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-1386
RIVERVIEW CONSTRUCTORS, LLC
vs.
RCS LEARNING CENTER, INC., & others1 (and a consolidated case2).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This construction dispute originated in a failed real
estate deal by which defendants RCS Learning Center, Inc. and
RCS, Behavioral and Educational Consulting LLC (collectively,
RCS) planned to purchase adjacent parcels of land in Framingham
(the property) from defendants Northside LLC and Ann B. Pratt,
1RCS, Behavioral and Educational Consulting LLC; Northside LLC; and Ann B. Pratt, trustee of the Nobscot Realty Trust; and trustee defendants Brookline Bank, Commerce Bank & Trust Co., Middlesex Savings Bank, and Santander Bank, N.A. The trustee defendants did not file a brief in this appeal.
2Maine Drilling & Blasting, Inc. vs. Riverview Constructors, LLC; RCS Learning Center, Inc.; RCS, Behavioral and Educational Consulting LLC; Northside LLC; and Ann B. Pratt, trustee of the Nobscot Realty Trust. trustee of the Nobscot Realty Trust (collectively, Nobscot).
Before RCS and Nobscot consummated that transaction, RCS
contracted, with Nobscot's written consent, for plaintiff
Riverview Constructors, LLC (Riverview), to build a school on
the property. After Riverview and a subcontractor, Maine
Drilling & Blasting, Inc. (Maine Drilling), performed work, the
defendants' real estate deal fell apart, leading to this and
other litigation.3 Riverview filed suit in Superior Court
against RCS for breach of contract and related claims, and
against Nobscot to enforce its mechanic's lien on the property.4
Maine Drilling filed suit against Riverview, RCS, and Nobscot to
enforce its mechanic's lien on the property.5
The cases were consolidated for a jury trial.6 The jury
returned a special verdict finding RCS in breach of a written
3 See Ria K. McNamara, Inc. v. Pratt, 104 Mass. App. Ct. 1118 (2024); RCS Learning Ctr., Inc. v. Pratt, 103 Mass. App. Ct. 1118 (2024).
4 Riverview also sought trustee process against four banks holding RCS assets. Three of those banks deposited funds into court, but the banks did not otherwise participate in the litigation.
5 Maine Drilling also brought contract and related claims against Riverview, and claims against Riverview and RCS for violations of G. L. c. 93A and the prompt payment law, G. L. c. 149, § 29E. Those claims settled before trial.
6 Riverview's claims against RCS for violation of G. L. c. 93A and for fraudulent transfer of funds were bifurcated before trial. Ultimately the judge found for RCS on those claims. The issues raised by those findings are not before us.
2 contract for $1.6 million and the corresponding covenant of good
faith and fair dealing, causing Riverview damages of $530,190;
and in breach of an implied contract for work pursuant to a
change order, for which Riverview was entitled to recover
$149,000 in quantum meruit. Judgment entered for Riverview.
RCS filed motions for a new trial and for judgment
notwithstanding the verdict, arguing that Riverview did not
prove the existence of a contract for $1.6 million or RCS's
breach of that contract, Riverview failed to plead and prove
damages, and the judge erred in instructing the jury on damages.
Nobscot moved for discharge of the mechanic's liens of Riverview
and Maine Drilling, arguing that neither had a written contract
with Nobscot, and alternatively that any contract between
Riverview and Nobscot was limited to a contract price of
$84,500. The judge denied the postjudgment motions. RCS and
Nobscot appeal, making those same contentions. We affirm.
Discussion. 1. Sufficiency of evidence of contract. RCS
and Nobscot challenge the sufficiency of the evidence underlying
Riverview's contract claims.
a. Scope of contract. RCS and Nobscot argue that any
contract between RCS and Riverview permitted Riverview to
perform only $84,500 worth of work and not the entire $1.6
million contract price.
3 In June 2016, Riverview sent RCS a site work proposal
listing thirty-three categories of work it would perform to
build the school on the property. The proposal specified that
Riverview's "Total Base Bid" was in the amount of $1.6 million.
RCS's project manager Peter Cullinan drafted a "letter of
intent to contract " (letter of intent) that incorporated by
reference Riverview's proposal. Cullinan did not draft a formal
contract because RCS did not have financing in place and, as the
letter of intent stated, "final value engineering and
construction details remain to be resolved." On August 17,
2016, principals for RCS, Nobscot, and Riverview signed the
letter of intent. The letter of intent stated that, "with the
consent of [Nobscot]," RCS was authorizing Riverview to start
building the school by performing the first six items listed on
Riverview's proposal, not to exceed a cost of $84,500. The
letter of intent stated, "Work is to be initiated as soon as
possible, and if the project is placed on hold for reasons not
in [Riverview]'s control, [it] shall be compensated for the
costs [it] has incurred to the point of stoppage."
