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COMMONWEALTH OF MASSACHUSETTS. APPEALS COURT. No. 2007-P-635. Middlesex County Division. Brendan Devlin, Individually and as Executor of the Last Will of Lillian J. Mitchell, v. Lawrence F. Croke, Jr., Brian Connell and ON APPEAL FROM A JUDGMENT OF THE PROBATE AND FAMILY COURT DEPARTMENT.
Brief for the Defendant-Appellee, __________________ |
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Richard J. Plouffe |
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TABLE OF CONTENTS Statement of the Issues Presented For Review........................................................................1 Statement of the Case and Facts.............................................................................................2 Argument 1. There Was Substantial, Credible Evidence 2. The Unimpaired Findings Of Fact By The 3. This Appeal By Devlin Is Frivolous...................................................................................38 Conclusion...........................................................................................................................40 Statutory and Rule Addendum.......................................................................................... Post ii . TABLE OF AUTHORITIES Cases Adoption of Astrid, 45 Mass. App. Ct. 538, 547(1998)......................................................18 Allen v. Batchelder, 17 Mass. App. Ct. 453, 458(1984).....................................................39 Alperin v. Eastern Smelting & Refining Corp., Avery v. Steele, 414 Mass. 450, 455(1993)........................................................................39 Basis Technology Corporation v. Amazon.Com, Inc., Beauregard v. Dailey, 294 Mass. 315, 324-325(1936).......................................................37 Blackwell v. E.M. Helides, Jr., Inc. , 368 Mass.225,226(1975)..........................................32 Bendetson v. Coolidge, 7 Mass. App. Ct. 798, 802-803(1979)...........................................33 Brash v. Brash, 406 Mass. 101, 105(1990).....................................................................19;20 Burt v. Gahan, 351 Mass. 340, 342(1966)..........................................................................35 Capital Bank & Trust Co. v. Richman, Carver v. Waldman, 21 Mass. App. Ct. 958, 959(1986)...........................................29;32;34 City of Medford, v. Corbett, 302 Mass. 573, 574-575(1939).............................................37 Cooley v. Bettigole, 1 Mass. App. Ct. 515, 520-521(1973)................................................33 Correia v. DeSimone, 34 Mass. App. Ct. 601,603(1993)..............................................34;38 Dalton v. Post Pub-lishing Company, 328 Mass. 595, 599(1952).....................................37 Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501(1997)..................................19 DeVaux v. American Home Assurance Co., 387 Mass. 814(1983)...................................35 Dominick v. Dominick, 18 Mass. App. Ct. 85, 88-89(1984)...................................34;35;38 iii. Emmons v. White, 58 Mass. App. Ct. 54, 68(2003)..........................................................36 Feldman v. Souza, 27 Mass. App. Ct. 1142, 1144(1989)..................................................36 Felton v. Felton, 383 Mass. 232, 239(1981).....................................................................18 Guardianship of Clyde, 44 Mass. App. Ct. 767, 774(1998)..............................................18 Handrahan v. Handrahan, 28 Mass. App. Ct. 167, 168(1989).........................................20 Hiller v. Submarine Signal Co., 325 Mass. 546, 549-550(1950)......................................33 Hubbard v. Peairs, 24 Mass. App. Ct. 372, 378(1987)...............................................34;38 Hudson v. Mass. Prop. Ins. Under. Assoc., 386 Mass. 450(1982)...................................37 Innis v. Innis, 35 Mass. App. Ct. 115, 117-118(1993).....................................................37 Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995)..............................................20 Jones v. Jones, 297 Mass. 198, 211-212(1937)...............................................................35 Katz v. Savitsky, 10 Mass. App. Ct. 792, 798(1980).......................................................39 Keegan v. Victor Bellotti, Inc . 22 Mass. App. Ct. 1111(1986)........................................39 Kendall v. Salvaggio, 413 Mass. 618, 620-621(1992).....................................................19 Kinsallis Finance Ltd. v. Fern, 421 Mass. 659(1996)......................................................37 Krokyn v. Krokyn, 378 Mass. 206,208(1979)..................................................................18 Lighter v. Lumbermans Mutual Casualty Insurance Company, Lord v. Lowell Institute for Savings, 304 Mass. 212, 214(1939).....................................36 Loring v. Brodie, 134 Mass. 453, 457(1883)...................................................................35 National Bank of Grafton v. Babbidge, 160 Mass. 563(1894)........................................35 Povey v. Colonial Beacon Oil Co., 294 Mass. 86,88-89(1934).......................................36 Ratshesky v. Piscopo, 239 Mass. 180, 186(1921)............................................................35 iv. Richmond v. Wohlberg, 385 Mass. 290, 295-296(1982) ................................................ 