Preview
#19 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
DEF DANTS' PROPOSED LIN
Plaintiffs Complaint asserts two alternative theories of liability, breach of contract
(Count I) and the quasi-contract theory of guantum 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 parties’ 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.
COUNTI PLAINTIFF’S BREACH OF CONTRACT CLAIM MUST BE
DISMISSED BECAUSE IT HAS FAILED TO CARRY ITS
BURDEN OF ESTABLISHING AN ENFORCEABLE
CONTRACT BETWEEN THE PARTIES
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 (1 Cir. 2007)
(Whether meeting of the minds existed was a question for the finder of fact). A meeting of the
minds, or “mutuality” requires that the parties have the same terms and conditions in mind when
they entered into the contract. Situation Mgmt. Sys., Inc., 430 Mass. at 678. Ona breach of
contract claim, the Plaintiff must prove that the parties intended to agree to the contract’s terms.
Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010) (“An enforceable agreement
requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of
formation to be bound by those terms.”). 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).
Based on the evidence presented at trial, Plaintiff has failed to prove by a
preponderance of the evidence that an enforceable oral contract existed between the parties
as they never reached an agreement on material provisions of their contract. Rodriguez v.
M.B.T.A., 92 Mass.App.Ct. 26, 29 (2018). In particular, the Plaintiff failed to prove that the
parties agreed that Plaintiff would be paid on a “time and materials” basis.
Defendant Ryan A. Duddy credibly testified that his understanding of the parties’
agreement was that he would pay Plaintiffa flat fee of $55,000.00 to complete the project.
In addition, the evidence established that no agreement was reached between the parties as
to the price Defendants would be charged for labor, nor was there a start or completion date
and there was no payment schedule agreed upon. Because the evidence failed to establish
that the parties reached an agreement as to the material terms of the oral contract alleged by
the Plaintiff, Plaintiffs breach of contract must fail. ' 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); Simons v. American Dry Ginger Ale Co., 335 Mass. 521, 525-526 (1957)(There
must be agreement on the essential terms of the transaction in order that the nature and extent of
the parties' obligations can be determined and, hence, enforced); Nelsen v. Rebello, 26
Mass.App.Ct. 270, 272 (1988) (a contract requires a “meeting of the minds”)’.
Accordingly, Count I of Plaintiff's Complaint is dismissed, with prejudice.
COUNT II PLAINTIFF IS ENTITLED TO JUDGMENT ON COUNT II OF
ITS COMPLAINT IN THE AMOUNT OF $16,241.68
Because the Court has determined that there was no enforceable contract between
the parties, then the Court must analyze whether Plaintiff is entitled to recovery under
Count II of its Complaint, Quantum Meruit. See Lambert, 449 Mass. at 125 (2007)(Where no
binding contract existed between the parties, recovery could only be had on quantum meruit). 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); JA. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 796 (1986). While
' Should the Court determine that a valid and enforceable contract did exist between the parties, then 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 existence of a contract
renders a claim for guantum meruit unavailable).
? Should the Court find that an enforceable contract existed between the parties whereby Plaintiff would
complete the work for a flat fee, then Defendants are entitled to a set off against the contract price in the amount of
$13,416.35, the amount which Ryan Duddy paid for materials and to complete the project ($1 1,466.35 to Shepley
for materials and $1,950.00 to F&B Construction to complete the job).
Plaintiff
did not complete its work on the Duddy project, there is no dispute that it substantially
completed the project and that it stopped working only after the parties had a disagreement as to
the terms on which Defendants were to be billed by Plaintiff. Defendants likewise do not contest
that Plaintiff has met the “good faith” requirement for recovery under quantum meruit. Thus, the
only issue to analyze is what amount, if any, Plaintiff is owed under quantum meruit analysis.
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., 397 Mass. at 797 (1986). The question of what is fair and reasonable
compensation for services is a question of fact. Id.
Quantum meruit calculations exclude lost profit or any charges, such as profit and
overhead, that do not confer a benefit to the other party. See Incase Inc. v. Timex Corp., 488 F.3d
46, 54 (1" Cir. 2007)(damages may not be based only upon lost profits); Peabody N.E., Inc.,
426 Mass. at 443 (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 proves that it 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).
Plaintiff's expert, Michael Squier, did not testify as to the fair and reasonable value
of the labor or materials supplied by Plaintiff
and Plaintiff presented little credible evidence
on this issue. The only materials for which Plaintiff provided support of its cost was 299
bundles of Alaskan cedar shingles. “Order Confirmations” from Plaintiff's supplier
established that the cost to Plaintiff of the Alaskan cedar shingles was $16,241.68. However,
on its Invoice, Plaintiff charged Defendants $26,312.00 for these materials, a markup of
$10,070.32. Other than these shingles, there was no supporting documentation introduced by
the Plaintiff which established Plaintiff's cost for any of the materials charged to the
Defendants on Plaintiff's Invoice.
