Preview
#16 Filed 5/5/2021
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, ss. SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action No.1975CV00002
JIBO & COMPANY, INC.,
Plaintiff
v.
RYAN A. DUDDY and ERICA D.
DUDDY,
Defendants
DEFENDANTS' MOTION IN LIMINE TO LIMIT THE
SCOPE OF PLAINTIFF’S EXPERT’S TESTIMONY
Defendants Ryan Duddy and Erica Duddy ("Defendants") respectfully request that this
Court preclude Plaintiff’s proposed expert witness, Michael Squier, from offering his opinion as
to anything beyond what is set forth in Plaintiff’s Expert Disclosure (the “Disclosure”). Such
limitation is extremely significant in this case because according to the Disclosure, Mr. Squier
will not testify as to the measure of damages available to Plaintiff under its quantum meruit
claim, to wit, the fair and reasonable value of the labor and materials provided by the Plaintiff for
the benefit of the Defendants, without markup for profits or overhead. A true and correct copy
of Plaintiff’s Expert Disclosure is attached hereto as Exhibit A.
Plaintiff’s sole category of damages in this case is what it claims to be owed under the
parties' contract (Count I) or under the quasi-contract theory of quantum meruit (Count II).
Under the law and facts of this case, these theories permit only two measures of damages: (1)
the measure provided for in the contract (either “time and materials” as alleged by Plaintiff,
or a flat fee of $55,000 as alleged by the Defendants); or (2) the fair value of the materials and
labor Plaintiff actually utilized, without markup or profit.
Discussion
This action arises out of a dispute regarding the roofing and siding work performed
by Plaintiff at 1 Monohansett Road, Nantucket, MA (the "Property"), a home owned by
Defendants. Plaintiff alleges that the Defendants owe him $93,889.50 pursuant to an
invoice issued pursuant to an alleged oral “time and materials” contract. A true and
correct copy of said Invoice is attached hereto as Exhibit B. This amount is in addition
to $11,466.35 that Defendant Ryan Duddy (“Duddy”) paid directly to a supplier for roofing and
siding materials used and incorporated into the project by Plaintiff, as well as an additional
$1,950.00 that Duddy paid to a replacement contractor to finish Plaintiff’s work after Plaintiff
walked off the job. Duddy denies that he ever agreed to pay Plaintiff on a “time and materials”
basis and instead contends that the parties agreed at the outset that Plaintiff would be paid a lump
sum of $55,000 to complete the job.
Plaintiff seeks damages under two alternative theories: Count I – Breach of Contract;
and Count II – Quantum Meruit. (Pl.'s Compl., Dkt No. 1). Under Massachusetts law, where
a binding contract exists, there can be no recovery in quantum meruit. Boswell v. Zephyr
Lines, Inc., 414 Mass. 241, 250 (1993) (“Recovery in quantum meruit presupposes no valid
contract covers the subject matter of a dispute. Where such a contract exists, the law need
not create a quantum meruit right to receive compensation for services rendered.”); Pullano
v. Cooke, 74 Mass.App.Ct. 1104 (2009), citing Boswell, 414 Mass. at 250 (The conceded
existence of a contract renders a claim for quantum meruit unavailable).
Thus, the first issue the Court will decide in this case is whether the parties had an
enforceable contract. It is axiomatic that to 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. Lambert v. Fleet Nat’l Bank, 449 Mass. 119,
125 (2007); Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000). Ordinarily the
question whether a contract has been made is one of fact,” unless the evidence “consists only of
writings, or is uncontradicted.” Situation Mgt. Sys.,Inc., 430 Mass. at 879; Incase, Inc. v. Timex,
488 F.3d 46 (1st Cir. 2007) (Whether meeting of the minds existed was a question for the finder
of fact). Where, as in this case, the terms of an oral agreement are in dispute, the finder of fact
determines the terms of any agreement “from the conversation of the parties and their conduct.”
Goldstein v. Katz, 325 Mass. 428, 430 (1950); Murphy v. Nelson, 306 Mass. 49, 50 (1940).
