EMILY SOTOMAYOR v. EIDOLON OPTICAL, LLC, & Another. ( 2023 )

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
21-P-925
EMILY SOTOMAYOR
vs.
EIDOLON OPTICAL, LLC, & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants timely appeal from an order enforcing a
settlement agreement and a final judgment ordering them to pay
$9,999 to the plaintiff. On appeal, the defendants claim that
the agreement never moved beyond the state of imperfect
negotiations. We affirm.
Background. Following an unhappy ending to the parties'
employment relationship, on January 17, 2020, Emily Sotomayor
filed a one-count complaint in the Superior Court alleging
sexual harassment in violation of G. L. c. 151B. Eidolon
Optical, LLC (Eidolon) and Victor Doherty (the defendants)
denied the allegations and raised counterclaims asserting that
Sotomayor, the former director of technology, misappropriated or
1 Victor Doherty.
destroyed the defendants' confidential and proprietary
information and used it to solicit business from the defendants'
customers.2 At the joint request of the parties, several
continuances of the hearing on Sotomayor's motion to dismiss in
part were granted while the parties engaged in settlement
negotiations.
Sotomayor's attorney made the initial offer to settle the
case for $10,000. On August 27, 2020, the defendants' attorney
represented that his clients were "willing to settle all claims"
for $9,999. He indicated that any settlement agreement must
contain "the standard provisions in settlement agreements in
employment cases," and was contingent upon an agreement by
Sotomayor "to return any Eidolon property she has in her
possession (including any and all photographs, data, or other
files that she created in the performance of her duties for
Eidolon or that otherwise belong to Eidolon)." The next day,
the defendants' attorney asked Sotomayor's attorney to confirm
they had "a deal before [he] put together a settlement
agreement." Sotomayor's attorney quickly responded that he had
heard back from Sotomayor and the parties had "an agreement in
principle."
2 The counterclaim alleged common law conversion and trespass to
chattels, and violations of the Computer Fraud and Abuse Act, 18
U.S.C. § 1030.
2
When Sotomayor's attorney subsequently inquired about the
"estimated time of arrival" of the settlement agreement, the
defendants' attorney indicated he was "just waiting for approval
from the client, and [he had] just followed up with [Doherty]"
and would "have it over to you as soon as possible."
Over the next two months, the parties negotiated in detail
over exactly what materials Sotomayor was required to locate and
return to the defendants. In connection with their October 28,
2020 joint motion to continue the hearing, the attorneys
informed the court that they "have reached a settlement in
principle and are hopeful to finalize a formal settlement
agreement within the next several weeks." Following Sotomayor's
agreement to one additional provision, her attorney requested,
on three occasions, an "execution" copy of the settlement
agreement. The defendants' attorney provided an agreement to
Sotomayor's attorney on November 9, 2020. On November 13, 2020,
Sotomayor signed and returned the "settlement agreement and
release of claims" (November 13 agreement).3 According to
Sotomayor's attorney, the defendants' attorney acknowledged
3 The November 13 agreement required Sotomayor, among other
things, to certify that the property listed in Exhibit A to the
agreement constitutes all of Eidolon's property in her
possession or control; to return all of it within five days of
signing the agreement; and to promise not to retain or
disseminate any copies of the property.
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receipt and indicated he would work on obtaining settlement
checks from the defendants.
On November 19, Sotomayor's attorney stated that his client
had drafted an e-mail about certain photos, but was awaiting the
countersigned agreement. The defendants' attorney responded,
"Checking in with Victor -- I'll get it to you ASAP." In
response to another e-mail on December 2 asking simply, "What's
going on[,]" the defendants' attorney indicated that Doherty had
some medical issues and the defendants' attorney was still
waiting on him. Asked for an update by Sotomayor's attorney on
January 12, 2021, the defendants' attorney stated he had none,
he understood Doherty was "still dealing with medical issues[,]"
and he planned to withdraw from the matter shortly.
On January 20, 2021, the defendants, for the first time,
took the position, through their successor counsel, that there
was no binding settlement agreement because Doherty had not
signed it.
Discussion. "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." Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct.
421, 428 (2010). "Where, as here, the negotiations were
memorialized in a trail of uncontested e-mails, whether the
parties agreed on all material terms is treated as a question of
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law that we review de novo." Duff v. McKay, 89 Mass. App. Ct.
538, 544 (2016). Based on the attorneys' e-mail exchanges and
the language of the November 13 agreement, we conclude that a
binding and enforceable contract formed on that date.
After months of negotiations (which included a request by
the defendants' attorney that Sotomayor's attorney confirm her
agreement to the terms before he began drafting an agreement),
and an explanation -- in response to an inquiry about when he
would send a draft agreement -- that he was waiting for his
client's approval, the defendants' attorney drafted the November
13 settlement agreement and sent it to Sotomayor's attorney.
The agreement was signed by Sotomayor, who immediately began to
perform her duties thereunder. The agreement not only contained
all of the material terms previously negotiated by the
attorneys, including the amount of the consideration, the method
of payment, and a provision governing the return of the property
held by Sotomayor, but also the standard terms one would expect
to see in a settlement agreement of this type that had been
referenced as a requirement by the defendants' attorney back in
August 2020. The agreement was written in the present tense
rather than the future, stating it "is being entered into
between [the parties] to resolve . . . all of [Sotomayor's]
claims and potential claims [and] . . . all of Defendants'
claims and potential claims." See Targus Group Int'l, Inc., 76
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Mass. App. Ct. at 433 (text was "telling"). The agreement
warned Sotomayor about its gravitas, and required Sotomayor to
acknowledge that she had been given ten days to "consider [its]
meaning and effect." The agreement further advised Sotomayor to
consult with an attorney, and instructed her to read the
agreement carefully, language inconsistent with an informal
agreement to agree. Compare McCarthy v. Tobin, 429 Mass. 84,
87-88 (1999) (inference that offer to purchase [OTP] was binding
bolstered by notice on the form stating OTP created binding
obligations). Moreover, the document, which contained a
standard integration clause, neither referenced unresolved
issues nor contained language that would have demonstrated the
defendants' purported lack of intention to be bound "until and
unless" Doherty signed a physical copy of the agreement. See
id. at 88 n.3. Doherty's later statement of his intention in
this regard -- first expressed in his affidavit supporting his
opposition to Sotomayor's February 2021 motion to enforce the
agreement -- did not create a genuine issue of material fact
regarding intent.
Nothing we have said in this decision affects the
defendants' right to bring a breach of contract action against
Sotomayor if she fails to fulfill her obligations under the
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settlement agreement. See Targus Group Int'l, Inc., 76 Mass.
App. Ct. at 434 n.12.
Order enforcing settlement
agreement affirmed.
Judgment affirmed.
By the Court (Green, C.J.,
Shin & Hershfang, JJ.4),
Clerk
Entered: April 28, 2023.
4 The panelists are listed in order of seniority.
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