Douglas Properties, Mr. Lane, held a private conversation in the midst of the settlement negotiations on July 28, 2009. Mr. Tusino contends that Mr. Lane promised to resolve another lawsuit between GBI and Mr. Bylinski, as a necessary condition precedent to the effectiveness of the settlement agreement. I disagree. As trier of fact, I do not find that Douglas Properties made any such undertaking. The evidence I credit does not show that any such collateral agreement was formed; nor does it prove to me that the parties intended to incorporate any of the substance of those discussions into the final settlement agreement. See Antonellis, 362 Mass. at 849-850; Wang Labs., Inc., 12 Mass. App. Ct. at 219-220; Restatement 2d of Contracts, § 209.

The writing itself does not provide any indication, much less any clear evidence, that the parties intended to incorporate a separate, oral agreement into the final written settlement instrument. See Antonellis, 362 Mass. at 850. The agreement is handwritten and brief, but it is plain, well-thought out and organized, and it covers the subject matter more than adequately. Nothing about the July 28, 2009 document--or the setting in which it was executed--convinces me that it intentionally had topics and issues left to later negotiation, or deferred to an external unwritten agreement. See id.; Caputo v. Continental Constr. Corp. 340 Mass. 15 , 17-18 (1958).

The writing does not contain a merger clause. The writing does not explicitly say anything about the parties’ intent to fashion a fully integrated writing; they are not legally barred from putting in evidence demonstrating that a separate, oral agreement was intended to be incorporated into the final deal. See Antonellis, 362 Mass. at 849-850; Wang Labs., Inc., 12 Mass. App. Ct. At 219-220; Restatement 2d of Contracts, § 214.

Nevertheless, the evidence presented at trial indicates to me, as trier of fact, that Mr. Lane and Mr. Tusino did not intend to create an oral, enforceable agreement. See Antonellis, 362 Mass. at 849-850; Ryder, 29 Mass. App. Ct. at 150; Restatement 2d of Contracts, § 214. Mr. Tusino testified at length about his private conversation with Mr. Lane. Even if I credit this testimony, I find it unconvincing to prove to me that there was any further agreement struck between the parties. I certainly do not find that there was a commitment reached between these two men, on behalf of the two entities, that the settlement outlined in the written agreement was not to be effective unless the dispute between GBI and Mr. Bylinski first was resolved with finality. Mr. Tusino never adequately described what was said when he spoke privately with Mr. Lane. According to Mr. Tusino, “I asked [Mr. Lane], if he could get Mr. Bylinski to leave me alone, I would gladly put a sewer in, you know, for Mr. Bylinski and myself . . .” This language, which I do not necessarily accept as an entirely accurate account of what was said, does not clearly establish that settling the Bylinski litigation was a necessary condition to effectiveness of the July 28, 2009 settlement agreement. See Mass. Mun. Wholesale Elec. Co., 411 Mass. at 46 (“Emphatic words are generally considered necessary to create a condition precedent that will limit or forfeit rights under an agreement”). Because Mr. Tusino’s language was so indefinite, I cannot conclude that anything in the words used by Mr. Tusino was sufficiently clear to lead Mr. Lane to understand that it was GBI’s intention that, absent full and final termination of the Bylinski disputes with GBI, GBI was not to be bound by the settlement of the 2008 Land Court litigation with Douglas Properties. It is without doubt the case that Mr. Tusino was feeling pressed by GBI’s ongoing battle with Mr. Bylinski, and that Mr. Tusino saw, in the plan to carve out from the locus for GBI a septic system site, a promising way GBI might forge a settlement with Mr. Bylinski. But I find that nothing said by Mr. Tusino to Mr. Lane communicated any insistence on GBI’s part that the Bylinski situation be fully resolved before GBI would consummate a settlement of its title dispute with Douglas Properties.

