JAMES C. MAZAREAS v. PETER MAZAREAS & Another.

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

23-P-866

JAMES C. MAZAREAS

vs.

PETER MAZAREAS1 & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case is part of the unfortunate and long-running

interfamily conflict about the estates of Fotios Mazareas and

Stavroula Mazareas. This dispute involves a two-family house at

37 Lake Avenue in Lynn that was held by Fotios.3

Background. Fotios died testate on November 23, 2010,

leaving, among other things, the two-family home in a

testamentary trust for the lifetime benefit of his wife

1 Individually, as personal representative of the estate of
Fotios Mazareas, and as trustee of the testamentary trust
created under the will of Fotios Mazareas dated November 19,
2010.

2 James Mazareas.

3 Because the parties share a last name, as do some of the
other individuals involved in this case, we will refer to them
by their first names.
Stavroula, with the remainder to his and Stavroula's six

grandchildren. The plaintiff, James C. Mazareas (Jamie), is one

of the grandchildren of Fotios and Stavroula. Stavroula died on

May 27, 2014. Fotios's and Stavroula's son Peter -- Jamie's

uncle -- is trustee of the testamentary trust, which granted

Peter the power to sell the subject property at public or

private sale without order or license from any court.

There was extensive litigation in the Essex County Probate

and Family Court following the deaths of Fotios and Stavroula.

The litigation was between Peter and his brother James Mazareas

(Jim), who is Jamie's father. Peter and Jim purported to settle

this litigation on May 2, 2015, by way of a handwritten

agreement. That agreement provided, "Jamie will have [the]

option to purchase 37 Lake Ave for the amount of $301,000. If

Jamie does not exercise this option by May 4, 2015, Jim shall

allow the sale to current purchaser, and will sign all releases

and withdraw all legal challenges."

On Monday, May 4, 2015, at 10:14 A.M., Jim sent an e-mail

message to Peter saying, "Peter[,] Jamie wants to purchase 37

Lake [A]ve. [W]ill get you a P & S[.] [J]im." Peter responded

shortly after, saying, "Good. Send it as soon as possible. We

need to execute it by Wednesday [A.M.] or we will lose the other

buyer." Jim replied, "I will get it done ASAP."

2
Later that afternoon, Jim e-mailed a proposed purchase and

sale agreement to Peter. It accurately identified the parties,

the property, and the purchase price, but contained numerous

provisions not set forth in the sparse option language of the

May 2, 2015, agreement, including providing, as credits to Jamie

against the purchase price, monies to be paid to Jim and Jamie.

The purchase and sale agreement was not signed by any of the

parties.

Two days later, after Jamie's attorney got in touch with

Peter's attorney, Peter wrote to Jim asking why Jamie had

engaged an attorney and asking for confirmation that Jamie

intended to purchase the subject property. Peter wrote that if

Jamie "wants to proceed with the purchase he needs to send a

statement today to that effect and speak for himself." Jim

responded asking Peter to have his counsel contact Jim's

counsel. In another e-mail message, Jim explained, "all

beneficiaries including [Jim's and Peter's sister] Helen need to

sign off. [Jim's attorney] will explain complexities and

potential liabilities for both of us." Peter asked if Jamie was

objecting; Jim replied, "no." No sale from Peter to Jamie took

place.

Subsequently, much litigation ensued. On May 13, 2015,

Peter filed a motion to dismiss the several cases in the Probate

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and Family Court litigation pursuant to the May 2, 2015,

agreement. On the same day, Jim filed an opposition to Peter's

motion to dismiss, challenging the enforceability of the May 2,

2015, agreement. On June 25, 2015, Peter filed a motion to

enforce the May 2, 2015, agreement that made no reference to the

option or whether it had been exercised. On December 29, 2015,

a judge of the Probate and Family Court issued an interlocutory

order allowing Peter's motion to enforce the agreement, again

with no mention of the option or whether it had been exercised.

