Dalrymple v. Town of Winthrop

• Decision Date: 02 June 2020
• Docket Number: 17-P-794
• Citation: 149 N.E.3d 820,97 Mass.App.Ct. 547
• Parties: Nancy DALRYMPLE v. TOWN OF WINTHROP.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 547

149 N.E.3d 820

Nancy DALRYMPLE

v.TOWN OF WINTHROP.

17-P-794

Appeals Court of Massachusetts, Suffolk..

Argued December 13, 2019.

Decided June 2, 2020.

Benjamin Flam, Boston, for the plaintiff.

Michele E. Randazzo, Boston, for the defendant.

Present: Sullivan, Maldonado, & Wendlandt, JJ.

SULLIVAN, J.

The plaintiff, Nancy Dalrymple, appeals from a summary judgment entered in favor of the town of Winthrop (town), dismissing her complaint for breach of contract and unjust enrichment.¹ On appeal, she contends that the town committed a breach of a settlement in a Federal court action. The town maintains that Dalrymple repudiated the settlement agreement and pursued claims barred by its terms. We conclude that Dalrymple's delay in signing the settlement for a period of nearly one year after the agreement was first made, while litigating claims that were barred by the release, constituted a repudiation of the agreement as a matter of law. Accordingly we affirm the entry of judgment in favor of the town.

Background. The matter came before the Superior Court judge on cross motions for summary judgment. Because judgment was granted for the town, we review the evidence in the light most favorable to Dalrymple. See Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct. 824, 830, 44 N.E.3d 863 (2016).

Dalrymple was a police officer employed by the town.² On February 8, 2012, Dalrymple filed suit against the town in the United States District Court for the District of Massachusetts alleging that the town had violated State and Federal discrimination laws.³ At the same time, other discrimination and retaliation claims were pending before the Massachusetts Commission Against Discrimination (MCAD). In January, 2014, the MCAD issued a decision favorable to Dalrymple ordering that she be promoted to sergeant retroactive to March 1, 2002. Dalrymple v. Winthrop, 36 Mass. Discrimination L. Rep. 10 (2014).

On March 21, 2014, with trial in the Federal case set to begin ten days later, the parties agreed to settle. Dalrymple's attorney reported the case settled to the Federal court. The parties agree that the terms of the settlement required that the town (1) pay Dalrymple $110,000; (2) offer Dalrymple the ability to purchase two cemetery plots in town-owned cemeteries; (3) credit 821 hours of sick leave; and (4) agree that the settlement would not impact claims Dalrymple might have for injuries in the line of duty. In exchange, Dalrymple agreed to (1) dismiss her Federal court lawsuit and (2) execute a general release of claims. There is no contemporaneous documentation in the record regarding the effective date of the release. On March 24, 2014, the Federal court entered a sixty-day dismissal nisi order. Dalrymple was sworn in as sergeant on March 31, 2014, in accordance with the MCAD order.

Within one to two days of the promotion, the department assigned her to the night shift. On April 4, 2014, Dalrymple and her union filed a grievance alleging that the police chief had violated the collective bargaining agreement (CBA) by reassigning Dalrymple to the night shift.

Five days later, counsel for the town sent plaintiff's counsel a draft release that included all claims through the date of execution. Dalrymple's attorney sent the town's attorney a new draft settlement agreement and release on April 17, 2014, with a carve-out from the general release for "[t]he order that led to Ms. Dalrymple's grievance, filed on April 4, 2014, and any claims or causes of action arising out of the subject of the April 4, 2014 grievance."⁴ Although there were e-mails between attorneys for the town that suggest that they might have been amenable to the proposal, there is no written response to this proposal in the record. In the Superior Court, Dalrymple claimed the town had agreed to the carve-out. The town attorney's affidavit stated that the parties agreed upon a release of claims "up until the date plaintiff signed the release." The town left open at the summary judgment hearing whether there had been agreement on the carve-out; counsel stated at the hearing on summary judgment that "[w]e don't think that there was a carve out, but I can't prove it, and I don't think [Dalrymple's counsel] can prove it one way or the other, because there's just no records that show an acceptance of that term." On appeal, the defendants now agree for purposes of summary judgment that an agreement on the carve-out was reached, but the record does not reflect when, if at all, the parties agreed to the carve-out.⁵