If after hearing all of the evidence in this case, the Court determines that an
enforceable contract was entered into, then the Court will determine the terms of that
contract and how much, if anything, Plaintiff is owed. Defendants understand that Plaintiff
intends to adjudicate its alleged damages under contract using its one invoice (Exhibit B) and
records produced in this case.
Only if the Court determines that there was not an enforceable contract between the
parties will the Court reach Count II of Plaintiff’s Complaint - Quantum Meruit. See
Lambert v. Fleet Nat’l Bank, 449 Mass. 119, 125 (2007) (No binding contract because proposal
which had no start or completion date, no payment schedule and only vague description of the
work was too vague and indefinite to be enforced, so recovery could only be had on quantum
meruit, not breach of contract). To recover under quantum meruit in a construction case, the
burden is on the contractor to prove both substantial performance and a good faith endeavor to
complete the work. G4S Technology v. Mass. Tech. Park, 479 Mass. 721, 735 (2018); Peabody
N.E., Inc. v. Marshfield, 426 Mass. 436, 442 (1998); J.A. Sullivan Corp. v. Commonwealth, 397
Mass. 789, 796 (1986). The measure of damages under a quantum meruit claim is “the fair and
reasonable value of material and labor supplied to the benefitting party.” G4S Technology, 479
Mass. at 735; J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 797 (1986). The
question of what is fair and reasonable compensation for services is a question of fact. J.A.
Sullivan Corp. 397 Mass. at 797. Quantum meruit calculations exclude lost profit or any
charges, such as overhead, that do not confer a benefit to the other party. See Incase Inc. v.
Timex Corp., 488 F.3d 46, 54 (1st Cir. 2007) (damages may not be based only upon lost
profits); Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436, 443 (l 998) (overhead
expenses "did not directly confer any value or benefit" and cannot be included in calculation of
quantum meruit); PDM Mechanical Contractors, Inc. v. Suffolk Construction, Inc., 35
Mass.App.Ct. 228, 237 (1993) (Having received the value of its labor and materials on its
quantum meruit count, Plaintiff sought to recover its lost profits on a 93A claim); Restatement
(Second) of Contracts § 344 cmt. a (1981) (calculation "includes neither the injured party's lost
profit nor that part of his expenditures in reliance that resulted in no benefit to the other party").
These principles limit Plaintiff’s potential quasi-contract damages to the fair and
reasonable value of the material and labor supplied that actually conferred a benefit to
Defendants, without any other markup or profits included. See Mass. Eye & Ear Infirmary
v. QLT Phototherapeutics, Inc., 552 F.3d 47, 67 (1st Cir. 2009). On the facts of this case, that
calculation is extremely straightforward - it is the amount that Plaintiff paid for the
materials and labor actually utilized, without markup or profit. See Fraser & Wise, P.C. v.
Primarily Primates, Inc., 966 F. Supp. 63, 78 (D. Mass. 1996).
Expert testimony may be considered on Plaintiff’s quantum meruit claim as to the
fair and reasonable value of the materials and labor Plaintiff supplied for the benefit of the
Defendants. However, according to its Expert Disclosure, Plaintiff does not intend to elicit
testimony from Mr. Squier as to the fair and reasonable value of the labor and materials
supplied by Plaintiff. Instead, Plaintiff intends to offer its expert, Michael Squier to testify
merely “as to the quantity of materials needed to construct the roofing and sidewall portions
of the Duddy residence and the accuracy of [Plaintiff’s invoice]”. See Exhibit A attached
hereto. The Disclosure states that Mr. Squier intends to testify to four specific things:
1. That Plaintiff’s use of 25 rolls of ice and water shield to cover the roof of the
Duddy residence as indicated on its Invoice appears accurate;
2. That the project required 340 bundles of shingles to cover the roof;
3. That a price of $88.00 per bundle of shingles is reasonable; and
4. That Plaintiff’s use of 34 squares of shingles to sidewall the project as indicated
on the Invoice appears accurate.
The Disclosure is most notable for the issues to which Mr. Squier will not testify.
