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
25-P-466
JANEY CONSTRUCTION MANAGEMENT AND CONSULTING, INC.
vs.
RANDI LOUISE WHITMORE GUSCOTT 1 & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises from a dispute between a construction
company and a deceased homeowner's heirs and estate over a
written construction contract (contract) to rebuild the
decedent's home (project) after it was destroyed by a tragic
fire. The plaintiff construction company, Janey Construction
Management and Consulting, Inc., commenced this action in
Superior Court seeking to enforce a mechanic's lien, and to
1As an heir of Valerie Whitmore Guscott, also known as Valerie Faye Whitmore Guscott.
2Charlie Rose Whitmore Guscott and Kennet Bartley Whitmore Guscott, as heirs of Valerie Whitmore Guscott, and Wanda Whitmore, as the personal representative of the estate of Valerie Whitmore Guscott. recover damages for breach of contract and quantum meruit. The
personal representative of the estate of Valerie Whitmore
Guscott filed a counterclaim for breach of contract, negligence,
violation of G. L. c. 142A (Massachusetts Home Improvement Act),
violation of G. L. c. 93A (Massachusetts Consumer Protection
Act), and sought a declaratory judgment regarding the parties'
rights and obligations in connection with the project. 3 A judge
(motion judge) dismissed the plaintiff's claims for enforcement
of a mechanic's lien and quantum meruit about eighteen months
before trial. Following a six-day trial, a jury found both
parties breached the contract but awarded no damages. The jury
issued an advisory opinion that the plaintiff was liable for
several G. L. c. 93A violations and recommended damages. After
a hearing, careful consideration of the trial evidence, and
review of the parties' post-trial written submissions, the trial
judge issued detailed findings that adopted the jury's advisory
verdict in part and ordered damages for the defendants totaling
$103,250. 4
3 The negligence claim was dismissed by agreement before it reached the jury. The Massachusetts Home Improvement Act claim was merged with the G. L. c. 93A claim.
4 The jury's advisory award included an additional $200,000 for the plaintiff charging a different interest rate from that provided in the contract, which the judge rejected.
2 On appeal, the plaintiff claims that the motion judge erred
in dismissing the quantum meruit claim, the trial judge abused
her discretion by allowing an expert witness to testify on
certain issues, and the final damages awarded were excessive.
We affirm.
Background. In March 2017, a fire burned down Valerie
Whitmore Guscott's home, killing her husband and father. The
plaintiff's principal, Greg Janey, had known Whitmore Guscott's
deceased husband for over forty years as a mentor in the
construction business. In December 2017, Whitmore Guscott
contracted with the plaintiff to rebuild her home. The
scheduled completion date for the project was March 30, 2018.
Payment for the project was to be in a lump sum funded by fire
insurance proceeds (policy). The project faced substantial
delays, which the plaintiff contends were due to a delay in
receiving funds from insurance, and the defendants claim were
due to poor project management. Whitmore Guscott lived in a
rental property for about a year until the temporary living
expense allowance under the policy was exhausted. 5 For over a
year, beginning in May 2018, two months after the scheduled
completion date, until a certificate of occupancy was issued for
the project in June 2019, Whitmore Guscott and her children
5 Her three children attended college and resided with her when not at school.
3 lived at several hotels and stayed in relatives' homes. When
the Whitmore Guscott family finally returned to their rebuilt
home, they encountered a host of construction defects and
property damage. Ultimately, the plaintiff did not complete all
the repairs, and the defendants did not pay the full contract
price.
Discussion. 1. The quantum meruit claim. Generally, "[a]
plaintiff is not entitled to recovery on a theory of quantum
meruit where there is a valid contract that defines the
obligations of the parties." Boston Med. Ctr. Corp. v.
Secretary of the Executive Office of Human Servs., 443 Mass.
447, 467 (2012). There are two exceptions to this rule: (1)
where the parties dispute whether there was a valid contract and
the claims are brought in the alternative, see Chang v.
