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
24-P-941
AMP ELECTRICAL, INC.
vs.
W.M. SCHULTZ CONSTRUCTION, INC. & another;1 TOWN OF WEST SPRINGFIELD, third-party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, AMP Electrical, Inc. (AMP), appeals from a
summary judgment dismissing its complaint against the
defendants, W.M. Schultz Construction, Inc. (Schultz), and
Endurance Assurance Corporation (Endurance). We affirm.2
Background. We summarize the undisputed material facts on
the summary judgment record, reserving certain facts for later
1 Endurance Assurance Corporation.
2We note that Schultz brought a third-party complaint against the town of West Springfield, which was also dismissed on summary judgment. AMP's appeal does not raise any separate issues regarding the dismissal of Schultz's third-party complaint. discussion. The town of West Springfield (town) is the owner of
a public construction project identified as Wastewater Pumping
Station Improvements (project). The town's project engineer
drafted plans and specifications for public bid by general
contractors and subbid contractors pursuant to G. L. c. 149,
§ 44F, for the project.
Schultz was awarded the general construction contract for
the project.3 Thereafter, the town's project engineer held
electrical subcontractor bid meetings, which AMP attended prior
to filing its subcontractor bid. At the meetings, the town
distributed the project's specifications and drawings to the
prospective electrical subcontractors. The town informed
prospective subcontractors of project updates by releasing
addenda to them during the prebidding process, some of which
were in response to questions raised by the prospective
subcontractors.4
As relevant here, the town issued Addendum No. 2 on March
19, 2018, which included the following question and response:
Question 15: "Who is responsible for excavation and backfill of underground electrical conduits?"
3 Subsequently, the town and Schultz entered into a written contract naming Schultz as the principal and Endurance as the surety. Endurance issued Schultz a payment bond for the project.
4 AMP does not dispute that it received Addendum Nos. 2 and 3 prior to filing its subcontract bid.
2 Response: "The electrical sub-bidder is responsible for this work."
The town issued Addendum No. 3 on March 26, 2018, and it, among
other things, replaced Drawing Sheet E-401 with Sheet E-401.
The revised Sheet E-401 provided additional trench details
regarding the excavation and backfill of underground electrical
conduits for the project.
On March 29, 2018, AMP filed its electrical subcontractor
bid; it was the lowest subbidder. On July 18, 2018, Schultz and
AMP entered into a written contract (subcontract) whereby
Schultz agreed to pay AMP $1,800,000 for "all work specified in
Division 16 of the specifications for Electrical," "the plans
referred to therein," and Addendum Nos. 2 and 3.5
On June 26, 2019, AMP submitted a change order to Schultz
requesting an increase in price in the amount of $88,730.70.
Among other things, AMP sought the increase for "[e]xcavation
and concrete easement" and "[b]ackfilling and compacting trench
and affected areas [a]sphalt patching." In short, AMP believed
the subcontract did not include excavation and backfilling work
and thus, requested that it be compensated for that additional
work. The town's project engineer rejected AMP's request,
stating that Addendum Nos. 2 and 3 clarified that the work AMP
5 Division 16 described the basic electrical requirements for the project.
3 now claims as extra was part of the electrical subbidder's
responsibility. Ultimately, on August 25, 2019, AMP informed
Schultz that it would proceed with the excavation and
backfilling work under protest and it provided an updated change
order (PCO #6) for the amount of $83,490.15. Schultz rejected
AMP's request for a change order and acknowledged that AMP would
proceed with the work under protest.
In May 2021, after Schultz failed to pay AMP for the work
it completed pursuant to PCO #6, AMP filed a complaint alleging
two counts against Schultz: breach of contract and unfair and
deceptive practices in violation of G. L. c. 93A, §§ 2 & 11.6
The complaint also sought recovery on a payment bond pursuant to
G. L. c. 149, § 29, from Endurance. The defendants moved for
summary judgment on all counts. AMP cross-moved for summary
judgment on the breach of contract and payment bond claims. The
judge allowed the defendants' motion for summary judgment and
denied AMP's cross motion for summary judgment. AMP timely
appealed from the summary judgment.
