Bloomsouth Flooring Corp. v. Boys' & Girls' Club of Taunton Inc.

800 N.E.2d 1038, 440 Mass. 618, 2003 Mass. LEXIS 919
CourtMassachusetts Supreme Judicial Court
DecidedDecember 30, 2003
StatusPublished
Cited by16 cases

This text of 800 N.E.2d 1038 (Bloomsouth Flooring Corp. v. Boys' & Girls' Club of Taunton Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bloomsouth Flooring Corp. v. Boys' & Girls' Club of Taunton Inc., 800 N.E.2d 1038, 440 Mass. 618, 2003 Mass. LEXIS 919 (Mass. 2003).

Opinion

Spina, J.

The plaintiff subcontractors appeal from a grant of summary judgment in favor of the defendant. Their cases were consolidated with others, all arising from the default by the general contractor in the course of constructing a building on the defendant’s property.3 The plaintiffs, who perfected mechanics’ liens on the property pursuant to G. L. c. 254, § 4, claim they are entitled to a portion of funds retained or unpaid by the defendant to the general contractor. The judge, however, found that because there was no “amount due” or “to become due” under the original contract at the time the plaintiffs notified the defendant of the filing of their subcontracts, the statute barred any recovery. Both plaintiffs applied for direct appellate review, which we granted. We affirm the judgment.

1. Facts. The facts are not in dispute. Warfield Services, Inc., the general contractor, entered into a contract in August, 2000, with the Boys’ and Girls’ Club (club) of Taunton Incorporated for the construction of a new child care center on the club’s property. BloomSouth Flooring Corporation subcontracted with Warfield to provide flooring for the project, and RCS Group, Inc., subcontracted to provide roofing. Prior to completion, Warfield abandoned the project on or about March 28, 2001, and the club terminated Warfield’s general contract on April 12, 2001.

The amount of the general contract between the club and Warfield, including change orders, was $1,582,823.83. As of March 14, 2001, the date of the last payment made to Warfield under the contract, the club had paid Warfield $1,411,648.95 for work performed.4 The unpaid balance of the contract was $171,174.88, including $74,297.31 in retainage held by the club pursuant to article five of the general contract. Warfield never applied for either final payment or payment of the retainage, and the club subsequently paid another contractor more than $300,000 to complete the project. Taking into account the unpaid balance of the original contract, the club therefore had to [620]*620spend approximately $130,000 over the amount required under the original contract.

As a result of Warfield’s nonpayment of sums owed to them, both plaintiffs filed notices of subcontracts within thirty days after the termination of the general contract, attempting to place liens on the club’s real estate under G. L. c. 254, § 4.5 &Bloom-South, which had been paid $57,750 for work performed, filed suit to recover an additional $85,428, while RCS, which received $38,475, sought to be paid $18,929.85. Claiming there was no money due the general contractor to which such liens might attach, the club moved for summary judgment. A Superior Court judge granted the motion and dismissed the complaints. This appeal followed.

2. Discussion. General Laws c. 254, § 4, provides, in pertinent part, that “[a subcontractor’s] lien shall not exceed the amount due or to become due under the original contract as of the date notice of the filing of the subcontract is given by the subcontractor to the owner.” The sole issue on appeal is whether there was an amount “due or to become due” under the original contract as of the dates the plaintiffs filed their notices. Bloom-South filed and served a notice of subcontract to the club on or about April 20, 2001; RCS did likewise on or about May 9, 2001.6 Both notices, as stated previously, were served after the general contract was terminated because of Warfield’s abandonment.

Under the original contract, the club was entitled to withhold five per cent of the progress payments made to Warfield as retainage during the course of the project. On substantial completion of the work, progress payments were to be increased to [621]*621reach the full amount of the contract sum (minus any amounts determined by the architect for incomplete work, retainage applicable to such work, and unsettled claims). Final payment, “constituting the entire unpaid balance of the Contract Sum,” was to be made by the club when the contractor had fully performed the contract and the architect had issued a final certificate of payment. The judge concluded that, because none of the conditions required for payment existed after Warfield abandoned the project on March 28, 2001, there was no “ ‘amount due’ or ‘to become due’ ‘under the original contract’ ” when the plaintiffs filed their notices of subcontract (emphasis added). See G. L. c. 254, § 4.