Winklevoss, 95 Mass. App. Ct. 202, 211 (2019); and (2) where the
plaintiff claims to have conferred additional value not covered
by the contract. See Sugarman & Sugarman, P.C. v. Shapiro, 102
Mass. App. Ct. 816, 819-820 (2023). Here, the plaintiff does
not dispute that there was a valid, fully integrated
construction contract between the parties for the project. Nor
does the plaintiff claim that any additional value was conferred
beyond the scope of the contract. Instead, relying solely on
the Supreme Judicial Court's holding in G4S Tech. LLC v.
Massachusetts Tech. Park Corp., 479 Mass. 721 (2018) (G4S) that
4 a contractor may maintain a contract and quantum meruit claim
despite the contractor's failure to comply strictly with
contractual requirements unrelated to the design and
construction itself, the plaintiff asserts that the motion judge
erred by dismissing its quantum meruit claim. We disagree.
In G4S, a builder claimed to have completed around $10
million in services that were uncompensated and uncovered by the
contract, because the other party did not complete necessary
preparation work before construction. G4S at 727. The Supreme
Judicial Court held that the builder was barred from contractual
recovery because of material breaches of the contract's payment
terms, unrelated to the construction itself, but potentially
could recover under equitable theories for the $10 million extra
value provided. Id. at 723, 735. Thus, G4S is an example of,
not an exception to, the general requirement that a plaintiff
must identify services not covered by a valid contract to
proceed with a quantum meruit claim. G4S did not alter the
requirement that a plaintiff must identify value conferred
beyond the contract to sustain a quantum meruit claim. Here,
the plaintiff did not show at the motion to dismiss stage that
the exception contained in G4S applies.
2. Admission of expert testimony. The plaintiff also
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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
25-P-466
JANEY CONSTRUCTION MANAGEMENT AND CONSULTING, INC.
vs.
RANDI LOUISE WHITMORE GUSCOTT 1 & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises from a dispute between a construction
company and a deceased homeowner's heirs and estate over a
written construction contract (contract) to rebuild the
decedent's home (project) after it was destroyed by a tragic
fire. The plaintiff construction company, Janey Construction
Management and Consulting, Inc., commenced this action in
Superior Court seeking to enforce a mechanic's lien, and to
1As an heir of Valerie Whitmore Guscott, also known as Valerie Faye Whitmore Guscott.
2Charlie Rose Whitmore Guscott and Kennet Bartley Whitmore Guscott, as heirs of Valerie Whitmore Guscott, and Wanda Whitmore, as the personal representative of the estate of Valerie Whitmore Guscott. recover damages for breach of contract and quantum meruit. The
personal representative of the estate of Valerie Whitmore
Guscott filed a counterclaim for breach of contract, negligence,
violation of G. L. c. 142A (Massachusetts Home Improvement Act),
violation of G. L. c. 93A (Massachusetts Consumer Protection
Act), and sought a declaratory judgment regarding the parties'
rights and obligations in connection with the project. 3 A judge
(motion judge) dismissed the plaintiff's claims for enforcement
of a mechanic's lien and quantum meruit about eighteen months
before trial. Following a six-day trial, a jury found both
parties breached the contract but awarded no damages. The jury
issued an advisory opinion that the plaintiff was liable for
several G. L. c. 93A violations and recommended damages. After
a hearing, careful consideration of the trial evidence, and
review of the parties' post-trial written submissions, the trial
judge issued detailed findings that adopted the jury's advisory
verdict in part and ordered damages for the defendants totaling
$103,250. 4
3 The negligence claim was dismissed by agreement before it reached the jury. The Massachusetts Home Improvement Act claim was merged with the G. L. c. 93A claim.
4 The jury's advisory award included an additional $200,000 for the plaintiff charging a different interest rate from that provided in the contract, which the judge rejected.
2 On appeal, the plaintiff claims that the motion judge erred
in dismissing the quantum meruit claim, the trial judge abused
her discretion by allowing an expert witness to testify on
certain issues, and the final damages awarded were excessive.