6 AMP's complaint alleged breach of contract for both (1) Schultz's failure to pay for the work it completed pursuant to PCO #6 and (2) unpaid retainage. However, between the filing of the complaint and the judge's summary judgment decision, AMP received payment for the retainage. Thus, this decision only addresses the remaining breach of contract claim concerning the work completed pursuant to PCO #6.
4 Discussion. On appeal, AMP asserts that the judge erred in
granting the defendants' motion for summary judgment. We review
the grant of summary judgment de novo. See Le Fort Enters.,
Inc. v. Lantern 18, LLC, 491 Mass. 144, 149 (2023). Where, as
here, the parties filed cross motions for summary judgment, we
view the evidence in the light most favorable to the party whose
motion was denied. See Smiley First, LLC v. Department of
Transp., 492 Mass. 103, 108 (2023). Summary judgment is
appropriate where "there is no genuine issue as to any material
fact" and "the moving party is entitled to a judgment as a
matter of law." Kourouvacilis v. General Motors Corp., 410
Mass. 706, 713 n.2 (1991). We discern no error in the judge's
grant of summary judgment in the defendants' favor.
On appeal, AMP asserts that it was only required to
complete the work designated in Division 16 of the subcontract.
AMP relies on language in G. L. c. 149, § 44F, and insists that
because the excavation and backfilling work described in
Addendum Nos. 2 and 3 was "neither a 'specification' nor a
contract term" and "was not directed to the electrical subbidder
in particular," AMP was not required to complete that work.
The judge determined that "Addendum No. 2 clarified that
the electrical subcontractor is responsible for all backfilling
and excavating." Further, the judge concluded that "[t]he
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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
24-P-941
AMP ELECTRICAL, INC.
vs.
W.M. SCHULTZ CONSTRUCTION, INC. & another;1 TOWN OF WEST SPRINGFIELD, third-party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, AMP Electrical, Inc. (AMP), appeals from a
summary judgment dismissing its complaint against the
defendants, W.M. Schultz Construction, Inc. (Schultz), and
Endurance Assurance Corporation (Endurance). We affirm.2
Background. We summarize the undisputed material facts on
the summary judgment record, reserving certain facts for later
1 Endurance Assurance Corporation.
2We note that Schultz brought a third-party complaint against the town of West Springfield, which was also dismissed on summary judgment. AMP's appeal does not raise any separate issues regarding the dismissal of Schultz's third-party complaint. discussion. The town of West Springfield (town) is the owner of
a public construction project identified as Wastewater Pumping
Station Improvements (project). The town's project engineer
drafted plans and specifications for public bid by general
contractors and subbid contractors pursuant to G. L. c. 149,
§ 44F, for the project.
Schultz was awarded the general construction contract for
the project.3 Thereafter, the town's project engineer held
electrical subcontractor bid meetings, which AMP attended prior
to filing its subcontractor bid. At the meetings, the town
distributed the project's specifications and drawings to the
prospective electrical subcontractors. The town informed
prospective subcontractors of project updates by releasing
addenda to them during the prebidding process, some of which
were in response to questions raised by the prospective
subcontractors.4
As relevant here, the town issued Addendum No. 2 on March
19, 2018, which included the following question and response:
Question 15: "Who is responsible for excavation and backfill of underground electrical conduits?"
3 Subsequently, the town and Schultz entered into a written contract naming Schultz as the principal and Endurance as the surety. Endurance issued Schultz a payment bond for the project.
4 AMP does not dispute that it received Addendum Nos. 2 and 3 prior to filing its subcontract bid.
2 Response: "The electrical sub-bidder is responsible for this work."
The town issued Addendum No. 3 on March 26, 2018, and it, among
other things, replaced Drawing Sheet E-401 with Sheet E-401.
The revised Sheet E-401 provided additional trench details
regarding the excavation and backfill of underground electrical
conduits for the project.
On March 29, 2018, AMP filed its electrical subcontractor
bid; it was the lowest subbidder. On July 18, 2018, Schultz and
AMP entered into a written contract (subcontract) whereby
Schultz agreed to pay AMP $1,800,000 for "all work specified in
Division 16 of the specifications for Electrical," "the plans
referred to therein," and Addendum Nos. 2 and 3.5
On June 26, 2019, AMP submitted a change order to Schultz
requesting an increase in price in the amount of $88,730.70.