Plaintiff introduced no evidence to support the costs it incurred for the labor charges
on its invoice. Plaintiff provided no time sheets showing the date and hours allegedly
worked by Plaintiff's employees, nor did any of those employees testify. The cancelled
checks introduced by Plaintiff
did not identify how much of the payment was for work on
the Duddy project as opposed to other jobs.
Plaintiff also failed to present evidence as to the reasonableness of the labor hours
and/or rates included on Plaintiff's invoice. In addition, Plaintiff failed to present evidence
as to:
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
The amount of markups for overhead and/or profit contained in the
charges on Plaintiff's invoice.
Other than the $16,241.68 cost for cedar shingles, Plaintiff failed to present credible
evidence as to the fair and reasonable value of the labor and materials it supplied for the
benefit of the Defendants*. Accordingly, Judgment shall enter in favor of the Plaintiff on
Count II of its Complaint in the amount of $16,241.68.
COUNTERCLAIM IF THE COURT FINDS IN FAVOR OF
PLAINTIFF ON ITS BREACH OF CONTRACT
CLAIM, DEFENDANTS ARE ENTITLED TO
JUDGMENT ON THEIR COUNTERCLAIM IN
THE AMOUNT OF $13,416.35.
The Court has found that an enforceable oral contract existed between the parties
whereby Plaintiff agreed to complete the roofing and sidewall installation, including
provision of all materials, for a flat fee of $55,000.00. It is undisputed that Plaintiff
did not
> Should the Court determine that Plaintiff has established the fair and reasonable value of the project, without
markup for profit or overhead, then Defendants are entitled to a setoff against the value of the project in the amount
of $13,416.35, the amount which Ryan Duddy paid for materials and to a replacement contractor to complete the
project ($11,466.35 to Shepley for materials and $1,950.00 to F&B Construction) See G4S Technology LLC, 479
Mass. at 742 (recovery in quantum meruit must take into account the value of the project provided as compared to
the amounts paid by the defendant).
cis
complete the job and that Defendants paid a replacement contractor $1,950.00 to finish the
work which Plaintiff had promised to. It is also undisputed that Defendant was charged
$11,466.35 for materials ordered by Plaintiff through the project’s general contractor, Carl
Clarke. By failing to complete the work which it promised to perform and by having the
cost of certain materials paid for by the Defendants, Plaintiff breached its contract with the
Defendants and Defendants incurred damages in the amount of $13,416.35.
Accordingly, Defendants are entitled to judgment in their favor on their counterclaim
in the amount of $13,416.35.
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)
pe@sgriffinlaw.com
CERTIFICATE OF SERVICE
1, Stephen P Griffin, do hereby certify that on the __day of May, 2021, I served a copy
ofthe foregoing document to counsel of record by e-mail.
—
Stephen P. Griffin
Preview
#19 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 DEF DANTS' PROPOSED LIN Plaintiffs Complaint asserts two alternative theories of liability, breach of contract (Count I) and the quasi-contract theory of guantum 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 parties’ 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. COUNTI PLAINTIFF’S BREACH OF CONTRACT CLAIM MUST BE DISMISSED BECAUSE IT HAS FAILED TO CARRY ITS BURDEN OF ESTABLISHING AN ENFORCEABLE CONTRACT BETWEEN THE PARTIES 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 (1 Cir. 2007) (Whether meeting of the minds existed was a question for the finder of fact). A meeting of the minds, or “mutuality” requires that the parties have the same terms and conditions in mind when they entered into the contract. Situation Mgmt. Sys., Inc., 430 Mass. at 678. Ona breach of contract claim, the Plaintiff must prove that the parties intended to agree to the contract’s terms. Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010) (“An enforceable agreement requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms.”). 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). Based on the evidence presented at trial, Plaintiff has failed to prove by a preponderance of the evidence that an enforceable oral contract existed between the parties as they never reached an agreement on material provisions of their contract. Rodriguez v. M.B.T.A., 92 Mass.App.Ct. 26, 29 (2018). In particular, the Plaintiff failed to prove that the parties agreed that Plaintiff would be paid on a “time and materials” basis. Defendant Ryan A. Duddy credibly testified that his understanding of the parties’ agreement was that he would pay Plaintiffa flat fee of $55,000.00 to complete the project. In addition, the evidence established that no agreement was reached between the parties as to the price Defendants would be charged for labor, nor was there a start or completion date and there was no payment schedule agreed upon. Because the evidence failed to establish that the parties reached an agreement as to the material terms of the oral contract alleged by the Plaintiff, Plaintiffs breach of contract must fail. ' 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); Simons v. American Dry Ginger Ale Co., 335 Mass. 521, 525-526 (1957)(There must be agreement on the essential terms of the transaction in order that the nature and extent of the parties' obligations can be determined and, hence, enforced); Nelsen v. Rebello, 26 Mass.App.Ct. 270, 272 (1988) (a contract requires a “meeting of the minds”)’. Accordingly, Count I of Plaintiff's Complaint is dismissed, with prejudice. COUNT II PLAINTIFF IS ENTITLED TO JUDGMENT ON COUNT II OF ITS COMPLAINT IN THE AMOUNT OF $16,241.68 Because the Court has determined that there was no enforceable contract between the parties, then the Court must analyze whether Plaintiff is entitled to recovery under Count II of its Complaint, Quantum Meruit. See Lambert, 449 Mass. at 125 (2007)(Where no binding contract existed between the parties, recovery could only be had on quantum meruit). 