At some point on or after April 25, 2014, Dalrymple's counsel informed the town's attorneys that Dalrymple wished to withdraw from the settlement and wanted "her day in court." Counsel for the town filed an affidavit stating that he understood "that Ms. Dalrymple was refusing to sign a release precisely because she no longer wanted to waive any claims she had against the [t]own and wanted to continue to pursue her [F]ederal court litigation, despite her prior agreement to the contrary." A second attorney for the town stated that it was her understanding that "the source of Ms. Dalrymple's unwillingness [to sign the release] was because she was upset about certain actions having occurred with respect to her employment as a police officer, in particular her shift assignment."⁶

On May 9, 2014, Dalrymple sought a thirty-day extension of the dismissal nisi order, which was granted to June 22, 2014. Attorneys for Dalrymple and for the town unsuccessfully attempted to broker a "global settlement" of all pending disputes. On June 12, 2014, Dalrymple and her union filed a third grievance alleging that the police chief had violated the CBA in June, 2014, by preventing her and other sergeants from bidding on a shift. On June 16, 2014, Dalrymple submitted a motion to set aside the dismissal nisi order and to restore the case to the Federal court calendar. In that motion, Dalrymple stated without further explanation that "[t]he parties' efforts to resolve the matter have proven unsuccessful." The town opposed the motion, arguing that good cause did not exist to return the case to trial because there had been a settlement agreement that Dalrymple had refused to sign.⁷ On June 20, 2014, the Federal court judge denied Dalrymple's motion to set aside the order of dismissal nisi, "[b]ecause the parties reported that the case was settled and this request fail[ed] to give any reasons why the settlement should be set aside."

On February 18, 2015, Dalrymple filed a new charge with the MCAD alleging, among other things, that the town's actions giving rise to her April 4, 2014, and June 12, 2014, grievances were discriminatory and retaliatory, and that the town had not given her the same swearing-in ceremony on March 31, 2014, as other sergeants had received.⁸

On or about May 7, 2015, counsel for the plaintiff notified the town that Dalrymple was prepared to execute the release of claims; counsel for the town replied that there was no longer a valid agreement. On May 15, 2015, plaintiff's counsel sent a demand letter to the town, setting out claims of unfair and deceptive practices arising from the town's failure to honor the settlement agreement. On June 8, 2015, the town replied, denying that it had committed a breach of the agreement and stating that it was Dalrymple who had committed a breach by failing to execute a release, by attempting to return the Federal case to trial, and by litigating claims against the town regarding events arising before the "effective date" of the settlement agreement.

On June 17, 2015, Dalrymple's counsel sent an executed agreement and release to the town, dated June 20, 2014, the date when the Federal district court denied her motion to set aside the order of dismissal nisi. The signed agreement and release included the carve-out added by Dalrymple's lawyers in their April 17, 2014 draft, but added the June 20, 2014 effective date. The letter accompanying the agreement and release encouraged the town to sign and implement the settlement.⁹ It did not.

Dalrymple then filed suit to enforce the settlement agreement. On cross motions for summary judgment, a judge of the Superior Court concluded that Dalrymple had repudiated the settlement agreement as a matter of law, and the judge entered judgment for the town. This appeal followed.

Discussion. "We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, ‘all material facts have been established and the moving party is entitled to judgment as a matter of law.’ " Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 215, 113 N.E.3d 355 (2018), quoting Casseus v. Eastern Bus Co., 478 Mass. 786, 792, 89 N.E.3d 1184 (2018). See Mass. R. Civ. P. 56, 365 Mass. 824 (1974). "The moving party bears the burden of affirmatively demonstrating the absence of a triable issue." Sea Breeze Estates, LLC, supra, quoting Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6, 887 N.E.2d 244 (2008). "If the moving party carries its burden, ‘the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact.’ " Sea Breeze Estates, LLC, supra, quoting French King Realty Inc. v. Interstate Fire & Cas. Co., 79 Mass. App. Ct. 653, 659-660, 948 N.E.2d 1244 (2011).

1. Repudiation, breach, and judicial estoppel. Both parties contend that the other repudiated a binding agreement. We first address whether Dalrymple repudiated the agreement when she sought to return the case to the trial list. We next consider whether Dalrymple engaged in a material breach of the agreement when she failed to sign it for a period of one year, and when she litigated claims arguably covered by the release. In the course of the latter discussion we also consider whether the town was judicially estopped from denying the existence of a binding agreement at the time that Dalrymple tendered the...