34 Robert Industries, Inc. v. Spence, 362 Mass. 751(1973)..................................................33 Robertson v. Gaston Snow & Ely Bartlett, Savage v. Blanchard, 148 Mass. 348, 349(1889) ............................................................37 Schuler v. Schuler, 382 Mass. 366, 368(1981).................................................................18 Serino v. Serino, 6 Mass. App. Ct. 926(1978)..................................................................19 Shain Investment Co., Inc. v. Cohen, 15 Mass. App. Ct. 4(1982)....................................33 Simon v. Weymouth Agricultural & Industrial Soc., Strand v. Hubbard, 27 Mass. App. Ct. 684, 687(1989)...............................................34;35 Theos & Sons, Inc. v. Mack Trucks, Inc., Thurlow v. Shaw's Supermarkets, Inc., VMS Realty Investments, Ltd. v. Keezer, Wang Laboratories, Inc. v. Business Incentives, Inc.,
Restatement (Second) of Contracts, § 29(1979)...............................................................35 Mass. R. Civ. P. 52(a)...........................................................................................18;20;22 G.L.c. 211A, Section 15..................................................................................................39 Mass. R. App. P. 25........................................................................................................39
1. Whether there was substantial, credible evidence in the record to support the crucial findings of fact made by Judge Kagan that the plaintiff-appellant Devlin was at all relevant times represented by Attorney Brian Connell; that Attorney Connell with Devlin present in the courtroom and after consulting with Devlin, reported to the Probate Judge that this case was “settled in prin-ciple” with just paperwork necessary to commemorate the agreement; that Devlin never objected to his attorney's report of a settlement to the court; and that his subse-quent attempt to renege on the settlement agreement was not credible and contrived in order to continue his challenge to the estate's settlement and to bolster his claim for more money from the estate? 2. Whether the unimpaired findings of fact made by the Probate Judge justify as a matter of law his ultimate conclusion that the parties through their respective counsel had reached a final and enforceable settlement of all claims concerning the estate and that this settlement agreement should be enforced? 3. Whether this appeal by Devlin is frivolous justifying an award to Croke of his appellate attorney's fees and costs? STATEMENT OF THE CASE AND FACTS . On April 12, 1995, the decedent Lillian J. Mitchell (“Mitchell”) executed a deed to her home at 29 Day Street in Somerville, Massachusetts, giving herself a life estate and conveying a remainder interest in the property to her nephew, the defendant-appellee Lawrence F. Croke, Jr.(“Croke”)(A.12). Seeking to undo this conveyance and reform the 1995 deed so that she could own more than just a life estate in her home, Mitchell in 2003 retained the defendant-appellee Attorney Brian Connell(“Connell” or “Attorney Connell”) to accomplish this result(A.12;82). In furtherance of his representation of Mitchell, Attorney Connell on March 24, 2003, filed an equity action in the Middlesex Division of the Probate and Family Court Department, Lillian Mitchell v. Lawrence F. Croke, Docket No. 03-E0039-GC, seeking reformation of Mitchell's 1995 deed(“the equity action”)(A.12;82-86). Through his undersigned attorney Richard J. Plouffe, Esq. (“Plouffe” or “Attorney Plouffe”), Croke appeared and moved to dismiss Mitchell's equity action(A.82). In the meantime, on April 9, 2003, Mitchell executed her last will, an instrument disposing of both her real and personal property and drafted by Attorney Connell which named the plaintiff-appellant Brendan Devlin (“Devlin”) as its executor and sole heir(A.12-13;94). Two days later, Mitchell died and on or about May 27, 2003, Attorney Connell on behalf of Devlin as named executor submitted the will for probate in the Middlesex Division of the Probate and Family Court Department . Estate of Lillian J. Mitchell, Docket No. 03P-2410-EP1(A.12-13;94-103)(“the will contest”). Shortly, thereafter, Croke appeared through Attorney Plouffe and filed his objec-tions to the allowance of the will for a variety of reasons(A.13;94-95). On July 18, 2003, the Probate and Family Court Department, Rockett, J., after hearing about a series of events which led up to Mitchell's alleged “execution” of her will on April 9, 2003, denied Devlin's motion to serve as temporary executor, instead appointing David Aptaker, Esq., to serve in that capacity(A.13;95). Devlin was present in court throughout this hearing and was represented by Attorney Connell only(A.13;94). From July in 2003 through December of 2003, Connell continued to work as Devlin's attorney on both the equity action and the will contest(A.13;82-83;94-96). As for the will contest, Attorney Connell served as Devlin's counsel after Mitchell's death as Devlin was the sole named beneficiary under the alleged will drafted for Mitchell by Attorney Connell and he was the only person other than Croke who had any legal interest in the allowance to probate of Mitchell's will(A.13;94-95). As for the equity action, Devlin moved to intervene in this proceeding after Mitchell's death and Attorney Connell continued to act as Devlin's attorney here since Devlin as executor and sole named beneficiary under Mitchell's will was the only other person besides Croke having an interest in seeking the reformation