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); JA. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 796 (1986). While ' Should the Court determine that a valid and enforceable contract did exist between the parties, then 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 existence of a contract renders a claim for guantum meruit unavailable). ? Should the Court find that an enforceable contract existed between the parties whereby Plaintiff would complete the work for a flat fee, then Defendants are entitled to a set off against the contract price in the amount of $13,416.35, the amount which Ryan Duddy paid for materials and to complete the project ($1 1,466.35 to Shepley for materials and $1,950.00 to F&B Construction to complete the job). Plaintiff did not complete its work on the Duddy project, there is no dispute that it substantially completed the project and that it stopped working only after the parties had a disagreement as to the terms on which Defendants were to be billed by Plaintiff. Defendants likewise do not contest that Plaintiff has met the “good faith” requirement for recovery under quantum meruit. Thus, the only issue to analyze is what amount, if any, Plaintiff is owed under quantum meruit analysis. 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., 397 Mass. at 797 (1986). The question of what is fair and reasonable compensation for services is a question of fact. Id. Quantum meruit calculations exclude lost profit or any charges, such as profit and overhead, that do not confer a benefit to the other party. See Incase Inc. v. Timex Corp., 488 F.3d 46, 54 (1" Cir. 2007)(damages may not be based only upon lost profits); Peabody N.E., Inc., 426 Mass. at 443 (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 proves that it 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). Plaintiff's expert, Michael Squier, did not testify as to the fair and reasonable value of the labor or materials supplied by Plaintiff and Plaintiff presented little credible evidence on this issue. The only materials for which Plaintiff provided support of its cost was 299 bundles of Alaskan cedar shingles. “Order Confirmations” from Plaintiff's supplier established that the cost to Plaintiff of the Alaskan cedar shingles was $16,241.68. However, on its Invoice, Plaintiff charged Defendants $26,312.00 for these materials, a markup of $10,070.32. Other than these shingles, there was no supporting documentation introduced by the Plaintiff which established Plaintiff's cost for any of the materials charged to the Defendants on Plaintiff's Invoice. Plaintiff introduced no evidence to support the costs it incurred for the labor charges on its invoice. Plaintiff provided no time sheets showing the date and hours allegedly worked by Plaintiff's employees, nor did any of those employees testify. The cancelled checks introduced by Plaintiff did not identify how much of the payment was for work on the Duddy project as opposed to other jobs. Plaintiff also failed to present evidence as to the reasonableness of the labor hours and/or rates included on Plaintiff's invoice. In addition, Plaintiff failed to present evidence as to: 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 The amount of markups for overhead and/or profit contained in the charges on Plaintiff's invoice. Other than the $16,241.68 cost for cedar shingles, Plaintiff failed to present credible evidence as to the fair and reasonable value of the labor and materials it supplied for the benefit of the Defendants*. Accordingly, Judgment shall enter in favor of the Plaintiff on Count II of its Complaint in the amount of $16,241.68. COUNTERCLAIM IF THE COURT FINDS IN FAVOR OF PLAINTIFF ON ITS BREACH OF CONTRACT CLAIM, DEFENDANTS ARE ENTITLED TO JUDGMENT ON THEIR COUNTERCLAIM IN THE AMOUNT OF $13,416.35. The Court has found that an enforceable oral contract existed between the parties whereby Plaintiff agreed to complete the roofing and sidewall installation, including provision of all materials, for a flat fee of $55,000.00. It is undisputed that Plaintiff did not > Should the Court determine that Plaintiff has established the fair and reasonable value of the project, without markup for profit or overhead, then Defendants are entitled to a setoff against the value of the project in the amount of $13,416.35, the amount which Ryan Duddy paid for materials and to a replacement contractor to complete the project ($11,466.35 to Shepley for materials and $1,950.00 to F&B Construction) See G4S Technology LLC, 479 Mass. at 742 (recovery in quantum meruit must take into account the value of the project provided as compared to the amounts paid by the defendant). cis complete the job and that Defendants paid a replacement contractor $1,950.00 to finish the work which Plaintiff had promised to. It is also undisputed that Defendant was charged $11,466.35 for materials ordered by Plaintiff through the project’s general contractor, Carl Clarke. By failing to complete the work which it promised to perform and by having the cost of certain materials paid for by the Defendants, Plaintiff breached its contract with the Defendants and Defendants incurred damages in the amount of $13,416.35. Accordingly, Defendants are entitled to judgment in their favor on their counterclaim in the amount of $13,416.35. 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) pe@sgriffinlaw.com CERTIFICATE OF SERVICE 1, Stephen P Griffin, do hereby certify that on the __day of May, 2021, I served a copy ofthe foregoing document to counsel of record by e-mail. — Stephen P. Griffin