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22-P-851 Appeals Court

K & K DEVELOPMENT, INC. vs. ZACHARY ANDREWS, individually and 

as trustee.1

No. 22-P-851.

Essex. May 10, 2023. - September 15, 2023.

Present: Meade, Blake, & Brennan, JJ.

Rules of the Superior Court. Practice, Civil, Findings by 

judge. Agency, Scope of authority or employment. Real 

Property, Sale, Purchase and sale agreement, Specific 

performance. Contract, Sale of real estate, What 

constitutes, Offer and acceptance, Performance and breach, 

Specific performance, Damages. Frauds, Statute of. 

Electronic Mail. Damages, Loss of profits.

Civil action commenced in the Superior Court Department on 

January 19, 2018. 

The case was heard by James F. Lang, J. 

Gordon N. Schultz for the defendant. 

Paul Alan Rufo (Vincent N. DePalo also present) for the 

plaintiff.

BLAKE, J. The plaintiff, K & K Development, Inc. (K&K or 

buyer), brought this action against the defendant Zachary 

1 Of ZEA 1 Realty Trust. 
2

Andrews, individually and as trustee of ZEA 1 Realty Trust (ZEA1

or seller), alleging that ZEA1 committed a breach of its

agreement to sell two mixed-use rental properties to K&K. After 

a bench trial in the Superior Court, conducted pursuant to 

Rule 20 of the Rules of the Superior Court (2018) (rule 20), the 

judge answered special questions on the elements of each claim. 

He concluded that a valid agreement existed between the parties, 

ZEA1 committed a breach of that agreement, and, as a result, K&K 

was entitled to specific performance and monetary damages based 

on lost profits.

On appeal, ZEA1 challenges the sufficiency of the evidence 

demonstrating the existence of a binding contract and a breach 

thereof, K&K's entitlement to both specific performance and 

damages, and the denial of ZEA1's motion in limine to exclude 

evidence of a deposit made by K&K to bind the purported 

agreement. We affirm in all respects except for one minor 

adjustment to the damages calculation. 

Background. "We recite the facts that the judge could have 

found, . . . reserving some for later discussion." Spinosa v. 

Tufts, 98 Mass. App. Ct. 1, 3 (2020). Because the judge's 

answers to the special questions turn in large part on the 

communications between the parties, our review requires us to 

set forth the facts in some detail, all of which are drawn from 

the trial record. See Wendy's Old Fashioned Hamburgers of N.Y., 
3

Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 375 & n.3 

(2009).

1. The properties. Brothers Zachary and Eugene Andrews

own and manage several commercial and residential properties.2 

In 1999, they purchased two adjoining buildings located on Union

and Chestnut Streets in Lynn as investment properties 

(properties). In 2001, they transferred the titles to the 

properties to ZEA1, a realty trust of which Zachary is the 

trustee and Zachary and Eugene each are fifty percent 

beneficiaries.

The properties consist of eight commercial units on the 

ground level and twelve residential units on the second and 

third floors. In 2015, a fire resulted in significant damage to

one of the buildings causing it to close (damaged building). 

Shortly thereafter, the brothers listed the properties for sale,

with Eugene acting as the licensed broker for the listing. 

Because they did not receive any offers within their desired 

price range, the brothers decided to demolish the interior and 

renovate the damaged building before relisting the properties 

for sale.

2. K&K's offers to purchase. K&K is a corporation that 

acquires and develops real estate. Boris Kuritnik, K&K's 

2 Because the Andrews brothers share a last name, we refer 

to them hereafter by their first names.
4

treasurer, secretary, and director, works with Hakim Sadler, a 

licensed real estate salesperson, to identify real estate 

opportunities, and to acquire and sell properties.

Sadler came across the original listing for the properties 

and brought it to Kuritnik's attention in 2016. From March 2017 

to November 2017, K&K made five unsuccessful offers to purchase 

the properties.3 During that time, Sadler and Eugene

communicated about the properties, including the status of the 

certificates of occupancy for the damaged building in order for 

the premises to be leased.

After the fifth unsuccessful offer, Kuritnik and Sadler 

completed a walk-through of the properties.4 On November 2, 

2017, Kuritnik, on behalf of K&K, executed a new offer to 

purchase (November 2 offer). The November 2 offer included a 

purchase price of $2.683 million with a $5,000 deposit to bind 

the offer and an additional $95,000 deposit to be paid on the 

execution of the purchase and sale agreement (P&S).5 Like the 

earlier offers, the November 2 offer was submitted on a 

3 The unsuccessful offers included three in March 2017, when 

the damaged building still required major work, and two in 

October and November 2017 as that work neared completion.