of Mitchell's 1995 deed(A.13;82-83;94-95). In December of 2003, Paul Redmond, Esq. entered his appearance for Devlin in these proceedings, giving Devlin the representation of two attorneys(A.13). Subsequently, both pending matters were set down for a pre-trial conference in July of 2004; but Attorney Redmond's con-tinuing illness caused the conference to be put over to October 29, 2004, where Attorney Dennis E. McMahon, (“McMahon” or “Attorney McMahon”) filed his appearance for Devlin, now giving Devlin the representation of both McMahon and Redmond(A.13;97). According to the docket entries in the will contest, Attorney Connell filed his withdrawal of appearance for Devlin on October 29, 2004 (A.97). Despite his withdrawal of appearance in the will contest, Attorney Connell continued to submit court filings on Devlin's behalf in these cases and at the scheduled status conference of August 15, 2005, before Kagan, J., who was now assigned to hear both of these pending matters, both Attorney Connell and Attorney McMahan appeared on behalf of Devlin with Devlin himself present in the courtroom(A.13;98). During this status conference, Attorneys Connell, McMahon and Plouffe all met with Judge Kagan in chambers to discuss a settlement offer suggested by Devlin's counsel (McMahon) whereby Croke would convey his remainder interest in the property back to Mitchell's estate and then receive a conveyance of the property out of the estate, saving thousands of dollars in taxes(A.14). At the conclusion of this con-ference, the parties through counsel signed a stipulation that settlement negotiations were ongoing and that another status conference would take place on October 24, 2005(A.14;17). Attorney McMahon signed the stipulation on behalf of Devlin(A.17). Later that same day, Attorney Plouffe e-mailed Attorney McMahon detailing their ongoing negotiations and asking McMahon to confirm same(A.14;18). Attorney McMahon confirmed the substance of Attorney Plouffe's e-mail the next day with his own return e-mail(A.14;19). At the status conference/hearing of October 24, 2005, before Kagan, J., both Attorney Connell and Attorney McMahan again appeared on behalf of Devlin; and again Devlin was present in the courtroom throughout the proceedings (A.14;105-111). During this hearing, Croke's counsel was presented with documentation which appeared to show a tax savings to Croke of $94,000.00 if he trans-ferred his title to the Day Street property to Mitchell's estate and then took title back from the estate(A.1-7;14). Since Croke had authorized Attorney Plouffe to settle these cases for any amount up to $50,000.00, Attorney Plouffe suggested to Attorneys Connell and McMahon that Croke share equally with Devlin in these tax savings with Devlin therefore receiving $47,000.00(A.14). On behalf of Devlin, Attorneys Connell and McMahon then discussed this proposal with their client Devlin and subsequently reported to Croke's attorney that the proposal was accepted by Devlin(A.14). Attorney Plouffe, as Croke's attorney, then reported the settlement to Judge Kagan in open court:
(A.107-108). After Judge Kagan noted for the record that the case would be regarded as settled and that the parties would have thirty (30) days to prepare the paperwork, scheduling another conference for November 28, 2005, in order to accomplish that event, the following colloquy took place:
(A.109)(emphasis supplied). Accordingly, both Attorney Connell and Attorney McMahon, after conferring with their client Devlin and obtaining his assent to the settlement, signified to the Probate Judge that these two pending matters had been settled with only commemorative paper-work to be prepared reflecting the settlement's terms (A.109-110). Later that same day, Croke's attorney e-mailed Attorney McMahon and confirmed the terms of the settle-ment(A.14;20). Succinctly, Croke will pay Devlin $47,000.00 and will sign all necessary papers to dismiss the will contest, leaving Devlin to be appointed executor under Mitchell's will and to inherit the entire estate pursuant to its terms(A.20). In return, Devlin will release any claims he may have had in the equity action and will accede to conveyance of the Day Street property into the estate and then back out to Croke, thus avoiding $94,000.00 in taxes(A.20). Attorney McMahon never contradicted this rendition of the terms of the settlement agreement. At the November 28, 2005, status conference, one scheduled to submit this settlement agreement in writing to Judge Kagan, however, both Attorneys Connell and McMahon appeared and told the Probate Judge that Devlin had decided not to accept the settlement agreement; and each attorney sought to withdraw from these matters(A. 115;117-118). In the course of these proceedings, Connell stated to the Probate Judge that he regarded both the will contest and the equity action as settled on October 24, 2005(A.117-118). As he told the court,
(A.117-118)(emphasis supplied). Devlin, now proceeding pro se , told the Probate Judge that there was no settlement on October 24, 2005, that he “agreed to nothing,” and that there's been no fair market appraisal done of Ms. Mitchell's property, only a tax assessment value, and that without such a fair market appraisal, he cannot know whether any settlement would be fair to him(A.118-122). He claimed to have been misled by his attorneys and that he never claimed to have authorized either Attorney Connell or Attorney McMahon to act in his behalf on October 24, 2005(A.121;132). Furthermore, in response to questioning by the Probate Judge, Devlin claimed that even though he was in the courtroom on October 24, 2005, when the settlement was announced in open court by all three attorneys , two of whom were representing him, he could not hear what was being said because he was sitting in the back of the courtroom(A.132-133). As far as Devlin's claim that he shouldn't be bound by a settlement agreement because he didn't know what was going on in the courtroom on October 24, 2005, Attorney Connell responded to Judge Kagan:
(A.123)(emphasis supplied). Subsequent status conferences consisted in part of the Probate Judge and the parties listening to the audio tapes of the status conferences of October 24, 2005, when the settlement agreement was announced and of Novem-ber 28, 2005, when Devlin sought to renege on the agree-ment(A.152-187). By replaying these tapes, Judge Kagan became persuaded that the dispositive issue on this record was whether on October 24, 2005, both parties through their respective attorneys had signified their acceptance of the settlement agreement and whether both parties should now be bound by that agreement(A.156;190-191). He ordered the parties to brief this precise issue before ruling on the parties' respective motions for summary judgment in each of the two pending matters (A.190-191). On August 14, 2006, the Probate Judge issued an amended sua sponte order(A.61-63;84;101). He first deter-mined as a matter of fact from this record that Devlin was represented by Attorney Connell beginning on May 27, 2003, when Attorney Connell on behalf of Devlin as the named executor submitted Mitchell's will for probate in the Middlesex Division of the Probate and Family Court Department(A.62). The lower court next determined that this representation of Devlin lasted until Attorney Connell (together with Attorney McMahon) finally withdrew their appearances for Devlin in these matters on December 6, 2005, well after the crucial status conference of October 25, 2005 which produced the settlement agreement (A.62). While the Probate Judge noted that Attorney Connell had filed an earlier withdrawal on October 29, 200 4 (the amended sua sponte order mistakenly records this first withdrawal by Attorney Connell to be October 29, 2005) (A.97), Judge Kagan rightly found that even after this earlier withdrawal in 2004, Attorney Connell continued to represent Devlin in both proceedings; and “at no time was the Court notified that Connell was not representing Devlin until the second withdrawal filed by Counsel” in December of 2005(A.62). Turning to the substance of the settlement agreement, the Probate Judge found that on October 24, 2005, “the Attorneys [for the parties] reported to the Court at that time that this case was ‘settled in principle,' and that they needed time to get the paperwork in order to commem-orate this settlement”(A.62)(emphasis supplied). While they were doing so, Judge Kagan found that Devlin remained in the back of the courtroom during this discus-sion(A.62). Even though ordered to produce an Affidavit of Agreement signed by all the parties at the next scheduled hearing in November of 2005, no Affidavit of Agreement was forthcoming and Devlin, now appearing pro se, claimed that no agreement was reached, that he was not actually represented by Connell at the prior hearing and therefore Connell's representations as to a purported settlement were not made on his behalf(A.62). Upon these findings, the Probate Judge noted that despite the apparent certainty with which the attorneys for the parties reported to him a settlement of these matters on October 24, 2005, he would be loathe to enforce such a settlement agreement absent a written description of its terms and the signature of all parties(A.62). Accordingly, the lower court ruled that
(A.63)(emphasis supplied). On August 17, 2006, Croke's counsel (Attorney Plouffe), the two former attorneys for Devlin (Attorneys Connell and McMahon), Devlin and his present attorney together with Connell's malpractice insurance attorney appeared before Judge Kagan(A.221-252). An Affidavit of Agreement was eventually accepted by the lower court (A.64-66;248-249). This Affidavit, signed by the parties through their counsel as of October 24, 2005, provided that on October 24, 2005, “all parties, with counsel,” were present in court for a status conference(A.64). Devlin had Attorney Connell with him on the equity matter and had Attorney McMahon with him on the will contest (A.64). Attorney Plouffe represented Croke on both of these matters(A.65). The Affidavit further averred that with the Probate Judge's encouragement, the parties and their attorneys entered into negotiations outside of the courtroom, negotiations which produced the settlement described above(A.65-66). It was further averred by Attorneys Plouffe and McMahon---and affirmed by Attorney Connell--- that “counsel for all the parties, with their clients, returned to the courtroom and, in open session, Attorney McMahon reported the matter settled and Attorney Plouffe delineated the terms of the settlement as agreed to” (A.66). Finally, the Affidavit of Agreement provided that “neither Devlin nor Croke objected to the report of a settlement nor the accuracy of the terms delineated on the record”(A.66). With this Affidavit of Agreement having been entered on the record, Judge Kagan indicated his intent to issue a judgment based thereon(A.248-249). On August 24, 2006, a final judgment so entered and Devlin's appeal therefrom followed(A.76;88). ARGUMENT.