Peter subsequently refused to sell the property to Jamie

pursuant to the option contained in the agreement -– Jim sought

unsuccessfully to have him held in contempt for failing to do so

-– and at a hearing on December 1, 2016, Peter explicitly took

the position in one of the cases that he was not obligated to

sell the property to Jamie because Jamie had not exercised his

option. Jamie was not a party to any of this litigation.4

4 In the litigation, the Probate and Family Court judge
encouraged Peter and Jim to come to a new agreement. They did
so, signing an agreement on December 1, 2016, stating in part
"37 Lake Ave will be sold to Jamie for $301,000" (it is not
clear from the record that this agreement was in final
settlement of any of the then-pending litigation).
Jamie did not argue in the trial court or before us that
the December 1, 2016, agreement superseded the May 2, 2015,
agreement or that he was entitled to purchase the property under
the December 1, 2016, agreement, as a third-party beneficiary or
otherwise. Indeed, in his verified complaint he stated, "In the
event and to the extent Peter Mazareas seeks to avoid his
obligation to the Plaintiff under the May 2, 2015 agreement by

4
On August 30, 2018, Jamie brought this suit against Peter

and Jim in the Superior Court as a third-party beneficiary of

the May 2, 2015, agreement. In count one Jamie claimed breach

of that agreement by failure to sell the real estate to him, and

sought specific performance. In count two, he claimed breach of

contract by failures to pay monies due to him under the

agreement.

Peter moved to dismiss and for summary judgment. Jamie

filed a cross motion for summary judgment. The Superior Court

judge allowed in part Jamie's motion, granting summary judgment

in his favor with respect to count two, the claim for monies

due, and entering judgment on that count in favor of Jamie in

the amount of $7,967.50. The judge granted Peter's summary

judgment motion in part, concluding there was no genuine issue

of material fact; that the May 2, 2015, agreement was an

enforceable option contract; and that Jamie failed to exercise

his option to purchase the property. She granted summary

judgment in Peter's favor regarding the sale of the property.

The judge entered an amended judgment that dismissed count one

and resolved the remaining claim by dismissing the complaint "as

reason of the December 1, 2016 agreement . . ., the Plaintiff
says that the Plaintiff's rights under the May 2, 2015 agreement
are unaffected by the December 1, 2016 agreement to which the
Plaintiff is not a party." No one has suggested that the
December 1, 2016, agreement renders this dispute moot.

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it pertains to Defendant James Mazareas." Jamie appealed with

respect to his claim regarding the sale of the property.

Discussion. We review the grant of summary judgment by the

Superior Court judge de novo. See Matthews v. Ocean Spray

Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997).

Jamie argues first that the motion judge erred in

concluding that Jamie failed to give notice of his exercise of

the option to purchase the property by means of Jim's e-mail

message to Peter. Jamie argues that Jim was acting as his agent

in e-mailing Peter in a timely manner to state that Jamie wished

to exercise the option. We may assume, without deciding, that

that argument is correct and that the option was in fact

successfully exercised by Jamie acting through his agent, Jim.

Two days later, however, Jim asserted in an e-mail message

to Peter that Jamie could not go forward with the purchase under

the May 2, 2015, agreement unless all beneficiaries –- meaning

Fotios's and Stavroula's other five grandchildren as well as

Helen –- signed off on the sale. If Jim was acting as Jamie's

agent on May 4, in the absence of any indication of revocation

of Jim's authority to do so, we conclude that he was also acting

as Jamie's agent on May 6.

Jamie's unwillingness to purchase the property under the

option unless an additional condition not included in the May 2,

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2015, agreement was met -- indeed one that would have required

nonparties to the agreement to enter into separate agreements

with him -- was either a revocation of the original exercise of

the option accompanied by a counteroffer to Peter, see Moss v.

Old Colony Trust Co, 246 Mass. 139, 148 (1923), or a refusal to

proceed with the purchase on the terms in the option. This

relieved Peter of any obligation to sell Jamie the property

under the option contained in the May 2, 2015, agreement.

