MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, a nursing home that does business as Care One at Concord (Care One), brought this action against Mary D. Frasca to recover payment for services provided to her. While the action was pending, Mary died and Care One brought a motion to enforce a settlement agreement that it claimed to have reached with Marys conservator, her son Richard A. Frasca, in the days before Marys death.
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Care Ones motion was allowed, and a Superior Court judge concluded that Marys estate owed Care One $104,051.22 under the terms of the settlement agreement.
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Richard, who was appointed the personal representative of Marys estate and who was substituted as the defendant in this action, appeals and argues that there was no meeting of the minds on all material terms of the settlement agreement and that, assuming there was a meeting of the minds, the Superior Court judge incorrectly calculated the amount that Marys estate owed to Care One. We affirm.
Background. The following facts are undisputed. Mary was admitted as a patient to Care One on September 19, 2016, and the services provided to her were paid by Medicare through November 11, 2016. Thereafter, Care One began to bill Mary the private pay rate of $486 per day, which went unpaid, prompting Care One to file this action on June 16, 2017. After Care One filed this action, Richard, as Marys conservator, applied for MassHealth benefits. MassHealth initially denied the claim, but Richard pursued an appeal from that decision, retroactive to January 1, 2018.
In 2018, while the MassHealth appeal was pending, Richard sent four checks to Care One totaling $35,267.36. The checks were drawn from an account in the name of the estate of Mary D. Frasca. One check, in the amount of $8,000, stated that it was for services provided before January 1, 2018. Regarding the three other checks, the first was in the amount of $13,633.68 and stated that it was for services provided in January 2018 through June 2018, the second was in the amount of $11,361.40 and stated that it was for services provided in July 2018 through November 2018, and the third was in the amount of $2,272.28 and stated that it was for services provided in December 2018.
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On January 3, 2019, while the MassHealth appeal was still pending, Care One and Richard discussed a possible settlement of this action. The details of that discussion were later outlined in a series of e-mail messages between Care Ones attorney and Richards attorney. A January 3, 2019 e-mail message from Care Ones attorney included the following details:
“We have reached an agreement about some terms, some terms remain unresolved.
“We agreed to settle at a rate of $300 per day. The payment of $300 per day up to December 31, 2017, minus the amount already paid by [Mary] or by third parties, will be due on January 18, 2019[.]
“The amount from January 1, 2018 to December 31, 2018 at $300 per day minus amounts already paid by [Mary] will be placed in escrow pending the outcome of the Mass[H]ealth appeal․ If Mass[H]ealth is ultimately denied for 1/1/2018 onward then the amount in escrow will be transferred to Care One ․
“The $300 per day amount from 1/1/2019 to the date of Mary[’s] ․ discharge will be secured in some other way. We discussed the possibility of a surety bond or a mortgage․ In addition, if a bond company is willing to provide a bond for 1/1/2018 to the date of discharge, that option may be used in lieu of the escrow stated above. We reserve the right to review the terms of any bond arrangement and to determine whether it satisfies our need to secure the debt. We cannot agree to the use of a bond unless we have more information about the bond company and the terms of the bond arrangement.”
The e-mail exchange continued on January 4, 2019, when Richards attorney responded as follows:
“I am informed by a bonding company that they will issue a bond to cover non-performance of [Marys] obligations and they are sending me over an application.
“Just let me know the period you think needs to be covered.”
Care Ones attorney then inquired whether the bond could cover payment “until whenever [Mary] is discharged or [whether] it [has] to have a specific end date,” and Richards attorney answered that he would find out.
Mary died three days later, on January 7, 2019. On September 24, 2019, MassHealth issued a decision in Marys favor, retroactive to January 1, 2018. The favorable MassHealth decision narrowed the parties’ dispute to the time period from November 12, 2016, to December 31, 2017.
On or around October 7, 2019, Care One filed a motion arguing that the above e-mail exchange formed an enforceable settlement agreement and that Marys estate therefore owed Care One $300 per day, minus any amounts paid by Mary or third parties, for the time period from November 12, 2016, to December 31, 2017. Following an order enforcing the settlement agreement, a Superior Court judge concluded that Marys estate owed Care One $104,051.22 under the terms of the settlement agreement based on the following calculation: $124,500 for the 415 days from November 12, 2016, to December 31, 2017 (calculated at $300 per day), minus $12,448.78 paid by MassHealth for services provided during that time, minus the $8,000 payment that Richard sent to Care One for services provided during that time. The Superior Court judge did not deduct from the amount owed the three additional payments that Richard sent to Care One, as those payments covered services provided in 2018.
Richard argues that there was no meeting of the minds on all material terms because Care One insisted on some form of security, and because the precise form of that security was not finalized. Richard further argues that Marys estate should have received credit for the three additional payments he sent to Care One, even though those payments covered services provided in 2018. We conclude that the judge did not err in concluding that there was a meeting of the minds on all material terms and that the Superior Court judge correctly calculated the amount that Marys estate owed to Care One.