In prosecuting this appeal, Devlin has reproduced in his record appendix almost none of the parties' plead-ings, all of the transcripts of the status conferences, some of the other documents evidencing the parties' settlement agreement together with Judge Kagan's amended sua sponte order containing his findings of fact addressing whether Devlin should be bound by his attorneys' indication to the court and other counsel that an enforceable settlement agreement had been reached. This documentary presentation, while incomplete, does provide this Court with a sufficient record upon which to review and decide every question of law, fact and discretion. Felton v. Felton, 383 Mass. 232, 239(1981) quoting Schuler v. Schuler, 382 Mass. 366, 368(1981) and Krokyn v. Krokyn, 378 Mass. 206,208(1979). The factual finding of Devlin's intent to be bound by the terms of the settlement agreement as reported to the Probate Judge by his attorneys below receives review under the “clearly erroneous” standard of Mass. R. Civ. P. 52(a), as amended, 423 Mass. 1402(1996). Basis Tech-nology Corporation v. Amazon.Com, Inc., 71 Mass. App. Ct. 29, 36(2008). Thurlow v. Shaw's Supermarkets, Inc., 49 Mass. App. Ct. 175, 177(2000). A finding of fact is “clearly erroneous” under Rule 52(a) when there is no evidence in the record to support it. Adoption of Astrid, 45 Mass. App. Ct. 538, 547(1998). Guardianship of Clyde, 44 Mass. App. Ct. 767, 774(1998). Even when there is some evidence to support a given finding, it still will be characterized as clearly erroneous if this Court on the entire evidence is “left with the definite and firm conviction that a mistake has been committed.” Demoulas v. Demoulas Super Mkts, Inc., 424 Mass. 501, 509(1997). Kendall v. Salvaggio, 413 Mass. 618, 620-621(1992) . Lighter v. Lumbermans Mutual Casualty Insurance Company, 43 Mass. App. Ct. 415, 418(1997). In deciding whether the Probate Judge's consid-eration of the evidence and events which transpired before him was justified, due regard will be given to his opportunity to weigh the truthfulness or authenticity of the responses which he heard from the parties themselves because by virtue of his firsthand view of these events and the parties, he is in the best position to judge the credibility of the parties' responses, to measure them against the record and the events which took place in his courtroom and to assign it appropriate weight in his findings and decision. Brash v. Brash,406 Mass. 101, 105(1990). Serino v. Serino, 6 Mass. App. Ct. 926(1978). See Capital Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 519(1985). To refuse to give the Probate Judge this deference is to deny his fundamental role as the ultimate factfinder for the events which occur in his courtroom, indeed, in his very presence. Thus where the Probate Judge's findings and con-clusions about crucial issues rest upon the believa-bility or authenticity of a witness or party or upon the lower court's own assessment of the events which have transpired before him as a Probate Judge, that assessment “is close to immune from reversal on appeal except on the most compelling of showings.” Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) See also Alperin v. Eastern Smelting & Refining Corp., 32 Mass. App. Ct. 539, 544 (1992). Given this standard of review, Croke submits that each one of Judge Kagan's crucial findings warranting the entry of a judgment enforcing the parties' settlement agreement is anchored not only by the uncontested facts below but also by the most plausible view of the evidence and events which took place below in front of the Probate Judge in his own courtroom. None of them is therefore clearly erroneous within the meaning of Rule 52(a). Brash v. Brash, 407 Mass. at 105-106.See Handrahan v. Handra-han, 28 Mass. App. Ct. 167, 168(1989). Moreover, Devlin's self-serving claim that Attorney Connell was not his attorney on October 24, 2005, was not authorized to reach the settlement he did, and could not bind him to this deal finds absolutely no support in the record. In fact, these claims are contradicted by the record and by the events which took place in the courtroom on October 24, 2005, one month before Devlin decided to renege on the deal because the money he received thereunder was not enough. This Court should therefore uphold the Probate Judge's findings of fact on every score and affirm the judgment below in all respects. The factual cornerstones most crucial to the entry of judgment below upholding the settlement agreement are that: (1) Attorney Connell represented Devlin at all relevant times, especially throughout the proceedings which took place on October 24, 2005; (2) that Attorney Connell as Devlin's attorney (along with Attorney McMahon) consulted with Devlin about the proposed settle-ment on that day, explained its terms to Devlin, and then reported to Judge Kagan in open court with Devlin present that these two matters were “settled in principle” with just paperwork necessary to commemorate the agreement;(3) that Devlin never objected to Connell's (or McMahon's) report of the settlement to the Probate Judge in open court; and (4)that Devlin's subsequent attempt to disavow his consent to this deal was not a genuine disagreement with its terms but rather a transparently contrived effort to resurrect the dispute in the hope of receiving a better financial deal. Each one of these crucial findings finds support in the record and is not clearly erroneous under Rule 52(a). A. Devlin was represented by Attorney Connell at all relevant times, especially on October 24, 2005. In his amended sua sponte order, Judge Kagan found that Devlin was represented by Attorney Connell beginning on May 27, 2003, when Connell on behalf of Devlin as the named executor submitted Mitchell's will for probate in the Middlesex Division of the Probate and Family Court Department(A.62). The lower court next found that this representation of Devlin