DONALD PUOPOLO, JR. v. VINCENT DENIETOLIS, Trustee.

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

22-P-654

DONALD PUOPOLO, JR. 1

vs.

VINCENT DENIETOLIS, trustee. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Plaintiff Donald Puopolo, Jr., on behalf of his father

Donald Puopolo, Sr. (Donald Sr.), trustee of the Donald Puopolo

Revocable Trust (Puopolo trust), appeals from a judgment of

dismissal entered after a Superior Court judge allowed a motion

to enforce a settlement agreement. The plaintiff brought this

action against his uncle, defendant Vincent Denietolis, trustee

of the Vincent E. Denietolis Trust (Denietolis trust),

concerning the management of rental properties that were jointly

owned by the trusts. On the day of the defendant's scheduled

deposition, the parties engaged in discussions culminating in a

settlement to resolve the dispute, and they dictated agreed-on

1 On behalf of Donald Puopolo, Sr., trustee of the Donald Puopolo
Revocable Trust. We use plaintiff throughout this opinion to
refer to Donald Puopolo, Jr.
2 Of the Vincent E. Denietolis Trust.
terms of the settlement, through counsel, on the record at the

deposition. The plaintiff later asserted that he was not bound

by those terms, and the defendant moved to enforce the

settlement agreement. Following a nonevidentiary hearing, the

judge allowed the motion and a judgment subsequently entered.

The plaintiff now argues that the dictated terms were not

sufficiently clear and complete to constitute a binding

agreement, the parties never reached a meeting of the minds on

all material terms of the agreement, and the judge erred in

failing to hold an evidentiary hearing to resolve factual

disputes surrounding the parties' intent. We affirm.

Background. The following facts drawn from the record and

the parties' briefs are undisputed. See Basis Tech. Corp. v.

Amazon.com, Inc., 71 Mass. App. Ct. 29, 30 (2008).

Donald Sr. and defendant Denietolis, who are brothers-in-

law, jointly owned three rental properties in Revere, each

consisting of two units, since the early 1970s. In 2012, they

transferred their interest in the properties to their respective

trusts such that the Puopolo trust and Denietolis trust each own

a one-half interest in the properties as tenants in common.

At the outset of their business relationship, Donald Sr.

and the defendant equally shared in the management and operation

of the properties, and the related profits and expenses

generated by the properties. After Donald Sr.'s health

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declined, the defendant assumed sole management of the

properties, and the plaintiff began managing his father's

financial affairs under power of attorney and as cotrustee of

the Puopolo trust.

In February 2020, the plaintiff initiated this action,

alleging that his uncle failed to equally share the revenues and

profits generated from the properties, took fees exclusively for

his own benefit, and withheld financial information from the

plaintiff. The defendant counterclaimed, alleging that Donald

Sr. ceased to equally share in the management and operation of

the properties around 1996 and charged below-market rent or no

rent whatsoever to two family members living on the properties.

The defendant also alleged that the plaintiff demanded a free

apartment or the cash equivalent and sought to take out a

mortgage on the properties for his personal benefit.

The plaintiff served a notice of deposition on the

defendant for July 15, 2021. Counsel and the parties appeared

in person with the plaintiff traveling from his home in Florida

to attend. At the suggestion of plaintiff's counsel, the

parties arrived early to discuss property management issues and

potential settlement. After a thirty to forty-minute

discussion, they went on the record with the court reporter. In

lieu of the proceeding with the deposition, plaintiff's counsel

stated:

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 "Going on the record to report a settlement in Suffolk
Superior Court civil action number 20-0547. The parties
had a settlement discussion and have come to the following
terms, which we'll go through on the record, and I can be
corrected by the end of that by counsel.

"It will be agreed as follows: The defendant in this
action will receive the sum of $600,000 in return for his
conveyance of all rights, title, and interest in [the three
rental properties, described by address].

"The $600,000 payment will be made as follows: $100,000
shall be remitted on or within 30 days as a cash down
payment. The $500,000 remaining balance will be evidenced
by a promissory note for a 25-year amortization, seven-year
term, five per annum interest. That note will be secured
by a first mortgage and assignment of leases and rents.
There will be deeds transferring all rights, title, and
interest into an LLC to be formed by the plaintiff, and we
will so designate in the transfer of documents. That LLC
will become the maker of the note."