4 Kuritnik and Sadler previously conducted a walk-through of 

the properties in March 2017.

5 The deposit was nonrefundable on K&K's receipt of clear 

title. 
5

preprinted form issued by the Greater Boston Real Estate Board

(GBREB) that included a "[t]ime is of the essence" provision,

stated that the offer was "a legal document that creates binding 

obligations," and advised the parties to consult an attorney if 

they needed further advice. K&K also incorporated in the offer 

and affixed to it a contingency page signed by Kuritnik with six 

additional terms, including, as relevant here, that the "Buyer

[is] granted the right to market and negotiate all new tenancy 

upon acceptance" (original rental provision). Kuritnik included 

the original rental provision based on his understanding at the 

time that the building unaffected by the fire was occupied, and 

the damaged (now renovated) building would be vacant when sold.

ZEA1 asked some follow-up questions about the November 2 

offer but did not accept it by the deadline of November 29, 

2017. However, Sadler and Eugene continued to communicate 

throughout November about the potential sale. At Eugene's 

request, Eugene and Sadler spoke by telephone on November 29

about the framework for the sale and ZEA1's concerns about the

November 2 offer. Later that day, Eugene returned the November 

2 offer to Sadler with revisions (November 29 counteroffer). On 

the offer form, Zachary changed the expiration date of the offer

to noon on November 29, 2017, the date to execute the P&S to 

December 15, 2017, and the date to close to February 18, 2018. 

On the addendum, Zachary crossed out the original rental 
6

provision, and he added in a new provision that the "Seller will 

rent and collect income from units until closing." Zachary 

initialed his changes to the dates and signed both the form and 

the addendum. Eugene signed in the section indicating receipt 

of a $5,000 deposit from K&K to be held in escrow by Sadler's 

employer.

On November 30, 2017, at 12:30 P.M. (after the November 29

counteroffer had expired by its terms), Eugene sent a text 

message to Sadler as follows: "Hakim did you get our 

counteroffer yesterday? If so could I get some feed back [sic]. 

We have good applicants ready to move in asap. I liked [sic] to 

[k]now what to tell them." Sadler and Eugene then spoke by 

telephone about rental pricing for potential tenants. Around 

3 P.M. that same day, Sadler followed up via e-mail message in 

response to the November 29 counteroffer, explaining about the 

leases:

"The buyer is fine with the pricing but wants to be clear 

on the provision below:

"'Buyer shall have the final approval of all tenant(s) and 

lease(s) prior to leasing the units for both commercial and 

residential [(new rental provision)]. Buyer[']s sole and 

exclusive approval shall control. All approvals shall be 

in writing in advance.

"All store fronts to be finished with uniform materials 

including but not limited to windows, type of glass, doors 

etc. [(storefront provision)].'
7

"Based on the above verbiage, we might as well start 

forwarding the buyer the rental applications you have 

collected from potential tenants thus far. Thoughts?" 

By that time, Kuritnik understood that ZEA1 intended to lease 

the damaged building and collect rent until the closing. Based 

on that understanding, Kuritnik explained to Sadler that he

sought the right to approve the leases (rather than the ability 

to market and execute leases as requested in the original rental 

provision) to "limit [K&K's] exposure to bad tenants on the 

residential side and control the lease price and terms . . . on 

the commercial."

Approximately one hour later, Eugene responded via e-mail 

message, "Hakim one of the doors is not bronze metal. But it 

will be painted to match. Also tomorrow is the first so can 

they review applications tomorrow?" About twenty minutes later, 

Sadler sent to Eugene the November 29 counteroffer with the 

following revisions. Kuritnik changed the date on the top of 

the offer form from November 2 to November 30, and initialed 

next to Zachary's prior changes to the dates for acceptance of 

the offer, execution of the P&S, and closing. A new addendum 

was affixed to the offer that included the five terms left 

unaltered by the parties in the prior contingency page as well 

as the new rental provision and the storefront provision 

referenced in Sadler's e-mail message to Eugene. That version 
8

of the addendum was signed by Kuritnik, but it was never signed 

by Zachary or Eugene (November 30 addendum).6 

On December 4, 2017, Sadler informed Eugene that the $5,000 

deposit was in escrow and arranged to pick up the rental 

applications. On the same day, Sadler met with Eugene to obtain

the rental applications. After Kuritnik reviewed the 

applications, Sadler informed Eugene that K&K agreed to all five 

tenants and requested "discretion moving forward regarding any 

new, potential leases." ZEA1 then executed at least two 

residential leases on December 4.