lasted until Attorney Connell (together with Attorney McMahon) finally withdrew their appearances for Devlin in these matters on December 6, 2005, well after the crucial status conference of October 25, 2005 which produced the settlement agreement(A.62). While Attorney Connell had filed an earlier with-drawal on October 29, 200 4 (the amended sua sponte order mistakenly records this first withdrawal by Attorney Connell as having taken place on October 29, 200 5 )(A.97), Judge Kagan found that even after this earlier withdrawal in 2004, Attorney Connell continued to represent Devlin; and “at no time was the Court notified that Connell was not representing Devlin until the second withdrawal filed by Counsel” on December 6, 2005(A.62). All of these findings concerning the extent of Attorney Connell's representation of Devlin are buttres-sed by the record below. It unmistakably shows that on May 27, 2003, less than two months after Ms. Mitchell's death, Attorney Connell on behalf of Devlin as named executor submitted the will for probate in the Middlesex Division of the Probate and Family Court Department. Estate of Lillian J. Mitchell, Docket No. 03P-2410-EP1 (A.12-13;94-103). Attorney Connell continued to represent Devlin throughout this will contest and in the equity action as well, moving to intervene in that suit which sought the reformation of Mitchell's 1995 deed. As the record shows, Devlin was the sole named beneficiary under the alleged will drafted for Mitchell by Attorney Connell and he was the only person other than Croke who had any legal interest in the allowance to probate of Mitchell's will (A.13;94-95). As for the equity action, Devlin moved to intervene in this proceeding after Mitchell's death and Attorney Connell continued to act as Devlin's attorney here since Devlin as executor and sole named beneficiary under Mitchell's will was the only other person besides Croke having an interest in seeking the reformation of Mitchell's 1995 deed(A.13;82-83;94-95). As the docket entries show, while Attorney Connell apparently filed a withdrawal of appearance for Devlin in the will contest in October of 2004, Connell nonetheless continued throughout 2004 and 2005 to submit court filings in Devlin's behalf in both of the two pending cases and attended together with Attorney McMahon the crucial status conferences of August 15, 2005, and October 24, 2005, where the settlement agreement was formed(A.13;98). In fact, on August 15, 2005, Attorneys Connell, McMahon and Plouffe all met with Judge Kagan in chambers to discuss a settlement offer suggested by Devlin's attorneys and at its conclusion, the parties through counsel signed a stipulation that settlement negotiations were ongoing and that another status conference would take place on October 24, 2005(A.14;17). At the status conference/hearing of October 24, 2005, before Kagan, J., both Attorney Connell and Attorney McMahan again appeared on behalf of Devlin(A.14;105-111). It was not until December 6, 2005, in the wake of Devlin's repudiation of the settlement agreement, that Attorney Connell withdrew his appearance for Devlin (A.102-103). Finally, Attorney Connell himself offered the most relevant insight about the extent of his representation of Devlin---one that fully supports Judge Kagan's findings in this regard---when telling the Probate Judge in open court on November 28, 2005, that he considered the matter settled on October 24, 2005:
(A.117-118)(emphasis supplied). B. Attorney Connell consulted with Devlin about the proposed settlement on October 24, 2005, explained its terms to Devlin, and then reported to Judge Kagan in open court with Devlin present that these two matters were “settled in principle” with just paperwork necessary to commemorate the agreement. The Probate Judge found in his amended sua sponte order that on October 24, 2005, “the Attorneys [for the parties] reported to the Court at that time that this case was ‘settled in principle,' and that they needed time to get the paperwork in order to commemorate this settlement”(A.62)(emphasis supplied). This finding has uncontradicted support in the record. At the status conference of October 24, 2005, both Attorney Connell and Attorney McMahan appeared on behalf of Devlin; and Devlin was present in the courtroom throughout the proceedings (A.14;105-111). Moreover, he was also present with his attorneys outside the courtroom during the settlement negotiations; and all the terms of the settlement were exhaustively explained to him by his two attorneys. As Attorney Connell told Judge Kagan on November 28, 2005, Devlin was
(A.123)(emphasis supplied). The record supports Attorney Connell's version of the events. After discussing the settlement proposal with Devlin and then reporting to Croke's attorney (Plouffe) that Devlin had accepted it, Attorney Plouffe reported the settlement to the court(A.107-108). Judge Kagan noted for the record that the case was settled and that the parties would have thirty (30) days to prepare the paperwork(A. 109-110). Then the following colloquy took place:
(A.109)(emphasis supplied). Thus both Attorney Connell and Attorney McMahon, after conferring with their client Devlin and obtaining his assent to the settlement, signified to the Probate Judge in unmistakable terms that these two pending matters had been settled with only commemorative paper-work to be prepared(A.109-110). The lower court's find-ings of fact in this regard were therefore not clearly erroneous. C. Devlin never objected to Attorney Connell's (or Attorney McMahon's) report of the settlement to the Probate Judge in open court. During his attorneys' reporting of this matter as settled in open court on October 24, 2005, Devlin never made know his objections or disagreement with its terms. That is, having been an active participant in settlement negotiations on August 15, 2005, and then on October 24, 2005, having been exhaustively apprised of the settlement agreement's terms and having been represented by not one but two attorneys throughout the proceedings, Devlin asked the Probate Judge to believe his claim on November 28, 2005, that he never agreed to any settlement and that he could not hear what was taking place in court from where he was seated in the courtroom. First, Judge Kagan had the right to disbelieve Devlin's claims based upon his own observations of the parties, their counsel and the events which transpired before him as the settlement was announced. Despite having been an active participant in settlement negotia-tions throughout the case, Devlin's abrupt claim of ignorance about an agreement has the aroma of self-serving fabrication and the Probate Judge was right to disbelieve him in favor of what his own experience in this case told him. Carver v. Waldman, 21 Mass. App. Ct. 958, 959(1986). Moreover, Devlin said nothing in the courtroom when his two attorneys signified their acceptance of the agreement's terms; his attorneys did not disagree with Attorney Plouffe's e-mail which recited its provisions; and not until November 28, 2005, did Devlin make known that he was renouncing the agreement and withdrawing the authority of his attorneys who reached it on his behalf. Once again, Attorney Connell's statement to the Probate Judge are apt:
(A.123)(emphasis supplied). Indeed, even the Affidavit of Agreement signed by all counsel averred that “neither Devlin nor Croke objected to the report of a settlement nor the accuracy of the terms delineated on the record”(A.66). D. Devlin's attempt to disavow the settlement agreement is a contrived effort to resurrect the dispute in the hope of receiving a better financial deal. While the Probate Judge had the right to doubt the authenticity of Devlin's denial of any agreement, he also had the right question the motives Devlin may have had for undermining a settlement agreement to which he had already assented through counsel in open court. In this regard, the lower court's amended sua sponte order con-tains the implied finding that Devlin sabotaged this settlement because on reflection he was dissatisfied with its terms and because he believed that undermining its enforcement with his specious claims would put him in a better position to extract more money from Croke and/or Mitchell's estate. As Attorney Connell told the Probate Judge on November 28, 2005,
(A.123)(emphasis supplied). Judge Kagan had a similar right to surmise that Devlin's belated claims were confected in order to place him in a position for securing a better financial deal for himself and the lower court rightfully refused to believe his claims seeking to impugn a settlement agreement which his own lawyers, upon Devlin's express instructions, had achieved for him. Carver v. Waldman, supra. For these reasons, then, none of the findings by Judge Kagan about Devlin's attempt disavow this settlement agreement is clearly erroneous and together they support enforcement of its terms in all respects. 2. The Unimpaired Findings Of Fact By The Probate Judge Justify As A Matter of Law His Ultimate Conclusions That The Parties Through Their Respective Counsel Had Reached This Court is not obligated to reach the same conclusions of law as the Probate and Family Court Department and it may reverse the judgment below if any of the trial judge's rulings is tainted by an error of law. See Simon v. Weymouth Agricultural & Industrial Soc., 389 Mass. 146, 148-149(1983); Blackwell v. E.M. Helides, Jr., Inc., 368 Mass.225,226(1975). Croke submits, however, that all of the unimpaired findings here warrant the legal conclusion by Judge Kagan that this is an enforceable settlement agreement to which Devlin is bound by the authorized acts of his attorney despite his belated attempt to disagree with its terms. In the first place, if the terms of an agreement unambiguously set forth the parties' obligations, they are bound by those terms. Hiller v. Submarine Signal Co., 325 Mass. 546, 549-550(1950). Shain Investment Co., Inc. v. Cohen, 15 Mass. App. Ct. 4, 13(1982). Compare Cooley v. Bettigole, 1 Mass. App. Ct. 515, 520-521(1973). More-over, if it is the entire agreement of the parties and contains everything necessary to comprise a contract, it is presumed that the parties intended it to be a complete and final expression of the whole transaction. Shain, 15 Mass. App. Ct. at 13, citing Bendetson v. Coolidge, 7 Mass. App. Ct. 798, 802-803(1979). Thus enforcement will not be denied because of a claimed hardship to one of the parties. Hiller, 325 Mass. at 550, and cases cited. See also Robert Industries, Inc. v. Spence, 362 Mass. 751, 754-756(1973). Settlement agreements reached by litigants in the courthouse, while initially (and necessarily) oral in form when announced to the court, are treated no dif-ferently. Their terms, if free from ambiguity, if accept-ed by both parties and if intended by them to be the judgment of the court and at some later time reduced to written form, are entirely enforceable and bind the parties regardless of any subsequent claim by one of the parties of confusion, hardship or a failure to comply with the Statue of Frauds. Correia v. DeSimone, 34 Mass. App. Ct. 601,603(1993). Strand v. Hubbard, 27 Mass. App. Ct. 684, 687(1989). Hubbard v. Peairs, 24 Mass. App. Ct. 372, 378(1987). Carver v. Waldman, 21 Mass. App. Ct. at 959-960. Dominick v. Dominick, 18 Mass. App. Ct. 85, 88-89(1984). See Richmond v. Wohlberg, 385 Mass. 290, 295-296(1982). There is a well recognized distinction in the cases which acknowledge the validity of agreements which, as here, foresee a written expression of its terms but which are not contingent upon it. Hubbard v. Peairs, supra. Carver v. Waldman, supra. Dominick v. Dominick, supra. Restatement (Second) of Contracts, § 29(1979). Moreover, when a party to a settlement agreement seeks to renege on its terms, reopen the proceedings and renew the litiga-tion, “the parties must realize that the court cannot allow the settlement to be set aside for insubstantial reasons” and it therefore has the discretion to compel adherence to the terms representing the substantial parts of the agreement. Strand v. Hubbard, supra. Dominick v. Dominick, 18 Mass. App. Ct. at 90. Judge Kagan wisely exercised this discretion by denying Devlin's attempt to scuttle the settlement agree-ment. In the first place, Devlin retained and employed Attorney Connell for the specific purpose of pursuing a settlement of the will contest and the equity action; Connell was therefore Devlin's agent in this precise undertaking as a matter of law. Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 522(1989). DeVaux v. American Home Assurance Co., 387 Mass. 814, 818(1983). Burt v. Gahan , 351 Mass. 340, 342 (1966). Ratshesky v. Piscopo, 239 Mass. 180, 186 (1921). Loring v. Brodie, 134 Mass. 453, 457(1883). Connell's (and McMahon's) accept-ance of the settlement terms is therefore imputed to Devlin as his principal. Jones v. Jones , 297 Mass. 198, 211-212(1937). Ratshesky v. Piscopo, supra. National Bank of Grafton v. Babbidge, 160 Mass. 563, 565-566(1894). Because Devlin had actual knowledge of this settle-ment through Connell and because his assent to same can be actually imputed to him by the assent of Attorney Connell to its terms, Devlin cannot possibly claim a “hear no evil, see no evil” approach to the settlement; and the Probate Judge was right to see through his patently incredible claims of ignorance. Emmons v. White, 58 Mass. App. Ct. 54, 68(2003) citing Feldman v. Souza, 27 Mass. App. Ct. 1142, 1144(1989). Devlin was bound by the information which Attorney Connell possessed and by Connell's assent to the settlement's terms and his claims to the contrary are of no avail. Moreover, Croke and his attorney, like anyone else dealing with Devlin's attorney in these matters, had the right to rely upon the apparent scope of Attorney Connell's authority, i.e., to provide reliable informa-tion about a settlement and to bind his principal Devlin by his assent to any terms of settlement; indeed, any other conclusion runs counter not only to common sense but also to well recognized principles of agency. Lord v. Lowell Institute for Savings, 304 Mass. 212, 214(1939). Povey v. Colonial Beacon Oil Co., 294 Mass. 86,88-89(1934). Hudson v. Mass. Prop. Ins. Under. Assoc., 386 Mass. 450, 457(1982). Upon the record here, Devlin should be bound by Attorney Connell's assent to the settlement agreement—--stated in open court---an assent made with Devlin's express or apparent authority. Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 742-743(2000). Kinsallis Finance Ltd. v. Fern, 421 Mass. 659,664-665; 675(1996). Wang Laboratories, Inc. v. Business Incentives, Inc., 398 Mass. 854, 859(1986). Whether characterized as judicial estoppel or apparent authority, this principle which binds a litigant to a settlement agreement reached by his attorneys acting in his behalf has been recognized repeatedly by the decisional law of the Commonwealth. Dalton v. Post Pub-lishing Company, 328 Mass. 595, 599(1952). City of Medford, v. Corbett , 302 Mass. 573, 574-575(1939). Beauregard v. Dailey, 294 Mass. 315, 324-325(1936). Savage v. Blanchard, 148 Mass. 348, 349(1889)(Holmes, J.). Innis v. Innis, 35 Mass. App. Ct. 115, 117-118(1993)(“Counsel was not at liberty to let the judgment enter with [the client's] apparent approval and later invite a battle of affidavits about why the judgment should not have entered.”). Correia v. DeSimone, 34 Mass. App. Ct. at 603-604. Hubbard v. Peairs, 24 Mass. App. Ct. at 377-378. Dominick v. Dominick, 18 Mass. App. Ct. at 89 n.2. For all these reasons, Judge Kagan was correct as a matter of law to conclude on this record that this is an enforceable settlement agreement to which Devlin is bound by the authorized acts of his attorney despite his belated attempt to disagree with its terms 3. This Appeal By Devlin Is Frivolous. With the citation of decisional law in its appellate brief which is patently distinguishable from the facts adduced below and relying upon arguments in his Brief which are incoherent and ignore all of the law cited herein, Devlin has pursued this appeal against Croke on a record where each of Judge Kagan's critical findings of fact is supported by uncontradicted proof below. He has ignored the relevant evidence and the events below which buttress each of these findings in a transparent attempt to impose upon Croke the substantial expense of an appellate brief and associated legal fees. When an appeal such as this raises no authentic questions of law and ignores unrebutted proof supporting each of the trial judge's findings which warrant a judgment favorable to Croke, there can be no reasonable expectation of a reversal and it is frivolous. Avery v. Steele , 414 Mass. 450, 455(1993). VMS Realty Investments, Ltd. v. Keezer, 34 Mass. App. Ct. 119, 130(1993). Allen v. Batchelder, 17 Mass. App. Ct. 453, 458(1984). Because of this frivolous appeal by Devlin, this Court should exercise its discretion under Appeals Court Rule 1:28 and summarily affirm the judgment in Croke's favor rendered below. Pursuant to G.L.c. 211A, Section 15, and Mass. R. App. P. 25, this Court should also award Croke damages in the form of the attorney's fees he has incurred on this appeal together with double costs. Katz v. Savitsky, 10 Mass. App. Ct. 792, 798(1980). See Keegan v. Victor Bellotti, Inc. 22 Mass. App. Ct. 1111 (1986). Conclusion. For all of the reasons identified herein, Croke respectfully requests this Honorable Court to affirm summarily the judgment entered below. In addition, because this appeal by Devlin is frivolous, a further order should enter awarding him single or double costs including the attorney's fees which he has incurred on this appeal or such other relief as is fair and just in the circumstances.
Respectfully submitted,
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