We affirm.
Background. In March 2017, a fire burned down Valerie
Whitmore Guscott's home, killing her husband and father. The
plaintiff's principal, Greg Janey, had known Whitmore Guscott's
deceased husband for over forty years as a mentor in the
construction business. In December 2017, Whitmore Guscott
contracted with the plaintiff to rebuild her home. The
scheduled completion date for the project was March 30, 2018.
Payment for the project was to be in a lump sum funded by fire
insurance proceeds (policy). The project faced substantial
delays, which the plaintiff contends were due to a delay in
receiving funds from insurance, and the defendants claim were
due to poor project management. Whitmore Guscott lived in a
rental property for about a year until the temporary living
expense allowance under the policy was exhausted. 5 For over a
year, beginning in May 2018, two months after the scheduled
completion date, until a certificate of occupancy was issued for
the project in June 2019, Whitmore Guscott and her children
5 Her three children attended college and resided with her when not at school.
3 lived at several hotels and stayed in relatives' homes. When
the Whitmore Guscott family finally returned to their rebuilt
home, they encountered a host of construction defects and
property damage. Ultimately, the plaintiff did not complete all
the repairs, and the defendants did not pay the full contract
price.
Discussion. 1. The quantum meruit claim. Generally, "[a]
plaintiff is not entitled to recovery on a theory of quantum
meruit where there is a valid contract that defines the
obligations of the parties." Boston Med. Ctr. Corp. v.
Secretary of the Executive Office of Human Servs., 443 Mass.
447, 467 (2012). There are two exceptions to this rule: (1)
where the parties dispute whether there was a valid contract and
the claims are brought in the alternative, see Chang v.
Winklevoss, 95 Mass. App. Ct. 202, 211 (2019); and (2) where the
plaintiff claims to have conferred additional value not covered
by the contract. See Sugarman & Sugarman, P.C. v. Shapiro, 102
Mass. App. Ct. 816, 819-820 (2023). Here, the plaintiff does
not dispute that there was a valid, fully integrated
construction contract between the parties for the project. Nor
does the plaintiff claim that any additional value was conferred
beyond the scope of the contract. Instead, relying solely on
the Supreme Judicial Court's holding in G4S Tech. LLC v.
Massachusetts Tech. Park Corp., 479 Mass. 721 (2018) (G4S) that
4 a contractor may maintain a contract and quantum meruit claim
despite the contractor's failure to comply strictly with
contractual requirements unrelated to the design and
construction itself, the plaintiff asserts that the motion judge
erred by dismissing its quantum meruit claim. We disagree.
In G4S, a builder claimed to have completed around $10
million in services that were uncompensated and uncovered by the
contract, because the other party did not complete necessary
preparation work before construction. G4S at 727. The Supreme
Judicial Court held that the builder was barred from contractual
recovery because of material breaches of the contract's payment
terms, unrelated to the construction itself, but potentially
could recover under equitable theories for the $10 million extra
value provided. Id. at 723, 735. Thus, G4S is an example of,
not an exception to, the general requirement that a plaintiff
must identify services not covered by a valid contract to
proceed with a quantum meruit claim. G4S did not alter the
requirement that a plaintiff must identify value conferred
beyond the contract to sustain a quantum meruit claim. Here,
the plaintiff did not show at the motion to dismiss stage that
the exception contained in G4S applies.
2. Admission of expert testimony. The plaintiff also
argues that the trial judge abused her discretion by allowing
the defendants' expert witness to testify to the cost of repair,
5 the causes of the construction delay, and the causes of water
damage in the home. We are not persuaded that any of the
contested testimony was admitted erroneously.