On December 4 and 7, 2017, Sadler also requested contact 

information for ZEA1's attorney from Eugene in order to move 

forward with the P&S. On December 7, Eugene responded that no 

P&S would be forthcoming as "[t]he counteroffer with changed 

terms was not acceptable to seller and was not executed by the 

seller."

3. Present action. In January 2018, K&K brought this 

action for declaratory relief, specific performance, and breach 

of contract. Following a four-day bench trial conducted 

pursuant to rule 20, the judge explained that he intended to 

answer the questions on the special verdict form in the parties' 

6 Although the addendum sent by K&K is dated November 29, 

2017, we refer to it as the November 30 addendum because it 

appears that the addendum was sent from K&K to ZEA1 on November 

30. 
9

presence and "to provide a very truncated explanation for my 

reasoning."7 

At a subsequent hearing, the judge announced his verdict. 

In response to the special questions, he found that there was a 

valid contract for the sale of the properties, K&K substantially 

performed its obligation under that contract, ZEA1 committed a 

breach of the contract, and K&K was entitled to specific 

performance and $483,705 in damages for lost profits. The judge 

also made "remarks" about the evidence, but warned that they 

were not intended as factual findings and "hardly compare[d]" to 

the type of detailed findings he would make in the absence of a 

rule 20 waiver.8 Judgment subsequently entered in favor of K&K

7 Prior to trial, K&K filed a motion for sanctions based on 

ZEA1's purported noncompliance with discovery. The judge 

permitted testimony regarding ZEA1's compliance with discovery, 

noting that the issue might bear on credibility. He also noted 

that he might "draw one or more of the requested adverse 

inferences if they [were] warranted based on [his] consideration 

of such evidence." Ultimately the judge did not draw any 

negative inferences. 

8 The judge commented that K&K's addition of the new rental 

provision in the November 30 addendum was material, but was the 

product of a discussion between Sadler and Eugene that the 

provision was acceptable to ZEA1. The judge further noted that 

even if Sadler and Eugene did not discuss the new rental 

provision, the parties both operated as if that provision was 

accepted and in full force based on the evidence that Eugene 

provided Sadler with five rental applications on December 4, 

Sadler communicated K&K's approval of those tenants, and ZEA1 

immediately drafted leases for execution on two applications 

after receiving that approval. With respect to any dispute over 

the scope of the storefront provision, the judge explained that 

the provision became a "nonissue" after Sadler and Eugene agreed 
10

ordering specific performance and awarding damages for lost 

profits. This appeal followed.

Discussion. 1. Enforceable agreement. ZEA1 challenges 

the sufficiency of the evidence to demonstrate the existence of 

a binding agreement, and that if such agreement exists, 

enforcement is barred by the Statute of Frauds.

a. Standard of review. K&K contends that ZEA1's challenge 

to the sufficiency of the evidence is waived because ZEA1 did 

not renew its motion for a directed verdict at the close of its 

case. This argument is misplaced as it is premised on a jury 

trial; in that circumstance, a motion for a directed verdict at 

the close of all evidence generally is required to preserve a 

sufficiency challenge. See Beverly v. Bass River Golf Mgt., 

Inc., 92 Mass. App. Ct. 595, 600 (2018). That requirement does 

not extend to the circumstances here, as "[m]otions for directed 

verdicts are proper only when a jury have been empanelled." 

Kendall v. Selvaggio, 413 Mass. 619, 620 n.3 (1992). To the 

extent that K&K suggests that ZEA1 was required to move for 

directed or required findings, see M.G. v. G.A., 94 Mass. App 

Ct. 139, 139 n.1 (2018), or for involuntary dismissal, see 

Kendall, supra, to preserve its sufficiency challenge, we 

disagree given the procedure agreed on by the parties.

that ZEA1 would paint the one unmatching door in the damaged 

building, the cost of which was negligible. 
11

Pursuant to rule 20(2)(h), the parties waived their right 

to a jury trial and to "detailed written findings of fact and 

rulings of law." The parties agreed to waive any arguments that 

required or depended on detailed factual findings. Accordingly, 

appellate review is conducted according to the same standard as 

that applied to a judgment entered following a jury verdict. 