The second flaw in GBI’s position is that Mr. Tusino never testified that Mr. Lane actually accepted this claimed oral modification of the settlement agreement. At trial, Mr. Tusino described only his own words and his subjective expectations of the deal. There is no evidence that Mr. Lane actually accepted the alleged condition precedent. I find it telling that Mr. Tusino never testified that Mr. Lane, in his discussions about the Bylinski situation, undertook to do or deliver anything, including on behalf of Douglas Properties. As trier of fact, I conclude that Mr. Lane made no such undertaking. It seems to me unlikely that Mr. Lane would promise to settle Mr. Bylinski’s litigation as a condition of settling the Douglas Properties litigation. To have done so would have put Mr. Lane in a difficult position ethically, because he would have risked putting the interests of Douglas Properties ahead of those of his other client, Mr. Bylinski. Mr. Lane would not have done so, certainly, without consulting with these parties, and there is nothing in the evidence I credit which leads me to find that that happened. What I conclude took place is that Mr. Lane heard out Mr. Tusino when he expressed his frustrations about the ongoing dispute with Mr. Bylinski, and heard Mr. Tusino voice his hope that, with a substitute septic site across Shore Road, GBI might have a way finally to reach a deal with Mr. Bylinski. I find that Mr. Lane heard these views, acknowledged them, but prudently made no responsive undertaking of his own, or on behalf of his client Douglas Properties.

For these reasons, I find that an oral, collateral agreement never was formed between Mr. Tusino and Mr. Lane on behalf of the entities they represented. Based on the facts I find in light of the evidence presented at trial, I conclude that the July 28, 2009, written settlement agreement was a complete expression of the parties’ intent, lacking any condition related to accomplishment of a settlement between GBI and Mr. Bylinski.

B. Collateral Agreement - Nelson Litigation

GBI next argues that the settlement agreement should not be enforced because there was another condition precedent implied in the writing that has not been satisfied. Based on the language of paragraph two, GBI urges the court to find that the settlement agreement implicitly required the favorable resolution of another lawsuit between GBI and another individual, Mr. Nelson. Mr. Nelson had claimed title to a narrow strip of land that stood between Shore Road and the locus, in a location across the road from the 103 Shore Road lot. Without rights to traverse this strip of land, GBI could not directly connect the 103 and 105 Shore Road properties with a new septic system on the land being carved out of the locus by Douglas Properties. Because GBI’s litigation with Nelson did not resolve in GBI’s favor, it contends that the settlement agreement may not be enforced. I do not agree.

The settlement agreement does not have an implicit condition precedent with respect to the Nelson litigation. See Mass. Municipal Wholesale Elec. Co., 411 Mass. at 46; King Features Syndicate, Inc., 317 Mass. at 654. A binding condition precedent may be inferred only if the intent of both parties to create such a condition is “clearly manifested in the contract as a whole...” To the contrary, the written agreement indicates that the parties did not intend to make the settlement conditional upon the Nelson litigation. They were well aware of the challenge posed by the Nelson strip, and the barrier it presented to bringing sewage straight across Shore Road to reach directly the contemplated new septic system location. The agreement did not in the least assume that the pipes could pass over the Nelson strip. Rather, the agreement outlines three different ways for GBI to access the locus: along a route labeled “20 foot access strip,” along a route labeled “Option B,” or by a route labeled “utility easement.” See Trial Exhibit 1. In the event that the Nelson litigation did not resolve favorably to GBI, these alternate options would allow Mr. Tusino and GBI to build and operate a septic system on the designated land across the road from the lots at 103 and 105 Shore Road. The inclusion of these alternatives in the agreement proves to me that the parties addressed the Nelson litigation, and intentionally did not make their settlement conditional upon GBI’s success in that litigation. Based on this language, I find that the parties did not intend to create, as a binding condition precedent, victory by GBI in the Nelson lawsuit. No such condition is implicit in the written settlement document. [Note 1]

C. Unreasonable Passage of Time

Third, GBI argues that the settlement agreement should not be enforced because Douglas Properties did not seek to enforce the agreement within a reasonable amount of time. GBI provides no authority for this assertion, and I determine that it lacks factual support. The settlement agreement was signed on July 28, 2009. Three and a half years later, on November 7, 2012, Douglas Properties sent a letter to GBI seeking to move forward to carry the agreement into effect. After GBI refused to do so, Douglas Properties filed this suit on July 24, 2013.