Plaintiff's counsel then discussed the parties' agreed-on

disposition of this action as well as two other pending actions

as follows. The parties agreed to stipulate to the dismissal

with prejudice of a pending Land Court case "upon completion of

this settlement agreement," and that "the parties will sign

mutual releases of each other with an exclusion of [matters to

be] performed pursuant to this settlement agreement that we are

dictating." The parties also agreed that a separate action

pending between the parties in the Superior Court would survive

the mutual releases, and that a stipulation of dismissal with

prejudice would be filed in this action.

Finally, plaintiff's counsel discussed certain "practical

matters," including payments to be made by the defendant to the

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plaintiff on or within seven days, the division of the remaining

funds in the management and operating accounts, and the

collection of rents due on August 1st. Plaintiff's counsel also

stated his understanding that the current tenants had not paid

security deposits and discussed the return of the last month's

rent that was collected from some of the tenants. Plaintiff's

counsel explained that those rents would be returned at the time

of conveyance of the properties, "which is expected to be on or

within [thirty] days."

Plaintiff's counsel then inquired if he had missed

anything, and the following exchange occurred:

DEFENDANT'S COUNSEL: "No. Just two observations. One is on
the [other Superior Court case] we talked about. Plaintiff
in that case, who's the defendant in our current case,
reserves the right to bring the case in Florida as well, if
he so elects. With respect to the closing, each party will
pay the usual and customary fees associated with the
transfer. For example, the seller pays the stamp, the deed
excise tax in the Commonwealth. The buyer will pay
whichever LLC fees he needs to pay."

PLAINTIFF'S COUNSEL: "Each party will bear its [own] costs,
fees, and expenses."

DEFENDANT'S COUNSEL: "And attorneys' fees."

PLAINTIFF'S COUNSEL: "Including attorneys' fees. And each
party will agree in the stipulation filed with the Court to
waive any and all rights of appeal. Counsel, anything
else?"

DEFENDANT'S COUNSEL: "No. I think that's it. We said full
releases, except as to the existing issues in the other
case."

PLAINTIFF'S COUNSEL: "That's correct. Thank you."

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That same day, after the court reporter left, the parties

continued to discuss permitting and zoning issues, and the need

for maintenance and repairs on the properties.

Between August 11 and 31, 2021, defendant's counsel sent

four e-mail messages (one with a letter attached), and left two

voicemail messages for plaintiff's counsel, inquiring about the

status of the proposed settlement documents that plaintiff's

counsel was to draft. 3 On August 31, 2021, plaintiff's counsel

responded by letter, sent via e-mail message, advising of the

plaintiff's position that the dictated terms did not constitute

a full and final settlement. Plaintiff's counsel noted that no

formal written settlement agreement was drafted, the settlement

was not reported to the court, and no judgment of dismissal

entered. Plaintiff's counsel further stated:

"[T]he transcript does not address several of the issues
that go to the very essence of the case such as the ability
to make repairs and obtain permits for doing such repairs
or for operating the properties as two-family units. The
transcript is silent as to building code violations,
permitting, the illegal 'shared' utility service with a
neighboring property and other fundamental property
matters."

On October 25, 2021, the defendant filed a motion to

enforce settlement agreement based on the terms dictated at the

3 The first e-mail message also stated that defendant's counsel
was scheduled to leave for vacation the following day and noted
that "[t]he 30 days is fast approaching."

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deposition. In support thereof, the defendant attached an

affidavit from his counsel, a copy of the deposition transcript,

and the July and August 2021 written communications between

counsel. The plaintiff opposed the motion and provided his own

affidavit in response. The judge held a nonevidentiary hearing

on the motion. Both parties filed supplemental briefing after

the hearing as authorized by the judge. The defendant also

produced additional affidavits from his counsel and provided e-

mail messages exchanged with plaintiff's counsel and predecessor

counsel, pertaining to the occupancy permits to operate the

properties as two-family homes as well as the plaintiff's

inspection of the properties. In a written memorandum and

order, the judge allowed the defendant's motion, concluding that

the parties reached an agreement on all material terms and

expressed a present intent to be bound by the agreement. A

judgment dismissing the plaintiff's complaint and the

defendant's counterclaims with prejudice subsequently entered.

This appeal followed.

Discussion. Where, as here, the judge enforced a

settlement agreement without an evidentiary hearing, we treat

the defendant's motion as akin to one for summary judgment. See

Duff v. McKay, 89 Mass. App. Ct. 538, 542 (2016). Thus, we

conduct a de novo review to determine "whether, viewing the

evidence in the light most favorable to the nonmoving party, all

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material facts have been established and the moving party is

entitled to a judgment as a matter of law." Id. at 542-543,

quoting Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011).