See Rule 20(8)(b) of the Rules of the Superior Court (2018). 

Cf. Spinosa, 98 Mass. App. Ct. at 10 (parties did not waive

challenge to damages award despite waiver of detailed factual 

findings). 

Consistent with the parties' agreement, and in compliance 

with rule 20(8)(a), the judge "answer[ed] special questions on 

the elements of each claim, at a level of detail comparable to a 

special jury verdict form pursuant to Mass. R. Civ. P. 49 (a)[, 

365 Mass. 812 (1974)]." We therefore review to determine

"whether 'anywhere in the evidence, from whatever source 

derived, any combination of circumstances could be found from 

which a reasonable inference could be drawn in favor of the 

[prevailing party].'" Motsis v. Ming's Supermkt., Inc., 96 

Mass. App. Ct. 371, 380 (2019), quoting Dobos v. Driscoll, 404 

Mass. 634, 656, cert. denied, 493 U.S. 850 (1989).9

9 Although the judge made "remarks" as he answered the 

special questions, he was not required to do so under rule 20,

and we are not bound by them. See Rule 20(8)(b) of the Rules of 

the Superior Court (2018).
12

b. Evidence of a contract. "[T]o create an enforceable 

contract, there must be agreement between the parties on the 

material terms of that contract, and the parties must have a 

present intention to be bound by that agreement." Situation 

Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000). 

"[A]n agreement may be enforceable that anticipates a more 

formal writing, but in such a case, the parties must have agreed 

upon either the material terms, or upon the 'formulae and 

procedures' that will provide the material terms at some future 

date." Frishman v. Maginn, 75 Mass. App. Ct. 103, 110-111 

(2009). "Ordinarily the question whether a contract has been 

made is one of fact" (citation omitted). Coldwell 

Banker/Hunneman v. Shostack, 62 Mass. App. Ct. 635, 640 (2004).

Here, the judge could have found that the parties reached a 

binding contract either because the terms altered by K&K's 

November 30 addendum were not material or because ZEA1 accepted 

those new terms. 

i. November 29 counteroffer. On the issue of materiality, 

the terms of K&K's November 30 addendum differed from ZEA1's 

November 29 counteroffer in three respects: the provision that

the seller would lease and collect rent through closing was 

omitted, the new rental provision was added, and the storefront 

provision was added. An express term that the seller would 

lease and collect rents through closing was not necessary as it 
13

merely memorialized the status quo (and K&K already was aware 

that ZEA1 intended to lease the building prior to the closing). 

With respect to the new rental provision, Kuritnik testified 

that the term was not essential, and K&K sought only to be 

involved in the rental process as a courtesy that was typically 

extended to a buyer.10 While ZEA1 presented evidence that giving 

K&K approval rights over leases was material to the seller, 

other evidence established that the leasing process was largely 

complete in December 2017 and, therefore, K&K's approval rights 

would have been limited.11 Finally, Kuritnik testified that he

did not view the storefront provision as essential or

significant, and the term required only painting one door at 

minimal cost. If credited by the judge, this evidence was 

sufficient to demonstrate that any differences between the 

November 29 counteroffer and the November 30 addendum concerned 

nonmaterial aspects of the parties' agreement, including the 

specifics of ZEA1's leasing of the damaged building within the 

agreed on price range. See Goren v. Royal Invs. Inc., 25 Mass. 

App. Ct. 137, 141 (1987) (binding preliminary agreement existed

10 Sadler also testified that the November 30 addendum 

provided a framework for the P&S and included "a lot of trivial 

smaller fine points."

11 Nine of the ten residential units and four of the six 

commercial units in the damaged building were either rented or 

in the process of being rented in December 2017.
14

even where subsequent bargaining in anticipation of purchase and 

sale agreement over "subsidiary matters [where] norms exist for 

their customary resolution").

The judge also could have found that the November 29 

counteroffer memorialized all material terms of the parties' 

agreement. See McCarthy v. Tobin, 429 Mass. 84, 85 (1999) 

(offer to purchase enforceable that specified "price to be paid, 

deposit requirements, limited title requirements, and the time 

and place for closing"). Evidence of K&K's acceptance of those 

terms included Sadler's confirmation to Eugene after receiving 

the November 29 counteroffer that the deal was moving forward

and Kuritnik's initials next to the material changes (i.e., the 

P&S and closing dates) on the form.12 See Restatement (Second) 

of Contracts § 59 comment a (1981) ("definite and seasonable 

expression of acceptance is operative despite the statement of 

additional or different terms if the acceptance is not made to 

depend on assent to the additional or different terms").