The plaintiffs argue that the unpaid balance of the contract, totaling $171,174.85 (including the $74,297.31 in retainage), was money “due or to become due” under Warfield’s contract with the club (notwithstanding the fact that the default by War-field ultimately cost the club some $130,000). The plaintiffs insist that their interpretation of the statute is the only one consistent with the Legislature’s intent to provide security for building contractors and subcontractors that furnish labor and materials to improve real property. See Tremont Tower Condominium, LLC v. George B.H. Macomber Co., 436 Mass. 677, 679 (2002), quoting Hammill-McCormick Assocs., Inc. v. New England Tel. & Tel. Co., 399 Mass. 541, 542-543 (1987). BloomSouth asserts that the club undeniably benefited from the subcontractors’ services, and that BloomSouth had a “valid expectation” of being fully compensated for its services from the unpaid contract balance of $171,174.86. RCS contends it should not have had to assume the risk that the club would use those funds to complete the work of the general contractor that defaulted, at the expense of subcontractors who had already contributed to the improvement of the realty.

In support of their argument, the plaintiffs point out that the club made progress payments to Warfield without receiving waivers of hen indicating that subcontractors and suppliers had been paid, despite having informed Warfield in January, 2001, that it would not make any more payments until it received such releases. Indeed, RCS claims that the club “was fully aware that Warfield had failed to pay its subcontractors amounts [622]*622that the [c]lub had paid to Warfield for work performed by those subcontractors.”7 Acknowledging that it could have protected itself by filing its notice of subcontract prior to starting work, RCS asserts that contractors and subcontractors hesitate to do so because of the sense of distrust created by such action at the outset of a project.8 Rather, it argues, the risk of loss should fall on the club, which could have withheld payment to Warfield until the general contractor provided the waivers of lien that the club had requested (and which, BloomSouth asserts, is a common practice in the construction industry).

“The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Here, the declaration in G. L. c. 254 that a subcontractor’s lien shall not exceed the amount “due or to become due under the original contract” was added in 1918, see St. 1918, c.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bruno v. Alliance Rental Group, LLC
Massachusetts Appeals Court, 2023
Midwest Constr. Servs., Inc. v. Avalonbay Cmtys., Inc.
104 N.E.3d 682 (Massachusetts Appeals Court, 2018)
D5 Iron Works, Inc. v. Danvers Fish & Game Club, Inc.
102 N.E.3d 427 (Massachusetts Appeals Court, 2018)
McAnarney v. Clinton Millworks, LLC
30 Mass. L. Rptr. 236 (Massachusetts Superior Court, 2012)
Superior Mechanical Plumbing & Heating, Inc. v. Insurance of the West
965 N.E.2d 890 (Massachusetts Appeals Court, 2012)
Suffolk Construction Co. v. Illinois Union Insurance
951 N.E.2d 944 (Massachusetts Appeals Court, 2011)
National Lumber Co. v. Inman
933 N.E.2d 675 (Massachusetts Appeals Court, 2010)
Soarmar, Inc. v. Pinnconn, LLC
27 Mass. L. Rptr. 21 (Massachusetts Superior Court, 2010)
Maverick Construction Management Services, Inc. v. Evergrass, Inc.
27 Mass. L. Rptr. 41 (Massachusetts Superior Court, 2010)
Laurano v. Langlois
26 Mass. L. Rptr. 441 (Massachusetts Superior Court, 2010)
Aware, Inc. v. CENTILLIUM COMMUNICATIONS, INC.
604 F. Supp. 2d 306 (D. Massachusetts, 2009)
Nitro Dynamics, Inc. v. Petruzzi Bros.
24 Mass. L. Rptr. 493 (Massachusetts Superior Court, 2008)
Rich v. Tamarack Ski Corp.
24 Mass. L. Rptr. 448 (Massachusetts Superior Court, 2008)
National Lumber Co. v. Walsh
2007 Mass. App. Div. 65 (Mass. Dist. Ct., App. Div., 2007)
C & H Masonry, Inc. v. Gould
2004 Mass. App. Div. 47 (Mass. Dist. Ct., App. Div., 2004)

Cite This Page — Counsel Stack

Bluebook (online)
800 N.E.2d 1038, 440 Mass. 618, 2003 Mass. LEXIS 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bloomsouth-flooring-corp-v-boys-girls-club-of-taunton-inc-mass-2003.