"A settlement agreement is a contract and its

enforceability is determined by applying general contract law."

Sparrow v. Demonico, 461 Mass. 322, 327 (2012). "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." Duff, 89 Mass. App. Ct. at 543,

quoting Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct.

421, 428 (2010).

1. Settlement terms. The plaintiff argues that the terms

of the agreement were not sufficiently complete because the

parties failed to agree on or memorialize certain material terms

that were discussed immediately after they went off the record

with the court reporter. Specifically, the plaintiff asserts

that terms were missing on the issues of zoning and legal

permitting related to the properties' continued use as two-

family residences, the condition of and repairs required for the

properties, and the consequences if the plaintiff could not

obtain the $100,000 cash down payment.

"It is axiomatic that to create an enforceable contract,

there must be agreement between the parties on the material

terms of that contract." Situation Mgt. Sys., Inc. v. Malouf,

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Inc., 430 Mass. 875, 878 (2000). The question before us is

whether the absence of terms addressing the issues specified by

the plaintiff "meant that significant, material terms were still

to be negotiated" (quotation and citation omitted). Duff, 89

Mass. App. Ct. at 543. If the issues identified concern

"'subsidiary matter[s]' that did not alter the essential nature

of the bargain, then there was a contract that could be

enforced." Id. at 544, quoting McCarthy v. Tobin, 429 Mass. 84,

86 (1999).

Here, the parties described the properties to be

transferred and agreed on the price, the manner of payment, the

execution of mutual releases, the effect of settlement on this

and two other pending matters, the division of the balances in

the remaining business accounts, the disposition of certain

payments previously collected from the tenants, and the parties'

obligations related to closing costs and attorney's fees. The

terms also required each party promptly to act -- the defendant

agreed to make certain payments on or within seven days (which

the defendant did make), 4 and the plaintiff agreed to provide the

down payment within thirty days. The parties accounted for

collection of the August rents and noted that they expected the

properties to be conveyed within thirty days. These dictated

4 The plaintiff asserts that he never cashed the defendant's
checks.

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terms between the parties were sufficiently complete and

definite as a matter of law. See McCarthy, 429 Mass. at 86-87

(offer to purchase binding where it adequately described

property to be sold, deposit requirements, and price to be

paid).

The outstanding issues identified by the plaintiff -- the

status of zoning and permitting as well as the condition of and

necessary repairs to the properties -- are subsidiary matters

that were raised to or by the plaintiff prior to the time that

the parties signaled that an agreement had been reached. See

Goren v. Royal Invs. Inc., 25 Mass. App. Ct. 137, 141 (1987)

(where all significant economic matters resolved, subsidiary

matters included "state of the title, conformance with local

law, condition of the premises, extension provision to allow

seller time to remove title defects, buyer's right of election

to accept a deficient title"). See also Duff, 89 Mass. App. Ct.

at 544 (court may consider "status of things at the time the

parties signaled that an agreement had been reached"). The

plaintiff was notified that the building commissioner was

concerned that use of the properties as multifamily homes was

illegal as early as November 2019 and that the issue persisted

in January 2020. The plaintiff also was aware that the two-

family occupancy permits had not been issued as of November

2020, and that they could not be obtained without installing

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hardwired smoke and carbon monoxide detectors. With respect to

the condition of the properties, the plaintiff personally

inspected the properties with a property manager in November

2020. As a result of that inspection, the plaintiff relayed his

view to defendant's counsel that "[t]here has been total

neglected repairs and maintenance." Despite the plaintiff's

awareness of these matters, the terms dictated by his own

counsel made no reference to them and no reference to unresolved

or outstanding issues. 5 See Targus Group Int'l, Inc., 76 Mass.

App. Ct. at 430 (sufficiently complete agreement where document

made no reference to unresolved issues or unfinished business).

Therefore, we conclude, the terms and conditions as set forth in

the agreement were sufficiently complete and definite to form an

enforceable contract.