12 The judge also could have found that ZEA1 waived the 

"time is of the essence" provision because Eugene followed up 

about the November 29 counteroffer the day after it expired by 

its own terms, and provided K&K with the rental applications

after learning that the deposit was delivered on December 4, 

rather than contemporaneously with the formation of the 

agreement. See McCarthy, 429 Mass. at 89 (provision may be 

waived through words and conduct; once waived, "time was no 

longer of the essence").
15

ii. November 30 addendum. Even if the changes in the 

November 30 addendum were material, the judge could find that 

the terms were accepted by Eugene's November 30 e-mail message 

to Sadler explaining that the one door would be painted to 

match, and that Sadler could pick up the rental applications.

To the extent ZEA1 argues that Eugene lacked the authority 

to accept any terms of the agreement on its behalf, we are not 

persuaded. The evidence was that Eugene, as ZEA1's agent,13 had 

actual authority to enter into a binding agreement on ZEA1's 

behalf (either because Eugene had decision-making authority or 

because Zachary agreed to the changed terms).14 See Baldwin's 

Steel Erection Co. v. Champy Constr. Co., 353 Mass. 711, 715 

(1968) ("The authority of an agent is a question of fact, the 

answer to which depends upon the inferences to be drawn from a 

variety of circumstances" [citation and quotation omitted]). 

13 ZEA1 does not dispute that Eugene was acting as its agent

and broker. Instead, ZEA1 focuses on the scope of Eugene's 

authority because "[a] real estate agent . . . is not an agent 

of general powers. As a rule he has no authority to bind his 

principal beyond the terms of the specific authority conferred 

upon him by the agreement for employment." Harrigan v. Dodge, 

216 Mass. 461, 463 (1914).

14 "Actual authority can be express or implied. Actual 

authority results when the principal explicitly manifests 

consent, either through words or conduct, that the agent should 

act on behalf of the principal. Implied authority is actual 

authority that evolves by implication from the conduct of the 

parties." (Citations omitted.) Theos & Sons, Inc. v. Mack 

Trucks, Inc., 431 Mass. 736, 743 n.13 (2000).
16

Zachary maintained that he had the final word on decisionmaking, but the judge was not required to accept that evidence, 

see Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014) 

("credibility of the witnesses rests within the purview of the 

trial judge"); rather he could find that Eugene had broader 

authority to finalize the transaction where he operated a longstanding business with his brother, handled all the property 

sales for that business, was charged with discussing this sale

and all others on behalf of ZEA1, and was a fifty percent

beneficiary of ZEA1. See Baldwin's Steel Erection Co., supra

(sufficient evidence that general manager had authority to enter 

into binding contract on behalf of company notwithstanding 

statement that sister's signature was required on agreement).

The judge also could have found that Zachary expressly 

agreed to the terms in the November 30 addendum as the brothers 

spoke daily about business and Eugene continued to engage with

K&K in early December as if an agreement had been reached.15 

iii. Intent to be bound. As to the parties' intent to be 

bound, the preprinted form that they used stated that it was a 

legal document intended to creating binding obligations; Zachary 

15 Given Eugene's communications with Sadler through early 

December, the judge could have rejected the testimony that the 

terms of the November 30 addendum were unacceptable to Zachary 

and that Eugene was under "strict instructions" from Zachary to 

stop all negotiations with K&K as of November 30.
17

testified that he understood that provision when signing the 

November 29 counteroffer. The parties' conduct following the

exchange of the November 29 counteroffer and the November 30 

addendum also was indicative of an intent to be bound. K&K 

delivered a deposit to be held in escrow and so notified ZEA1. 