Discussion. 1. Existence of a settlement. First, we address whether the exchange of e-mail messages between the parties reflects an enforceable agreement, or whether the lack of specificity regarding the form of the security rendered the settlement agreement fatally indeterminate. “We adhere to the principle that [a]n agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto in the circumstances that justify and gave rise to it: where parties have merely reached the stage of imperfect negotiation prior to formalizing a contract, and have not yet reduced their agreement to terms” (quotation and citation omitted). Lafayette Place Assocs. v. Boston Redev. Auth., 427 Mass. 509, 517 (1998), cert. denied, 525 U.S. 1177 (1999). “When parties have progressed beyond that stage, however, a competing principle applies: a contract should be interpreted so as to make it a valid and enforceable undertaking rather than one of no force and effect” (quotation and citation omitted). Id. In such circumstances, “[a]s long as the contract, or reference to trade practice, provides some objective method for determining the missing term independent of either partys mere wish or desire, ․ the court will fill the gaps” (quotation and citation omitted). Meehan v. Shaughnessy, 404 Mass. 419, 445 n.22 (1989). “[W]e examine de novo the determination of the e-mail terms as a sufficiently clear and complete agreement.” Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008). Accord Duff v. McKay, 89 Mass. App. Ct. 538, 544 (2016).
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As stated in the opening line of Care Ones January 3, 2019 e-mail message, the parties had reached an agreement on some, but not all, terms. The remainder of the e-mail exchange shows that the only missing terms pertained to the precise form of the security. Richard appears to have preferred a surety bond, but Care One had questions about the viability of that option and “reserve[d] the right to review the terms of any bond arrangement and to determine whether it satisfie[d] [Care Ones] need to secure the debt.” Under this reservation of rights, Care One did not seek unfettered discretion to deny, arbitrarily, any bond arrangement; its concern, instead, was limited to its “need to secure the debt.” This language shows that Care One agreed to a commercially reasonable bond, which provided an objective method for a court to fill in the missing terms.
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We conclude that the exchange of e-mail messages reflects a meeting of the minds on all material terms. See Meehan, 404 Mass. at 445 n.22.
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2. Amount owed. Next, we address whether the Superior Court judge correctly calculated the amount that Marys estate owed to Care One under the terms of the settlement agreement. We review de novo the Superior Court judges decision not to deduct from the amount owed the three payments that Richard sent to Care One for services provided in 2018. See Basis Tech. Corp., 71 Mass. App. Ct. at 36 (whether agreements are ambiguous and interpretations of unambiguous agreements are questions of law that we review de novo).
As pertinent here, the January 3, 2019 e-mail message described two time periods: (1) the time period up to December 31, 2017 (2017 time period), and (2) the time period from January 1, 2018, to December 31, 2018 (2018 time period). For the 2017 time period, the parties agreed to settle at the rate of $300 per day, minus amounts already paid by Mary or third parties. For the 2018 time period, the parties again agreed to settle at the rate of $300 per day, minus amounts already paid by Mary, but that settlement amount was due only if MassHealth denied the pending appeal. Where the only time period at issue in this case is the 2017 time period, the question is whether the amount owed for the 2017 time period should be reduced by payments for services provided in 2018. No reasonable reading of the above provisions permits payments for services provided in 2018 to be credited toward the 2017 time period, as those payments were supposed to be credited toward the 2018 time period. See Surabian Realty Co. v. NGM Ins. Co., 462 Mass. 715, 718 (2012) (mere existence of dispute regarding interpretation does not create ambiguity).
We conclude that the Superior Court judge correctly calculated the amount that Marys estate owed to Care One under the terms of the settlement agreement.
Judgment affirmed.
FOOTNOTES
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. Because Mary and Richard share a last name, we refer to them by their first names.
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. Richard, as Marys conservator, controlled Marys finances and had the power to enter into a settlement agreement on her behalf before her death. Moreover, as acknowledged by Richards attorney at oral argument, assuming that Richard reached a settlement agreement with Care One before Marys death, the settlement agreement would be enforceable against Marys estate.
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. Richard and Care One have explained that even if MassHealth provided coverage, MassHealth would have required Mary to pay a “patient paid” or “patient liability” amount each month. There is no dispute that the three checks for services provided in 2018 were intended to cover patient paid or patient liability amounts Mary would have owed if the MassHealth appeal proved successful. It is less clear what the $8,000 check was for, although that is not germane to our discussion. What is germane to our discussion is that the $8,000 check specified that it was for services provided before January 1, 2018, while the other three checks specified that they were for services provided in 2018.
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. Care One argues that our review should be for clear error. Care One relies on language in Basis Tech. Corp., 71 Mass. App. Ct. at 36, that contemporaneous intent to be bound by e-mail terms is reviewed for clear error. The issue in this case, however, is whether the terms of the settlement agreement were sufficiently clear and complete. While Richard does argue that there was no contemporaneous intent to be bound, he does so on the basis that the terms of the settlement agreement were not sufficiently clear and complete. Accordingly, our review is de novo.
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. The subsequent exchange between the parties’ attorneys regarding the proposed surety bond -- in which Care Ones attorney did not raise broad objections to the use of a surety bond and instead raised a minor question regarding whether the surety bond would need to specify an end date -- further demonstrates that Care One agreed to accept a commercially reasonable surety bond as security.
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. We are unpersuaded by Richards alternative argument that the e-mail exchange between the parties’ attorneys did not satisfy the statute of frauds. E-mail messages may be writings that create binding agreements, see, e.g., Basis Tech. Corp., 71 Mass. App. Ct. at 45, and Massachusetts courts have long recognized the assumed authority of attorneys to enter into binding agreements on behalf of their clients. See, e.g., Medford v. Corbett, 302 Mass. 573, 574-575 (1939).