Riverview began work in August 2016, and submitted monthly
applications for payment to RCS. Each of Riverview's payment
applications stated that the "ORIGINAL CONTRACT SUM" was $1.6
million. For several months, RCS paid Riverview promptly. By
the end of October, the total amount that Riverview had billed
4 and RCS had paid was more than twice the $84,500 amount set
forth in the letter of intent. Cullinan testified that the work
continued beyond the scope of the first six items listed on the
letter of intent because "RCS wanted to continue to proceed."
RCS's president, Denise Rizzo-Ranieri, testified that RCS paid
Riverview because RCS had agreed to the payments and wanted to
"make good" on the work Riverview had done, with which she was
content.
The scope of the parties' agreement was a question of fact
for the jury. See Situation Mgt. Sys., Inc. v. Malouf, Inc.,
430 Mass. 875, 879 (2000). The letter of intent signed by
principals for RCS, Nobscot, and Riverview sufficed to establish
a meeting of the minds on the material terms of the contract.
The letter of intent stated that Riverview was authorized "to
initiate the development of the Project," a term defined earlier
in the letter to mean the building of the entire school. See
Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 215
(2018) (mutual assent occurs where there is offer by one party
and acceptance by other "in the terms in which [the offer] is
made" [citation omitted]). The jury was not required to believe
that RCS and Nobscot only agreed to six items of work at a cost
of $84,500, especially because RCS paid Riverview far more than
that amount, on invoices referencing $1.6 million as the
"ORIGINAL CONTRACT SUM." The jury could find that, by their
5 course of conduct, the parties excused the failure to execute a
formal contract as contemplated by the letter of intent. See
Situation Mgt. Sys., Inc., supra at 878-879; Prism Group, Inc.
v. Slingshot Tech. Corp., 104 Mass. App. Ct. 785, 796 n.7
(2024).
b. Maine Drilling's blasting work. Riverview's proposal,
which was incorporated by reference into the letter of intent,
listed an alternate task, "Drill Blast & Remove Ledge Boulders,"
for the amount of $343,062 that was included within the $1.6
million contract price. [In late September 2016, RCS authorized
that blasting work. Riverview subcontracted the blasting to
Maine Drilling, which performed that work between December 2016
and early March 2017. The parties stipulated that Riverview and
Maine Drilling's subcontract was worth $285,973.14, of which
Riverview had paid $28,000, leaving a balance of $257,973.14.
RCS's president testified that RCS "agreed to do the
blasting" and that she knew that Maine Drilling was performing
that work. The letter of intent signed by principals for both
RCS and Nobscot incorporated by reference Riverview's proposal
describing the drilling and blasting work. Nobscot never
questioned why blasting work was being done on its property.
Based on the evidence, the jury could have found that RCS
authorized Riverview to subcontract Maine Drilling's work. To
prove that Nobscot consented to Maine Drilling's work,
6 "something more than awareness of an intent to perform work, or
awareness of ongoing work, and a failure to object" was
required. Trace Constr., Inc. v. Dana Barros Sports Complex,
LLC, 459 Mass. 346, 355 (2011). As discussed above, the jury
could interpret the letter of intent to mean that RCS and
Nobscot agreed to Riverview's entire proposal, and not just the
first six items.
c. Change order. RCS argues that there was insufficient
evidence to support the jury verdict for an implied contract for
$149,000 arising from a change order. RCS contends that it did
not approve the change order, and alternatively that Riverview
waived its right to payment.
Riverview's principal, Bruce Ross (Ross), testified that in
January 2017, RCS informed Riverview of changes to the plans
necessitated by issues including zoning requirements. Riverview
performed that additional work and submitted a change order in
the amount of $149,070, but RCS did not pay it. Based on that
evidence, the jury had ample basis to conclude that RCS did in
fact approve that work and then breached the implied contract.
As for RCS's claim that Riverview waived its right to
payment under the change order by accepting late payments on its
invoices for November and December 2016 and by delaying in
submitting an invoice for the change order, it is unavailing.
Ross testified that, after he learned that RCS was having
7 problems obtaining financing, he did not demand prompt payment
from RCS but he still expected RCS to pay Riverview. "Mere
acceptance of a partial payment of monies owed under a contract
does not waive the entitlement to the full amount due." Prism
Group, Inc., 104 Mass. App. Ct. at 791.
2. Damages. a. Pleading requirement. RCS argues that
lost profits are special damages that Riverview was required to
allege in its complaint, and RCS was unfairly surprised when it
learned from the joint pretrial memorandum filed shortly before
trial that Riverview was seeking its lost profits. We are not
persuaded.