Thereafter, Eugene provided Sadler with rental applications for 

K&K's approval and agreed to paint one of the doors. After K&K 

approved the applications, ZEA1 executed at least two of the 

leases. See Hunneman Real Estate Corp. v. Norwood Realty, Inc., 

54 Mass. App. Ct. 416, 423 n.11 (2002), quoting 1 Corbin, 

Contracts § 2.9, at 154 (rev. ed. 1993) ("The subsequent conduct 

and interpretation of the parties themselves may be decisive of 

the question as to whether a contract has been made, even though 

a document was contemplated and has never been executed").16 See 

16 ZEA1 also argues that any agreement reached was illegal 

because G. L. c. 112, § 87RR, required Sadler, a licensed 

salesperson, to obtain approval from the real estate broker for 

whom he worked before negotiating or completing any transaction 

or agreement. ZEA1 failed to raise the affirmative defense of 

illegality in the Superior Court. See Mass. R. Civ. P. 8 (c), 

365 Mass. 749 (1974). In these circumstances, we see no reason 

to depart from the general rule that "a failure to plead an 

affirmative defense results in the waiver of that defense and 

its exclusion from the case" (citation omitted). Anthony's Pier 

Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991). To the 

extent ZEA1 argues that we should consider a defense of 

illegality, even though not pleaded, when "the evidence 'shows a 

contract which is inherently wrongful or which is violative of 

some fundamental principle of public policy,'" we are 

unpersuaded that exception applies here. O'Donnell v. Bane, 385 

Mass. 114, 117 (1982), quoting Gleason v. Mann, 312 Mass. 420, 

422 (1942). The record does not demonstrate an agreement that 
18

also McCarthy, 429 Mass. at 85, 87-88 (execution of purchase and 

sale agreement not necessary to bind parties; offer to purchase 

on preprinted GBREB form enforceable); Goren, 25 Mass. App. Ct. 

at 139, 141 (offer to purchase binding even where mutually 

acceptable purchase and sale agreement contemplated by offer not 

executed by both parties). But see Walsh v. Morrissey, 63 Mass. 

App. Ct. 916, 916 (2005) (offer to purchase not binding contract 

where parties had differing interpretation of provisions, 

material terms "were left too vague," and offer explicitly 

contemplated subsequent P&S agreement).

c. Statute of Frauds. ZEA1 contends that the enforcement 

of any agreement is barred by the Statute of Frauds because the 

November 30 addendum was not signed by Zachary. "As a black 

letter rule, the Statute of Frauds bars suit '[u]pon a contract 

for the sale of lands . . . or of any interest in or concerning 

them . . . [u]nless the promise, contract or agreement . . . is 

in writing and signed by the party to be charged therewith.'" 

Hurtubise v. McPherson, 80 Mass. App. Ct. 186, 188 (2011), 

quoting G. L. c. 259, § 1. To satisfy the Statute of Frauds, a 

writing (or multiple writings when read together) "must contain 

is either wrongful or violative of public policy; it reflects 

only silence on the issue whether the real estate broker 

employing Sadler "approve[d] the negotiation and completion by 

[Sadler] . . . of [the] agreement." G. L. c. 112, § 87RR. We 

cannot fault K&K for failing to present such evidence absent 

notice that ZEA1 intended to raise an illegality defense.
19

directly, or by implication, all of the essential terms of the 

parties' agreement." Simon v. Simon, 35 Mass. App. Ct. 705, 709

(1994). See Brewster Wallcovering Co. v. Blue Mountain 

Wallcoverings, Inc., 68 Mass. App. Ct. 582, 600 (2007) (multiple 

writings read together can satisfy Statute of Frauds). "Whether 

a writing satisfies the Statute of Frauds is a question of law." 

Simon, supra.

If the November 29 counteroffer outlined all the material 

terms of the agreement, the Statute of Frauds is easily 

satisfied based on the written offer signed by both parties. If 

the November 30 addendum also included material terms, the 

Statute of Frauds is satisfied by reading the November 29 

counteroffer together with the November 30 e-mail message 

exchange between Sadler and Eugene.

The issue whether an e-mail message can satisfy the Statute 

of Frauds has not been squarely addressed by our case law. 

However, we have previously acknowledged that a legally binding 

contract may be formed through the exchange of e-mail messages. 

See Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App. Ct. 204, 

212 (2008); Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App. 

Ct. 29, 44-45 (2008). The Legislature expressly established the

legal effect of electronic records and signatures through the 

enactment of G. L. c. 110G, § 7, which provides:
20

"(a) A record or signature may not be denied legal effect 

or enforceability solely because it is in electronic form.

"(b) A contract may not be denied legal effect or 

enforceability solely because an electronic record was used 

in its formation.

"(c) If a law requires a record to be in writing, an 

electronic record satisfies the law.