Most significantly, the Disclosure fails to include any opinion as to the fair and reasonable
value of the labor and materials supplied by Plaintiff for the benefit of the Defendants. In
addition, the Disclosure fails to even mention anything about the reasonableness or accuracy
of the labor hours and/or labor rates included on the Invoice, nor does it set forth the hourly
rates Plaintiff paid its employees. More specifically, the Disclosure does not address:
• Whether it was fair and reasonable to charge Duddy 118 man hours at
$55 per hour to install ice & water shield on the project ($6,490);
• Whether it was fair and reasonable to charge Duddy $85 per bundle to
install 289 bundles of shingles ($24,565);
• Whether it was fair and reasonable to charge Duddy $6,902.50 to
install flashing;
• Whether it was fair and reasonable to charge Duddy $4,500 for EPDM
installation;
• Whether it was fair and reasonable to charge Duddy $450 per square to
install 34 square of siding ($15,300);
• Whether it was fair and reasonable to charge Duddy $25 per foot to
install 130 feet of cottage corners ($3,250);
• Whether it was fair and reasonable to charge Duddy $280 per square
for 9 square of siding ($2,520); or
• Whether any of the charges on Plaintiff’s Invoice contain markups for
overhead and/or profit.
WHEREFORE, Defendants respectfully request that Mr. Squier be precluded from
offering testimony at trial as to any areas beyond those detailed in Plaintiff’s expert
disclosure. Mass. R. Civ. P. 26 (b) (4)(A)(i) (Rules of civil procedure require a party disclose the
identity of each expected expert witness as well as “the substance of the facts and opinions to
which the expert is expected to testify and a summary of the grounds for each opinion.”; Mass.
R. Civ. P. 26 (e) (1)(B) (Rules also require supplementation of an expert interrogatory response if
there are any changes or additions).
Respectfully submitted,
RYAN A. DUDDY and ERICA D. DUDDY
By their attorneys,
GRIFFIN LAW LLC
_______________________________
Stephen P. Griffin (BBO# 563369)
224 Clarendon Street, Suite 32
Boston, MA 02116
(617) 266-9600 (phone)
spg@sgriffinlaw.com
CERTIFICATE OF SERVICE
I, Stephen P Griffin, do hereby certify that on the _5th__day of May, 2021, I served a
copy of the foregoing document to counsel of record by e-mail.
________________________
Stephen P. Griffin
EXHIBIT A
EXHIBIT B
Duddy 1
Preview
#16 Filed 5/5/2021 COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action No.1975CV00002 JIBO & COMPANY, INC., Plaintiff v. RYAN A. DUDDY and ERICA D. DUDDY, Defendants DEFENDANTS' MOTION IN LIMINE TO LIMIT THE SCOPE OF PLAINTIFF’S EXPERT’S TESTIMONY Defendants Ryan Duddy and Erica Duddy ("Defendants") respectfully request that this Court preclude Plaintiff’s proposed expert witness, Michael Squier, from offering his opinion as to anything beyond what is set forth in Plaintiff’s Expert Disclosure (the “Disclosure”). Such limitation is extremely significant in this case because according to the Disclosure, Mr. Squier will not testify as to the measure of damages available to Plaintiff under its quantum meruit claim, to wit, the fair and reasonable value of the labor and materials provided by the Plaintiff for the benefit of the Defendants, without markup for profits or overhead. A true and correct copy of Plaintiff’s Expert Disclosure is attached hereto as Exhibit A. Plaintiff’s sole category of damages in this case is what it claims to be owed under the parties' contract (Count I) or under the quasi-contract theory of quantum meruit (Count II). Under the law and facts of this case, these theories permit only two measures of damages: (1) the measure provided for in the contract (either “time and materials” as alleged by Plaintiff, or a flat fee of $55,000 as alleged by the Defendants); or (2) the fair value of the materials and labor Plaintiff actually utilized, without markup or profit. Discussion This action arises out of a dispute regarding the roofing and siding work performed by Plaintiff at 1 Monohansett Road, Nantucket, MA (the "Property"), a home owned by Defendants. Plaintiff alleges that the Defendants owe him $93,889.50 pursuant to an invoice issued pursuant to an alleged oral “time and materials” contract. A true and correct copy of said Invoice is attached hereto as Exhibit B. This amount is in addition to $11,466.35 that Defendant Ryan Duddy (“Duddy”) paid directly to a supplier for roofing and siding materials used and incorporated into the project by Plaintiff, as well as an additional $1,950.00 that Duddy paid to a replacement contractor to finish Plaintiff’s work after Plaintiff walked off the job. Duddy denies that he ever agreed to pay Plaintiff on a “time and materials” basis and instead contends that the parties agreed at the outset that Plaintiff would be paid a lump sum of $55,000 to complete the job. Plaintiff seeks damages under two alternative theories: Count I – Breach of Contract; and Count II – Quantum Meruit. (Pl.'s Compl., Dkt No. 1). Under Massachusetts law, where a binding contract exists, there can be no recovery in quantum meruit. Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 250 (1993) (“Recovery in quantum meruit presupposes no valid contract covers the subject matter of a dispute. Where such a contract exists, the law need not create a quantum meruit right to receive compensation for services rendered.”); Pullano v. Cooke, 74 Mass.App.Ct. 1104 (2009), citing Boswell, 414 Mass. at 250 (The conceded existence of a contract renders a claim for quantum meruit unavailable). Thus, the first issue the Court will decide in this case is whether the parties had an enforceable contract. It is axiomatic that to 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. Lambert v. Fleet Nat’l Bank, 449 Mass. 119, 125 (2007); Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000). Ordinarily the question whether a contract has been made is one of fact,” unless the evidence “consists only of writings, or is uncontradicted.” Situation Mgt. Sys.,Inc., 430 Mass. at 879; Incase, Inc. v. Timex, 488 F.3d 46 (1st Cir. 2007) (Whether meeting of the minds existed was a question for the finder of fact). Where, as in this case, the terms of an oral agreement are in dispute, the finder of fact determines the terms of any agreement “from the conversation of the parties and their conduct.” Goldstein v. Katz, 325 Mass. 428, 430 (1950); Murphy v. Nelson, 306 Mass. 49, 50 (1940). If after hearing all of the evidence in this case, the Court determines that an enforceable contract was entered into, then the Court will determine the terms of that contract and how much, if anything, Plaintiff is owed. Defendants understand that Plaintiff intends to adjudicate its alleged damages under contract using its one invoice (Exhibit B) and records produced in this case. Only if the Court determines that there was not an enforceable contract between the parties will the Court reach Count II of Plaintiff’s Complaint - Quantum Meruit. See Lambert v. Fleet Nat’l Bank, 449 Mass. 119, 125 (2007) (No binding contract because proposal which had no start or completion date, no payment schedule and only vague description of the work was too vague and indefinite to be enforced, so recovery could only be had on quantum meruit, not breach of contract). To recover under quantum meruit in a construction case, the burden is on the contractor to prove both substantial performance and a good faith endeavor to complete the work. G4S Technology v. Mass. Tech. Park, 479 Mass. 721, 735 (2018); Peabody N.E., Inc. v. Marshfield, 426 Mass. 436, 442 (1998); J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 796 (1986). The measure of damages under a quantum meruit claim is “the fair and reasonable value of material and labor supplied to the benefitting party.” G4S Technology, 479 Mass. at 735; J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 797 (1986). The question of what is fair and reasonable compensation for services is a question of fact. J.A. Sullivan Corp. 397 Mass. at 797. Quantum meruit calculations exclude lost profit or any charges, such as overhead, that do not confer a benefit to the other party. See Incase Inc. v. Timex Corp., 488 F.3d 46, 54 (1st Cir. 2007) (damages may not be based only upon lost profits); Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436, 443 (l 998) (overhead expenses "did not directly confer any value or benefit" and cannot be included in calculation of quantum meruit); PDM Mechanical Contractors, Inc. v. Suffolk Construction, Inc., 35 Mass.App.Ct. 228, 237 (1993) (Having received the value of its labor and materials on its quantum meruit count, Plaintiff sought to recover its