Considering all the circumstances, Douglas Properties sought to move ahead with the settlement agreement in a reasonable amount of time. In the years after the settlement was signed, GBI was involved in litigation with Mr. Nelson and Mr. Bylinski. And in this period of time, as Mr. Pollard testified, Douglas Properties was waiting, considerately, for GBI to conduct percolation testing of the locus. While I conclude, as discussed below, that there was in the settlement agreement no firm and binding condition that GBI have new positive percolation tests performed, Douglas Properties tried to be accommodating to GBI in this regard. It is less than seemly that GBI, which has adhered to the position that it needed to be able to retest the Douglas proposed septic parcel, now tries to avoid enforcement of the settlement by saying that Douglas Properties took too long to sue. GBI did nothing over the years following the execution of the agreement in July of 2009 to conduct further septic testing. GBI declined several invitations from Douglas that GBI carry out that testing. Eventually, frustrated by GBI’s inaction, Douglas designated a specific parcel, and invited GBI to offer its reaction. Still, GBI did nothing to advance the process. GBI has failed to show any harm it has suffered as a result of the time it took Douglas to bring this lawsuit. Considering that the statute of limitations on enforcement of the settlement agreement allows no less than six years (see G. L. c. 260, § 2), and that it was GBI which needed to move forward if it wanted to carry out optional additional perc testing, three and a half years was a reasonable amount of time for Douglas Properties to take to seek enforcement of the parties’ settlement agreement.

D. Adequacy of Locus for Septic Use

Finally, GBI contends that the settlement should not be enforced because the parcel to be deeded to GBI by Douglas Properties is inadequate to serve as the location for the contemplated new septic system. The evidence does not show that there was any such condition, and does not prove the inadequacy of the designated land to function as a septic system site.

The evidence presented at trial proves to me that the designated portion of the locus is suitable for a septic system capable of handling the sewage from both lots on the opposite side of Shore Road. In 2008, GBI submitted to the Douglas Board of Health for approval GBI’s own plans for a septic system on the locus. See Trial Exhibit 2. In making this application, GBI conducted supervised percolation testing, including expert soil analysis and the use of percolation test pits. No problems were found, and in the Spring of 2008, the Board of Health approved GBI’s design for a septic system. GBI never put in the system for which it had approval, at least in part because of the various lawsuits in which GBI was embroiled, including its dispute with Douglas Properties over the title to the locus. But this previous approval by the Board of Health is sufficient evidence for me as trier of fact that the site the parties set aside in the written settlement agreement is adequate for a new septic system, as they contemplated.

GBI has provided no credible evidence to the contrary. Mr. Tusino raised concern in his testimony about the presence of wetlands in the vicinity of the Douglas proposed septic parcel, but did not have a good explanation why (and introduced no credible evidence that) those claimed wetlands were close enough to the proposed septic system to prevent its use. While the septic plans the Board of Health approved do note that Conservation Commission review ought to take place, GBI has not proved that any wetlands issues, or other physical or legal constraints, would make impossible the installation of a septic system on the Douglas proposed septic parcel. GBI filed a joint status report indicating that it would conduct new percolation tests, but I find that these tests were not a binding condition of the settlement agreement, and in fact they never took place. Based on the evidence at trial which I find credible, including the Board of Health’s 2008 approval of a septic system on the locus, and the corroborative testimony of the municipal engineer, I conclude that the locus would have served adequately as the site of the contemplated septic system.

I further find that the parties agreement did not impose a condition that there be any more testing of the locus’ adequacy as a septic system location. The parties did not make their settlement contingent on further expert testing to demonstrate conclusively that the site lent itself to use for septic purposes. They arrived at their settlement accepting that a portion of the locus would serve that objective. While there was some room for adjustment of the exact location of the parcel to be carved out for septic system use, nothing in the credible evidence proves to me that the deal was at risk of being undone as a result of any later percolation testing or efforts to secure septic system permits. To the extent there was any risk left on that score, I find that the agreement placed that risk entirely on GBI. Douglas Properties did not agree that its acquisition of full title to the locus as a result of the settlement was in jeopardy, should GBI not be able to install a septic system on the contemplated portion of the locus.

V. CONCLUSION

Douglas Properties has carried its burden of proof and established that the July 28, 2009 settlement agreement constitutes a valid and enforceable contract. Despite GBI’s contentions, no condition--precedent, subsequent, or otherwise--exists either explicitly or implicitly, separate from the written agreement, that prevents the court from enforcing the agreement as executed. The court decides that Douglas Properties sought to enforce the settlement agreement in a reasonable amount of time, and that it is entitled to enforcement.

Judgment will enter enforcing the written agreement in accordance with its terms and the findings of the court in this Decision. The judgment will direct the parties to perform specifically the written agreement dated July 28, 2009.