"(d) If a law requires a signature, an electronic signature 

satisfies the law."

This statute reflects the realities of how business is often

conducted in today's marketplace.17 Cf. Goldstein v. Secretary 

of the Commonwealth, 484 Mass. 516, 534 (2020) (Kafker, J., 

concurring) ("Electronic signatures are the norm in the private 

sector and many areas of government"). 

On this record, we conclude that the e-mail message 

exchange constitutes an electronic record within the meaning of 

G. L. c. 110G, § 2,18 and, thus, has the legal effect of 

satisfying the "writing" requirement of the Statute of Frauds. 

G. L. c. 259, § 1. The messages were generated following

significant negotiations and included one message from Eugene 

with the signed November 29 counteroffer attached, Sadler's 

17 The judge could find that the parties agreed to "conduct 

transactions by electronic means," given their history of 

negotiating terms and presenting offers via e-mail and text 

messages. G. L. c. 110G, § 5 (b).

18 General Laws c. 110G, § 2, defines an "[e]lectronic 

record" as "a record created, generated, sent, communicated, 

received, or stored by electronic means."
21

response thereto about the new rental and the storefront 

provisions, and Eugene's acceptance of those provisions with

clarification. See G. L. c. 110G, § 9 (b) ("The effect of an 

electronic record or electronic signature . . . is determined 

from the context and surrounding circumstances at the time of 

its creation, execution, or adoption, including the parties' 

agreement, if any, and otherwise as provided by law"). The email messages also bear the necessary electronic signatures as 

they originated from Eugene's e-mail account, his signature 

appears in the exchange, and he acknowledged at trial that he 

sent the messages.19 See G. L. c. 110G, § 9 (a) ("electronic 

signature is attributable to a person if it was the act of the

person. The act of the person may be shown in any manner

. . ."). See also Michelson v. Sherman, 310 Mass. 774, 775-776

(1942) (signature of authorized agent satisfies Statute of 

Frauds).20 Accordingly, the requirements of the Statute of 

Frauds are satisfied.21

19 General Laws c. 110G, § 2, defines an "[e]lectronic 

signature" as "an electronic sound, symbol, or process attached 

to or logically associated with a record and executed or adopted 

by a person with intent to sign the record."

20 The judge could have found that Eugene had actual 

authority to bind ZEA1.

21 To be sure, the transmission of an e-mail message from 

the sender's account, without more, does not necessarily bind 

the author in a legally cognizable way. As was the case here, 
22

2. Remedies. a. Entitlement to damages. ZEA1 claims

that K&K's recovery must be limited to specific performance and 

not monetary damages.22 In Perroncello v. Donahue, 448 Mass. 

199, 205 (2007), the Supreme Judicial Court concluded that the 

seller of real property was entitled to both specific 

performance of the contract and additional damages (i.e., 

carrying costs) that he incurred as a result of the delay 

between the expected closing date and the actual date of 

conveyance. The court explained that "[t]his award is not 

inconsistent with specific performance," id., citing in support 

the proposition that "[a] party who seeks specific performance 

. . . may . . . be entitled to damages to compensate him for 

delay in performance." Id. at 205-206, quoting Restatement 

(Second) of Contracts § 378 comment d (1981). See Motsis, 96 

Mass. App. Ct. at 378-379 (lessor required to perform lease 

obligations and pay damages caused by previous failure to do so

and for any period of delay in completing specific performance). 

Accordingly, we discern no error in the award of lost profit 

damages for the period postdating the agreed on closing date.

the totality of the circumstances must support a conclusion that 

the sender intended to be so bound.

22 ZEA1 relies on the doctrine of anticipatory repudiation 

in support of its argument. Because that argument was not 

raised in the Superior Court, it is waived.
23

b. Calculation of damages. ZEA1 next maintains that it is 

entitled to certain monetary adjustments to the specific 

performance order based on carrying costs and expenses it paid 

after the agreed upon closing date that increased the 

properties' value. Our review of the damages award is highly 

deferential. See Spinosa, 98 Mass. App. Ct. at 10. "[T]o 

overturn such an award, we would have to determine that it was 

'clearly excessive in relation to what the plaintiff's evidence 

ha[d] demonstrated damages to be'" (citation omitted). Id.