The plaintiff does not challenge the qualifications of the
defendants' expert, who was the architect of record for the
project, and contends only that certain parts of the expert's
testimony restated hearsay from a non-expert or were too
speculative. The expert's cost analysis was admissible because
he testified to his own opinions, informed by his own
observations from working as the architect on the project and by
independently admissible cost calculations. See Department of
Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986). The
trial judge permitted the testimony after confirming prior to
trial that the expert had sufficient personal knowledge to
testify to the cost analysis and reaffirmed her ruling after
hearing his testimony at trial. The plaintiff's remaining
challenges to testimony regarding the causes of the construction
delay and water damage relate to the persuasiveness of the
expert's opinions rather than their admissibility. See
Commonwealth v. Hinds, 487 Mass. 212, 224 (2021) (judge's role
as gatekeeper is limited to assessing reliability of expert's
methods, not persuasiveness of conclusion). Because the expert
was qualified and the trial judge appropriately limited direct
examination based on his relevant experience, she did not abuse
6 discretion in admitting any of the expert's testimony. See id.
at 218.
3. Damages. Finally, the plaintiff challenges various
aspects of the jury's advisory verdict on damages, including
damages for delay, demanding payment for work not yet completed
as a condition of returning to the job, defective performance,
and failure to complete work. However, the jury's findings are
not before us on appeal, where we review the trial judge's
findings. See Exhibit Source, Inc. v. Wells Ave. Business Ctr.,
LLC., 94 Mass. App. Ct. 497, 500 (2018) (judge sets damages on
G. L. c. 93A claims and is not required to follow jury's damages
award on verdict slip). "Our review of the damages award is
highly deferential" and to overturn it, "'we would have to
determine that it was clearly excessive in relation to what the
plaintiff's evidence ha[d] demonstrated damages to be.'" K & K
Dev., Inc. v. Andrews, 103 Mass. App. Ct. 338, 351 (2023),
citing Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10 (2020).
Although the jury's findings may have informed the trial
judge's award, the specific $30,000 sum that the plaintiff
contests on appeal does not appear in the final award -- instead
the judge found that the evidence showed that it would cost
$90,000 to remediate defective work and an additional $17,500 to
reimburse expenditures attributable to delays in "getting back
into the house." The defendants are entitled to recover the
7 cost of making a structure conform to the contract. See Ficara
v. Belleau, 331 Mass. 80, 82 (1954).
The trial judge explicitly rejected the jury's advisory
finding on when or whether the plaintiff demanded advance
payments as a condition for returning to work. Moreover, the
trial judge ultimately reduced the award from the jury's
recommendation of $303,250 to $103,250 and supported her award
with an independent review of the proven damages. The plaintiff
also argues that the G. L. c. 93A award is analogous to breach
of contract damages and thus the remediation costs should be
offset by the amount remaining unpaid on the contract. See
Ficara, supra at 82-83 (damages due to unfinished construction
work limited to difference between amount plaintiff would have
paid under initial contract and amount plaintiff paid second
contractor to complete job). Because the G. L. c. 93A damages
stem from injuries beyond the failure to complete construction
and are not duplicative of contract damages (which were not
awarded), a contract-based offset was not necessary to avoid a
windfall to the defendants. See Kattar v. Demoulas, 433 Mass.
1, 13 (2000) (cause of action under G. L. c. 93A is not
dependent on traditional contract law concepts and analogies
between the two are inappropriate). Ultimately, we defer to the
judge's award because it was plainly valid under G. L. c. 93A
8 and well supported by the record. See Exhibit Source, Inc., 94
Mass. App. Ct. at 500.
4. Attorney's fees. The defendants have requested, and,
under G. L. c. 93A, are entitled to appellate attorney's fees.
The defendants are directed to submit an application for
appellate attorney's fees and costs, with any appropriate
supporting materials, to the clerk of this court within fourteen
days of the date of the rescript, pursuant to Fabre v. Walton,
441 Mass. 9 (2004). The plaintiff shall have ten days
thereafter to respond.
Judgment affirmed.
By the Court (Desmond, Hershfang & Brennan, JJ. 6),
Clerk
Entered: April 27, 2026.
6 The panelists are listed in order of seniority.