2. Intent to be bound. The plaintiff argues that the

parties did not have a present intent to be bound at the time

the terms were dictated because the parties used the future

tense in some instances, never exchanged drafts of a written

5 We are unpersuaded by the plaintiff's argument that the
agreement was incomplete in the absence of a term concerning the
consequences if the plaintiff defaulted on his obligations,
including if he was unable to obtain the $100,000 down payment.
As the motion judge properly noted, the remedy is clear and,
thus, the term is not material to the agreement. The defendant
would be free to file suit against the plaintiff for breach of
contract.

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agreement, and did not report the settlement to the court. We

disagree.

a. Words used and surrounding circumstances. "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 Tech. Corp., 71 Mass. App. Ct. at 39. "To ascertain

intent, a court considers the words used by the parties, the

agreement taken as a whole, and surrounding facts and

circumstances." 6 Id. at 41, quoting Massachusetts Mun. Wholesale

Elec. Co. v. Danvers, 411 Mass. 39, 45–46 (1991).

The transcribed terms here demonstrate that the parties had

the requisite intent to be bound. At the outset, plaintiff's

counsel prefaced his entire recitation of the terms with the

unequivocal and unqualified statement that the parties were

"[g]oing on the record to report a settlement in Suffolk

Superior Court civil action number 20-0547." Thereafter,

plaintiff's counsel did use the future tense in several

instances, including by stating "[i]t will be agreed as follows"

before describing the terms; however, he used "have agreed"

6 The plaintiff asserts that the judge's factual finding on the
issue of contemporaneous intent is reviewed for clear error.
See Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App. Ct. 204,
212 (2008); Basis Tech. Corp., 71 Mass. App. Ct. at 36. Whether
we review the issue of intent for clear error or de novo based
on the same record as the motion judge, we would reach the same
result.

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elsewhere and, notably, also referenced "this settlement

agreement that we are dictating." At the end of the discussion,

both counsel expressed satisfaction that the recitation of the

agreed-on terms was complete, without any qualification. See

Basis Tech. Corp., 71 Mass. App. Ct. at 40 (unqualified

acceptance of terms supports intent to be bound). As the

plaintiff notes, the use of the future tense in some instances

may signal that the parties were describing preliminary terms of

a future agreement, see Targus Group Int'l, Inc., 76 Mass. App.

Ct. at 433, but reading the terms as a whole, it is clear that

the use of the future tense here was made in reference to

actions that the parties were required to take under the terms

of the fully-formed settlement agreement.

The circumstances surrounding the dictation of the terms

further evidences the parties' intent to be bound. The parties

are familiar with each other and the properties that are the

subject of this litigation. They were engaged in three separate

lawsuits at the time, two of which pertained to the properties,

and they arrived early (at plaintiff's counsel suggestion) to

discuss settlement. 7 Even then, they only reached agreed-on

7 The pending Land Court case concerned a petition for partition
of the properties at issue that was filed by the defendant in
this case. Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28
(2011) (court may take judicial notice of docket entries and
papers filed in separate cases).

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settlement terms resolving two of those lawsuits after

discussion and in the presence of experienced counsel. The

parties chose to formalize the agreed-on terms by "[g]oing on

the record to report a settlement," in order to ensure that they

accurately were transcribed. The result was that the

defendant's deposition, an event that the plaintiff had traveled

from out of State to attend, was never held. These deliberate

and informed actions support the judge's conclusion that the

parties demonstrated a present intent to be bound. See Targus

Group Int'l, Inc., 76 Mass. App. Ct. at 433 (sophistication of

principals and counsel, and absence of references to unfinished

terms or future mediation sessions, supported intent to be

bound).

b. Further writings. The parties' understanding that the

settlement agreement ultimately would be reduced to writing is

not dispositive on the issue of intent. See Duff, 89 Mass. App.

Ct. at 546 (settlement agreement memorialized in e-mail messages

enforceable where formal documents never executed); Basis Tech.

Corp., 71 Mass. App. Ct. at 39-40 (same). The parties agreed to

all material terms and did not include an invalidating clause or

any language reserving agreement until execution of written

documents. See McCarthy, 429 Mass. at 88 n.3 ("If parties do

not intend to be bound by a preliminary agreement until the

execution of a more formal document, they should employ language

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such as that suggested by [this court in earlier decisions]");

Targus Group Int'l, Inc., 76 Mass. App. Ct. at 433 (parties

unprepared for firm commitment may include "'invalidating

clause' or reservation of agreement until execution of later

final documents of implementation"). As such, "it may be

inferred that the purpose of a final document which the parties

agree to execute is to serve as a polished memorandum of an

already binding contract" (citation omitted). McCarthy, supra

at 87. See Goren, 25 Mass. App. Ct. at 141-142. Contrast

Rosenfield v. United States Trust Co., 290 Mass. 210, 218 (1935)