lost profits on a 93A claim); Restatement (Second) of Contracts § 344 cmt. a (1981) (calculation "includes neither the injured party's lost profit nor that part of his expenditures in reliance that resulted in no benefit to the other party"). These principles limit Plaintiff’s potential quasi-contract damages to the fair and reasonable value of the material and labor supplied that actually conferred a benefit to Defendants, without any other markup or profits included. See Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 67 (1st Cir. 2009). On the facts of this case, that calculation is extremely straightforward - it is the amount that Plaintiff paid for the materials and labor actually utilized, without markup or profit. See Fraser & Wise, P.C. v. Primarily Primates, Inc., 966 F. Supp. 63, 78 (D. Mass. 1996). Expert testimony may be considered on Plaintiff’s quantum meruit claim as to the fair and reasonable value of the materials and labor Plaintiff supplied for the benefit of the Defendants. However, according to its Expert Disclosure, Plaintiff does not intend to elicit testimony from Mr. Squier as to the fair and reasonable value of the labor and materials supplied by Plaintiff. Instead, Plaintiff intends to offer its expert, Michael Squier to testify merely “as to the quantity of materials needed to construct the roofing and sidewall portions of the Duddy residence and the accuracy of [Plaintiff’s invoice]”. See Exhibit A attached hereto. The Disclosure states that Mr. Squier intends to testify to four specific things: 1. That Plaintiff’s use of 25 rolls of ice and water shield to cover the roof of the Duddy residence as indicated on its Invoice appears accurate; 2. That the project required 340 bundles of shingles to cover the roof; 3. That a price of $88.00 per bundle of shingles is reasonable; and 4. That Plaintiff’s use of 34 squares of shingles to sidewall the project as indicated on the Invoice appears accurate. The Disclosure is most notable for the issues to which Mr. Squier will not testify. Most significantly, the Disclosure fails to include any opinion as to the fair and reasonable value of the labor and materials supplied by Plaintiff for the benefit of the Defendants. In addition, the Disclosure fails to even mention anything about the reasonableness or accuracy of the labor hours and/or labor rates included on the Invoice, nor does it set forth the hourly rates Plaintiff paid its employees. More specifically, the Disclosure does not address: • Whether it was fair and reasonable to charge Duddy 118 man hours at $55 per hour to install ice & water shield on the project ($6,490); • Whether it was fair and reasonable to charge Duddy $85 per bundle to install 289 bundles of shingles ($24,565); • Whether it was fair and reasonable to charge Duddy $6,902.50 to install flashing; • Whether it was fair and reasonable to charge Duddy $4,500 for EPDM installation; • Whether it was fair and reasonable to charge Duddy $450 per square to install 34 square of siding ($15,300); • Whether it was fair and reasonable to charge Duddy $25 per foot to install 130 feet of cottage corners ($3,250); • Whether it was fair and reasonable to charge Duddy $280 per square for 9 square of siding ($2,520); or • Whether any of the charges on Plaintiff’s Invoice contain markups for overhead and/or profit. WHEREFORE, Defendants respectfully request that Mr. Squier be precluded from offering testimony at trial as to any areas beyond those detailed in Plaintiff’s expert disclosure. Mass. R. Civ. P. 26 (b) (4)(A)(i) (Rules of civil procedure require a party disclose the identity of each expected expert witness as well as “the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”; Mass. R. Civ. P. 26 (e) (1)(B) (Rules also require supplementation of an expert interrogatory response if there are any changes or additions). Respectfully submitted, RYAN A. DUDDY and ERICA D. DUDDY By their attorneys, GRIFFIN LAW LLC _______________________________ Stephen P. Griffin (BBO# 563369) 224 Clarendon Street, Suite 32 Boston, MA 02116 (617) 266-9600 (phone) spg@sgriffinlaw.com CERTIFICATE OF SERVICE I, Stephen P Griffin, do hereby certify that on the _5th__day of May, 2021, I served a copy of the foregoing document to counsel of record by e-mail. ________________________ Stephen P. Griffin EXHIBIT A EXHIBIT B Duddy 1