Among other things, AMP sought the increase for "[e]xcavation
and concrete easement" and "[b]ackfilling and compacting trench
and affected areas [a]sphalt patching." In short, AMP believed
the subcontract did not include excavation and backfilling work
and thus, requested that it be compensated for that additional
work. The town's project engineer rejected AMP's request,
stating that Addendum Nos. 2 and 3 clarified that the work AMP
5 Division 16 described the basic electrical requirements for the project.
3 now claims as extra was part of the electrical subbidder's
responsibility. Ultimately, on August 25, 2019, AMP informed
Schultz that it would proceed with the excavation and
backfilling work under protest and it provided an updated change
order (PCO #6) for the amount of $83,490.15. Schultz rejected
AMP's request for a change order and acknowledged that AMP would
proceed with the work under protest.
In May 2021, after Schultz failed to pay AMP for the work
it completed pursuant to PCO #6, AMP filed a complaint alleging
two counts against Schultz: breach of contract and unfair and
deceptive practices in violation of G. L. c. 93A, §§ 2 & 11.6
The complaint also sought recovery on a payment bond pursuant to
G. L. c. 149, § 29, from Endurance. The defendants moved for
summary judgment on all counts. AMP cross-moved for summary
judgment on the breach of contract and payment bond claims. The
judge allowed the defendants' motion for summary judgment and
denied AMP's cross motion for summary judgment. AMP timely
appealed from the summary judgment.
6 AMP's complaint alleged breach of contract for both (1) Schultz's failure to pay for the work it completed pursuant to PCO #6 and (2) unpaid retainage. However, between the filing of the complaint and the judge's summary judgment decision, AMP received payment for the retainage. Thus, this decision only addresses the remaining breach of contract claim concerning the work completed pursuant to PCO #6.
4 Discussion. On appeal, AMP asserts that the judge erred in
granting the defendants' motion for summary judgment. We review
the grant of summary judgment de novo. See Le Fort Enters.,
Inc. v. Lantern 18, LLC, 491 Mass. 144, 149 (2023). Where, as
here, the parties filed cross motions for summary judgment, we
view the evidence in the light most favorable to the party whose
motion was denied. See Smiley First, LLC v. Department of
Transp., 492 Mass. 103, 108 (2023). Summary judgment is
appropriate where "there is no genuine issue as to any material
fact" and "the moving party is entitled to a judgment as a
matter of law." Kourouvacilis v. General Motors Corp., 410
Mass. 706, 713 n.2 (1991). We discern no error in the judge's
grant of summary judgment in the defendants' favor.
On appeal, AMP asserts that it was only required to
complete the work designated in Division 16 of the subcontract.
AMP relies on language in G. L. c. 149, § 44F, and insists that
because the excavation and backfilling work described in
Addendum Nos. 2 and 3 was "neither a 'specification' nor a
contract term" and "was not directed to the electrical subbidder
in particular," AMP was not required to complete that work.
The judge determined that "Addendum No. 2 clarified that
the electrical subcontractor is responsible for all backfilling
and excavating." Further, the judge concluded that "[t]he
contract documents made clear that AMP was required to excavate
5 and backfill underground electrical conduits." We discern no
error in the judge's determination.
As relevant here, G. L. c. 149, § 44F states,
"[e]very contract subject to [G. L. c. 149, § 44A] shall include specifications . . . . Such specifications shall have a separate section for each of the following classes of work if in the estimate of the awarding authority such class of work will exceed $25,000: . . . (o) electrical work, . . . . Each separate section in the specifications . . . shall specify by number each sheet of plans showing work to be done by the subcontractor under such section, . . . . Each class of work set forth in a separate section of the specifications pursuant to this section shall be a sub-trade designated in the appropriate category of the general bid form and shall be the matter of subcontract made on the basis of the sub-bids."