In its complaint, Riverview alleged that, but for RCS's
breach, Riverview would have received $1.6 million plus $149,070
for the change order. As discussed below, Ross explained at
trial that Riverview's profit was subsumed in the $1.6 million
contract price. As required by the mechanic's lien statute,
G. L. c. 254, § 5, the complaint alleged that the outstanding
balance due on the contract was $552,195.7 Contrary to RCS's
argument, the allegation of the outstanding balance was not an
impermissible "ad damnum" because it was "ascertainable by
calculation" and supported by the sworn statement of Riverview's
7 The complaint alleged that $991,750 was the value of the work that Riverview had performed on the contract and the change order, minus the $439,375 RCS had paid, equaling $552,195.
8 manager. G. L. c. 231, § 13B. Contrast Friedman v. Globe
Newspaper Co., 38 Mass. App. Ct. 923, 924 (1995) (within judge's
discretion to dismiss libel complaint alleging damages which
were neither liquidated nor ascertainable by calculation).
b. Ross's testimony about Riverview's anticipated profit.
RCS moved in limine to preclude Riverview from presenting
evidence of its "lost profits," arguing that those were
"special" damages that Riverview was required to specifically
plead pursuant to Mass. R. Civ. P. 9 (g), 365 Mass. 751 (1974).
The judge denied the motion. RCS contends that the judge erred
in permitting Ross to testify about Riverview's anticipated
profits, those damages were speculative, and Riverview was
required to present expert testimony to support them.
Ross, who had worked in the construction industry for
forty-eight years, testified that the $1.6 million contract
amount included fifteen percent for Riverview's profit, i.e.,
$240,000, because profit was Ross's purpose in running a
business and that was what he anticipated making on the project.
"The basic principle of contract damages is that the
aggrieved party should be put in as good a position as if the
other party had fully performed." Laurin v. DeCarolis Const.
Co., 372 Mass. 688, 691 (1977). As to breach of a construction
contract, damages "may include . . . anticipated profits."
Lawrence v. Falzarano, 380 Mass. 18, 28 (1980). See Situation
9 Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 880 (2000)
("award of 'expectancy' damages may include lost profits"). See
generally Restatement (2nd) Contracts § 346 (2024). Ross's
testimony about Riverview's anticipated profit was not
speculative and did not require testimony of a witness with any
expertise beyond his. Contrast LightLab Imaging, Inc. v. Axsun
Technologies, Inc., 469 Mass. 181, 191 (2014) (plaintiff's
expert's opinion on lost profits damages was based on "dubious
assumption about brand loyalty" and thus speculative).
Riverview's anticipated profits were not "special" damages
within the meaning of Rule 9 (g), because they "necessarily
ar[o]se from the act complained of" (citation omitted).
Reporter's Notes to Rule 9 (g), Mass. Rules of Court, Rules of
Civil Procedure, at 22-23 (Thomson Reuters 2024). RCS misplaces
its reliance on Anthony's Pier Four, Inc. v. HBC Assocs., 411
Mass. 451, 479 (1991), which referred to lost profits as
"special damages" in the context of describing that appellant's
argument that "in this case lost profits are too speculative and
too remote a measure of damages."
c. Jury instruction on damages. RCS contends that the
judge erred in instructing the jury on damages. RCS requested a
jury instruction that Riverview was not entitled to recover
expectancy damages or lost profits. The judge denied the
request.
10 The judge instructed the jury to determine Riverview's lost
profits as follows:
"First, you determine the parties' agreed contract price. Next, you determine how much, if any, payment RCS Learning Center made. Third, you determine what labor or material costs or other expenses Riverview Constructors LLC would have had to pay in order to complete its obligation under the contract. Finally, you calculate the amount of lost profit. To do this, you take the agreed contract price and then subtract the amount RCS Learning Center paid and any labor or material costs or other expenses that Riverview Constructors LLC would have had to pay in order to complete its end of the contract. The result is Riverview Constructors LLC's lost profit."
That language tracked that of the Superior Court's model jury
instruction on lost profits in contract cases. See Superior
Court Model Jury Instructions on Contract Damages and Other
Special Contract Issues, 10-11 (Aug. 2021).