K&K suggested a sound method to calculate lost profit 

damages, namely, to reach the appropriate amount by determining 

ZEA1's net operating income (i.e., rental income generated by 

the properties, minus ZEA1's expenses) and then subtracting

K&K's anticipated carrying costs had the agreed on deal been 

finalized. K&K amply supported its calculations by introducing 

ZEA1's Federal tax returns for 2018 through 2021, and providing 

testimony about the mortgage that K&K anticipated obtaining to 

finance the purchase of the properties. There was no error in 

the utilization of this procedure. 

However, in considering the evidence presented, there was a 

slight computational error.23 The judge awarded $483,705 in 

23 The judge could have found that in the forty-six month 

period from March 2018 through December 2021, ZEA1's net 

operating income was $665,764, and K&K would have paid $258,412 

in interest on its anticipated mortgage. In total, this equates 
24

damages. That amount appears to be based on a failure to adjust 

the 2018 figures to account for the fact that the closing was 

not set to occur until February 18, 2018. K&K acknowledged that 

lost profit damages should not include the months of January and 

February 2018, but failed to make the requisite adjustment in 

the total amounts presented to the judge.24 Accordingly, ZEA1 is 

entitled to a reduction in the lost profit damages award to 

reflect the correct amount of $460,482.25

to lost profits of $407,352 for the period from March 2018 to 

December 2021. To calculate the remaining lost profits from 

January 2022 through trial in June 2022, we discern no error in 

the judge's acceptance of K&K's suggestion that a reasonable 

monthly amount could be arrived at by using the average monthly 

damages from the preceding forty-six month period. That amount 

is $8,855 per month or $53,130 for the six-month period. The 

evidence then supports a total lost profit damages award of 

$460,482.

24 K&K presented evidence that ZEA1's net operating income 

was $123,244 for 2018; $218,749 for 2019; $164,639 for 2020; and 

$179,673 for 2021. K&K also presented evidence that ZEA1's net 

operating income for 2018, as adjusted to reflect the relevant 

ten-month period after the closing date, was $102,703. In its 

closing argument, K&K argued that ZEA1's net operating income 

was $686,305, for the period from March 2018 to December 2021. 

Accounting for the two-month adjustment, that amount should have 

been $665,764.

25 We are unpersuaded by ZEA1's remaining argument that it 

was entitled to further deductions for carrying costs and 

expenses it incurred. The net operating income amount did

include deductions derived from the tax returns for costs

associated with cleaning and maintenance, insurance, taxes, 

utilities, water and sewer, trash collection, and plowing. The 

damages amount also reflected adjustments for K&K's anticipated 

mortgage interest payments. To the extent that ZEA1 sought 

further deductions, it was required to raise that argument in 

the first instance before the judge, and we discern no abuse of 
25

3. Deposit evidence. Finally, ZEA1 argues that the judge 

abused his discretion in declining to exclude all evidence of 

K&K's $5,000 deposit because a copy of the check was not 

produced during discovery.

ZEA1 points to 254 Code Mass. Regs. § 3.00(10)(b) (2005), 

which requires a broker (here, Sadler's employer) to keep a 

record of the deposit check held in escrow for a three-year

period. ZEA1 seemingly suggests, based on the regulation (cited

for the first time on appeal) and the nonproduction of the 

check, that the judge should have inferred that the deposit was 

never made and allowed ZEA1's motion in limine. We are not 

persuaded. Even in the absence of documentary evidence

establishing the existence of K&K's check, the judge was free to 

admit and credit Sadler's testimony that he received the check

at his office as sufficient evidence that the deposit was made. 

Accordingly, the judge did not abuse his discretion.26 See 

Laramie v. Philip Morris USA Inc., 488 Mass. 399, 414 (2021) 

(evidentiary decisions reviewed for abuse of discretion).

discretion in the judge's failure to consider the issue sua 

sponte. Cf. Flynn v. Wallace, 359 Mass. 711, 720 (1971) (judge 

has discretion to invoke unjust enrichment doctrine if specific 

performance ordered "following reasonable conflicting viewpoints 

on the law and facts").

26 Because we discern no abuse of discretion, we need not 

decide whether the motion sufficiently preserved this issue for 

appeal. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016).
26

Conclusion. So much of the judgment as awarded lost profit 

damages to K&K in the amount of $483,705 is vacated, and a new 

judgment shall enter awarding lost profit damages to K&K in the 

amount of $460,482. As so modified, the judgment is affirmed.27

So ordered.

27 K&K's request for appellate attorney's fees and costs is 

denied.