(no intent to be bound where party refused to enter into short

form agreement and insisted on having lease drawn).

c. Failure to report settlement to court. The plaintiff

makes much of the fact that the parties did not report the

settlement to the court between the July 15, 2021 deposition and

the August 31, 2021 communication from plaintiff's counsel

contesting the existence of an agreement. A report of

settlement to the court is strong circumstantial evidence of the

parties' intent to be bound, see, e.g., Basis Tech. Corp., 71

Mass. App. Ct. at 44, but is not a prerequisite to creating an

enforceable settlement agreement. See Targus Group Int'l, Inc.,

76 Mass. App. Ct. 433 (settlement reached during prelitigation

mediation); Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App.

15
Ct. 204, 213 (2008) (settlement memorialized in e-mail messages

between counsel).

As a practical matter, defendant's counsel followed up

several times throughout August based on his understanding that

plaintiff's counsel would provide a draft of the written

agreement, and the defendant made the required payments under

the terms of the agreement. Within one month of receiving

notice that the plaintiff disputed the existence of an

agreement, the defendant served the plaintiff with a motion to

enforce the settlement agreement. While this course did not

have the effect of terminating a trial, it did have some effect

on litigation -- namely, it stalled discovery -- and the

defendant acted promptly to resolve the issue. Therefore, the

failure to report the settlement to the court between mid-July

and late August 2021 did not undercut the conclusion that the

parties had a present intent to be bound.

d. Request for evidentiary hearing. Finally, the

plaintiff argues that his affidavit raised genuine issues of

material fact surrounding the parties' intent such that an

evidentiary hearing was required. We disagree.

At most, the plaintiff's affidavit demonstrated that he had

an unexpressed, subjective intent not to be bound at the time

the terms were dictated and that the parties engaged in

discussions about the properties, including their future use as

16
two-family homes, after the court reporter left. Indeed, in his

affidavit, the plaintiff seemingly indicated he only

communicated his view that the agreement was not binding after

he left the deposition, further inspected the properties, and

spoke with the management company. 8

The plaintiff's evidence of his own subjective intent was

irrelevant; the pertinent issue was whether the parties

manifested the objective intent to be bound at the time of

contract formation, notwithstanding either party's subjective

intent. See Brewster Wallcovering Co. v. Blue Mountain

Wallcoverings, Inc., 68 Mass. App. Ct. 582, 596 n.35 (2007).

The parties' further discussions after the court reporter

left were irrelevant, as the parties' intent is assessed at the

moment of formation of the contested agreement (i.e., when the

terms were dictated to the court reporter). See Targus Group

Int'l, Inc., 76 Mass. App. Ct. at 432. The plaintiff, of

course, was free to "angl[e] and prob[e] for incremental

benefits or favors" beyond those agreed to by the parties at the

deposition, but the plaintiff did not condition his commitment

on the defendant's acceptance of any later proposals. Id. at

8 In relevant part, the plaintiff stated, "After trying to get a
complete picture of what was needed for these properties to be
operated properly, I informed my uncle and his attorney that the
alleged settlement was not complete because of these issues and
that there was a further need to address these points."

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434. Therefore, his requests for further settlement discussions

in August 2021 "operated independently of the core agreement and

left it intact." 9 Id.

Because the material facts were undisputed and the question

of intent turned on the language used by the parties in

dictating terms to the court reporter, the motion judge was not

required to hold an evidentiary hearing. See Community Bldrs.,

Inc. v. Indian Motocycle Assocs., 44 Mass. App. Ct. 537, 548

(1998).

Conclusion. The judge correctly concluded that the

settlement terms set forth on the record during the defendant's

deposition were sufficiently complete and definite, and that

both parties manifested an objective intent to be bound by those

terms. Accordingly, we affirm the judgment enforcing the

9 The plaintiff proposed new settlement terms, including on
price, in his August 31, 2021 letter.

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settlement agreement and dismissing the complaint and

counterclaims. 10

Judgment affirmed.

By the Court (Neyman,
Desmond & Smyth, JJ. 11),

Clerk

Entered: August 24, 2023.

10 The defendant's request for appellate attorney's fees and
costs is denied.
11 The panelists are listed in order of seniority.

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