G. L. c. 149, § 44F (1) (a). This language requires each class
of work to be listed in separate sections of the specifications,
but those specifications incorporate "number[ed] sheet[s] of
plans." Id. Here, Division 16, in listing the electrical
"[w]ork to be done," referenced Sheet E-401. That sheet, as
amended by Addendum 3, showed the requirements to provide a
concrete encased ductbank thirty-six inches below grade and to
backfill the resulting trench. Nothing in G. L. c. 149, § 44F
prohibits an awarding authority from clarifying a class of work
in addenda, as AMP suggests it does. Indeed, during the
prebidding process, questions arise and clarifications must be
provided, and that is what occurred here. Here, the town
provided clarification in the form of Addendum Nos. 2 and 3,
both of which AMP received before it submitted its bid, and
6 AMP's bid was in response to the specifications and supplemental
documents, including the addenda.
AMP acknowledges that it received notice of Addendum Nos. 2
and 3, yet insists that excavation and backfilling are not
customary electrical work, and thus, are the contractor's
responsibility. However, AMP did not proffer any evidence to
support this assertion on summary judgment. Contrast John F.
Miller Co. v. George Fichera Constr. Corp., 7 Mass. App. Ct.
494, 499 (1979) (court permitted evidence of business custom in
construction and plumbing industry to resolve ambiguity with
respect to plumbing subcontractor's duty to install certain
toilet room accessories). Because no such evidence was
proffered here, our analysis focuses on the language of the
contract before us.7
AMP was on sufficient notice that its subcontract included
the work it now claims was extra. AMP signed the subcontract
which stated that AMP "agree[d] to furnish all labor and
materials required for the completion of all work specified in
Division 16 of the specifications for Electrical and the plans
7 At oral argument, AMP maintained that the town engineer's suggestion that AMP could "sub out" the excavation and backfilling work signaled that such work was not customary electrical work. However, the affidavit from AMP's president does not sufficiently address the custom of the electrical industry. Without a sufficient affidavit or other evidence, we remain unpersuaded that there was a genuine issue of material fact barring summary judgment.
7 referred to therein and Addenda . . . No. 2 dated 3/19/18, and
No. 3 dated 3/26/18." See John F. Miller Co., 7 Mass. App. Ct.
at 499 ("Sections of a construction contract, as of any other
kind, ought to be construed to give a reasonable effect to
each"). Thus, the subcontract clearly included the excavation
and backfilling work as described in Addendum Nos. 2 and 3.
Additionally, the "E" in Sheet E-401 from Addendum No. 3 stands
for "electrical." Such a designation at the very least signaled
to AMP that it should review the update because it contained
electrical work therein.
AMP was on notice of Addendum Nos. 2 and 3's requirements
when it submitted its bid; any confusion it may have had
regarding whether the excavation and backfilling work were its
duties should have been resolved by AMP clarifying such. See
John F. Miller Co., 7 Mass. App. Ct. at 498. Even reviewing the
evidence in the light most favorable to AMP, we discern no error
in the judge's determination that the subcontract included the
excavation and backfilling work.8 Accordingly, where all of
AMP's claims turned on its allegation that the subcontract did
8 We pause to note that, as a public policy matter, parties to a construction contract must be able to confidently rely upon project updates communicated via addenda and other similar forms. It would be unworkable and inefficient if the entirety of a project's specifications were to be updated each time a question arose.
8 not include the excavation and backfilling work, summary
judgment properly entered in favor of the defendants.9
Judgment affirmed.
By the Court (Blake, C.J., Sacks & D'Angelo, JJ.10),
Clerk Entered: July 31, 2025.
9 The defendants and town seek appellate attorney's fees and double costs, pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), on the ground that AMP's appeal is frivolous. Considering the subcontract's language and totality of the other circumstances, we agree that AMP's appeal is frivolous and therefore an award of fees is appropriate. Pursuant to Mass. R. A. P. 26 (a), as appearing in 481 Mass. 1655 (2019), single costs will be awarded to the defendants and town. Consistent with the requirements of Fabre v. Walton, 441 Mass. 9, 10 (2004), the defendants and town may file a request for appellate attorney's fees and single costs, with supporting documentation, within fourteen days of the issuance of the decision in this case. AMP shall have fourteen days thereafter within which to respond. See id.
10 The panelists are listed in order of seniority.