Jamie argues in the alternative that Peter is judicially

estopped from asserting that he need not comply with the option

in the May 2, 2015, agreement. Judicial estoppel is "an

equitable doctrine that precludes a party from asserting a

position in one legal proceeding that is contrary to a position

it had previously asserted in another proceeding." Otis v.

Arbella Mut. Ins. Co., 443 Mass. 634, 639-640 (2005), quoting

Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184

(1998). It is appropriate only where (1) the position being

asserted is directly inconsistent with and mutually exclusive of

the position asserted in the prior proceeding, and (2) the party

succeeded in convincing the court to accept its prior position.

Otis, supra at 640-641. Even then, its application is

discretionary as, for example, a party's prior position may have

been due to inadvertence or mistake. Id. at 642. We therefore

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review the question of the refusal to apply judicial estoppel

for abuse of discretion. Spinosa v. Tufts, 98 Mass. App. Ct. 1,

6 (2020).

Jamie contends that Peter's position at summary judgment is

directly contrary to the position that he took previously in the

Probate and Family Court litigation, which was that Jamie had

exercised the option. Jamie also argues that the court accepted

Peter's prior position. In arguing that Peter is judicially

estopped from asserting the option was not exercised, Jamie

points to a memorandum of law filed by Peter on June 25, 2015;

an affidavit signed by Peter on June 24, 2015; and an argument

made by Peter's counsel on July 7, 2015, all of which were part

of the Probate and Family Court litigation between Peter and

Jim.

To begin with, this all took place in a case between Peter

and Jim, not Jamie. In any event, the memorandum of law was in

support of Peter's motion to enforce the May 2, 2015, agreement

against Jim, which Jim was then attempting to void, and the

ruling on that motion did not resolve whether Jamie had in fact

exercised the option in the agreement. The memorandum of law

said, in support of the argument that Jim had acknowledged the

validity of the May 2, 2015, agreement, "On Monday, May 4, 2015

-- two days after the Settlement was signed -- [Jim] sent an

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email to Peter stating that [Jim's] son Jamie would be

exercising his option under the Settlement to purchase 37 Lake

Avenue." It did not seek to enforce the option or unequivocally

contend that Jamie had already exercised the option.

Peter's affidavit in support of the memorandum stated,

"Because of the provision in the Settlement Agreement that
the real estate was to be sold to my nephew Jamie Mazareas
([Jim's] son), and the status of the litigation, I informed
the selling broker . . . to inform the buyer [who had
signed a purchase and sale agreement for the property] that
we would not accept his offer and for [the broker] to
return the buyer's deposit."

The affidavit also said, "On the Monday after [Jim] and I signed

the Settlement, May 4, 2015, [Jim] sent me an email stating that

his son Jamie would be exercising the option to purchase 37 Lake

Avenue as provided in the Settlement." Even if the motion had

been successful solely in reliance on these statements -–

something we need not address -– these statements do not assert

that it was Peter's position that the option had been

effectively exercised.

Finally, in the argument by Peter's counsel to which Jamie

points, Peter's counsel stated, "Jamie Mazareas said, after the

settlement, 'I want to exercise my option.'" This also was not

an unequivocal statement that the option had been properly

exercised.

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Indeed, Peter ultimately took the position in the Probate

and Family Court litigation that he was not under an obligation

to sell the property to Jamie because Jamie had not exercised

the option. Both before and after Peter explicitly stated that

position, Jim repeatedly requested that the Probate and Family

Court judge hold Peter in contempt for failing to honor Jamie's

purported exercise of the option, and the Probate and Family

Court judge repeatedly refused to do so. In light of this, we

cannot properly conclude that it was an abuse of discretion for

the Superior Court judge to decline to hold that Peter was

judicially estopped from taking the position here that the

option had not been exercised.

Conclusion. The amended judgment is affirmed. The

appellee's request for costs and counsel fees pursuant to Mass.

R. A. P. 25, as appearing in 481 Mass. 1654 (2019), is denied.

So ordered.

By the Court (Vuono, Rubin &
Walsh, JJ.5),

Clerk

Entered: November 20, 2024.

5 The panelists are listed in order of seniority.

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