The instruction on lost profits conveyed "the proper legal
standard." Luppold v. Hanlon, 495 Mass. 148, 159 n.11 (2025)
("Instructions that convey the proper legal standard,
particularly when tracking model jury instructions, are deemed
correct" [citation omitted]). As the judge explained, contract
damages are determined by calculating the damage to the
plaintiff from the defendant's breach. See 477 Harrison Ave.,
LLC v. JACE Boston, LLC, 483 Mass. 514, 523 (2019).
c. Amount of damages. RCS argues that the judge erred in
denying its motion for a new trial on the grounds that the jury
award of $530,190 in damages to Riverview was excessive. "[T]he
11 allowance of a motion for a new trial based upon an inadequate
or excessive award of damages, and the direction of an addition
or remittitur, rests in the sound discretion of the judge."
Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 (2009),
quoting Blake v. Commissioner of Correction, 403 Mass. 764, 771
(1989). We apply a "highly deferential" standard in assessing
the evidence supporting a jury's award of damages and will
overturn such an award only if it is "clearly excessive in
relation to what the plaintiff's evidence ha[d] demonstrated
damages to be." Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10
(2020), quoting Ayash v. Dana-Farber Cancer Inst., 443 Mass.
367, 404, cert. denied sub nom. Globe Newspaper Co. v. Ayash,
546 U.S. 927 (2005).
We conclude that the judge acted within her sound
discretion in denying the motion for a new trial. We note that
the jury award was less than the $552,195 alleged in Riverview's
complaint as the balance due on the contract. The jury had
before it ample evidence to support the award, including
Riverview's invoices.
3. Mechanic's liens. Nobscot contends that the judge
erred in denying its motions for discharge of Riverview's and
Maine Drilling's mechanic's liens.
A mechanic's lien is a "creature of statute, which compels
strict compliance in order to obtain relief" (quotation and
12 citation omitted). Bruno v. Alliance Rental Group, LLC, 103
Mass. App. Ct. 170, 174-175 (2023). To obtain relief,
Riverview, as contractor, was required to record in the registry
of deeds notice that it had a written construction contract with
either the property owner, i.e., Nobscot, "or with any person
acting . . . with the consent of such owner," i.e., RCS. G. L.
c. 254, § 2. See Trace Constr., Inc., 459 Mass. at 352 ("a
contractor can establish a valid lien on a property interest
when he or she contracts with a person acting with the consent
of the owner of that property interest"). In May 2017,
Riverview recorded its notice of contract. Riverview's notice
of contract stated that its mechanic's lien was "by virtue of a
written contract dated August 17, 2016," i.e., the letter of
intent signed by RCS, Nobscot, and Riverview.
Nobscot argues that there was insufficient evidence that
Riverview had a contract with Nobscot. In denying the motion
for discharge of Riverview's mechanic's lien, the judge
concluded that "Nobscot participated in the creation and
execution of the written letter of intent, which, when
considered along with the series of other writings including the
June 2016 proposal, invoices, and checks, formed the basis upon
which the jury found that a valid and binding contract existed
between the parties in the present actions." See Brewster
Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.
13 App. Ct. 582, 600 (2007) (multiple writings read together
constituted contract satisfying Statute of Frauds).
As to Maine Drilling's subcontractor mechanic's lien, Maine
Drilling was required to record in the registry of deeds notice
that it furnished labor, equipment, and construction services
"under a written contract with a contractor," i.e., Riverview;
upon giving actual notice of that filing to the property owner,
Maine Drilling "shall have a lien upon" the property "owned by
the party who entered into the original contract." G. L.
c. 254, § 4. In May 2017, Maine Drilling recorded its notice of
contract, of which it sent copies to RCS and Nobscot.
Nobscot argues that because Maine Drilling's subcontractor
mechanic's lien was derived from Riverview's contract with RCS,
that lien was extinguished when the real estate deal between RCS
and Nobscot fell apart. The argument is unavailing, because, as
the jury found, Nobscot was also a party to the contract
documented in the letter of intent. Contrast Trace Constr.,
Inc., 459 Mass. at 356-357 (where property owner was not party
to contract between tenant and contractor, G. L. c. 254, § 4 did
not permit mechanic's lien for subcontractor). In those
circumstances, as the judge put it, "Maine Drilling is only
required to have a written contract with Riverview in order to
maintain its mechanic's lien on the property, which it does."
14 See Business Interiors Floor Covering Business Trust v. Graycor
Constr. Co., 494 Mass. 216, 224-225 (2024).
We discern no error or abuse of discretion in the judge's
denial of Nobscot's motion for discharge of the mechanic's liens
of Riverview and Maine Drilling.
Judgment affirmed.
Orders dated September 19, 2023, denying motions for judgment notwithstanding the verdict, for a new trial, and for discharge of mechanic's liens, affirmed.
By the Court (Blake, C.J., Neyman & Grant, JJ.8),
Clerk
Entered: March 18, 2025.
8 The panelists are listed in order of seniority.