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Case Summaries

Public Construction Claims – Extra Work – Unforeseen Conditions

  • Davagian Grillo & Semple LLP is a leader in the field of prosecuting and defending public construction claims.
  • Manuel F. Spencer & Sons, Inc. v. Commonwealth, 16 Mass.App.Ct. 290 (1983): First case in Massachusetts interpreting “extra work” as used in M.G.L. c. 30, § 39F, the public works subcontractor direct payment statute from MDPW to the client for that extra work.
  • Bastianelli v. National Union Fire Inc. Co., 36 Mass.App.Ct. 367 (1994): Interpretation of M.G.L. c. 149, § 29, the public construction bond statute, finding that proof of actual notice is sufficient to meet the statutory requirement for formal “written” notice under the statute and circumstance of that case.
  • Sutton Corporation v. Metropolitan District Commission, 423 Mass. 200 (1992): First case in Massachusetts wherein the Supreme Judicial Court upheld a finding of a “type two changed condition” under M.G.L. c. 30, § 39N, and determined it to be actionable in Massachusetts. A type two changed condition under c. 30, §39N occurs when the contractor encounters an unforeseen condition that while not an unforeseen item or quantity of material, but an unforeseen circumstance that alters the way the work must be performed. The Court stated: “Where the actual subsurface conditions differ substantially from those conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the plans and contract documents… There is a changed condition under the meaning of the statute, whether or not the conditions differ from the contract specifications. Thus, contrary to the MDC’s assertions, the federal “type II” change condition is explicitly part of Massachusetts law…”
  • TLT Construction Corp. v. Commonwealth of Mass., Division of Capital Planning and Operations, Suffolk Superior Court C.A. No. 92-6572F (1999): Judgment obtained against the Commonwealth of Massachusetts for a general contractor, and in addition, judgment entered for sanctions against the Commonwealth under M.G.L. c. 231 § 6F for asserting bad faith, frivolous, and insubstantial defenses. The Court awarded 150% interest, legal fees, and costs, totaling approximately $1 million. The Court stated: “This court finds that the bulk of DCPO’s defenses were lacking in any factual support and were therefore, fully insubstantial, frivolous and not advanced in good faith.” The court’s decision increased the $2.8 million base judgment by approximately $1 million for added interest, attorney’s fees and costs.
  • On behalf of sub-subcontractor on public construction project, obtained favorable resolution of claims against defunct first-tier subcontractor and general contractor, securing payment from general contractor and first-tier subcontractor’s surety at mediation.
  • N.E.L. Corporation v. Massachusetts Highway Dept., Civil Action No. SUCV2000-01402: Represented a general contractor in an action against a public awarding authority for additional costs incurred as the result of differing site conditions and defective plans and specifications. The parties reached a negotiated settlement just prior to trial and the client recovered a substantial amount of its damages.
  • M.I.G. Corporation et al. v. Massachusetts Turnpike Authority, et. al., Civil Action No. MICV2002-00536: Represented a general contractor and its surety in an action against a public awarding authority to recover retainage owed and counterclaims of defective workmanship. The case was resolved through negotiation and the contractor recovered the amount owed in full.
  • David Sheridan d/b/a UWL Company v. BEC Electrical, Inc., Civil Action No. 2006-1166: Represented the plaintiff subcontractor in an action brought against the general contractor for a balance owed on a construction project for the city of Boston. The parties reached a negotiated settlement just prior to trial and the client recovered a substantial amount of its damages.
  • Suffolk Construction Co., Inc. and NER Construction Management, Inc .d/b/a Suffolk/NER Joint Venture v. Commonwealth of Massachusetts, Division of Capital Asset Management and Multiple Third Parties, Civil Action Nos.: SUCV2005-03631: Represented a national roofing subcontractor in a very complex action involving the general contractor, multiple subcontractors and a public awarding authority wherein the damages alleged on account of defective plans and specifications and differing site conditions for the John Adams Courthouse project in Boston exceed $50 million. The case involved over 60 depositions and coordination among multiple counsel representing the various parties. The case was mediated to a settlement.

Mechanic’s Liens and Contractors’ Claims on Private Construction Projects

  • Caron Building Corporation v. Permabit Technology Corporation, Middlesex Superior Court Civil Action No. 09-1296: On behalf of a general contractor left without a significant chance of recovery on a mechanic’s lien do to the underlying circumstances between a commercial tenant and a landlord after the performance of hundreds of thousands of dollars in build-out work, we secured a substantial bank account attachment against the commercial tenant on an ex-parte emergency motion which ultimately resulted in a very significant settlement for the general contractor without the need for long, drawn out litigation and trial process.
  • Magno S. Abreu d/b/a Prudential Services v. Dyson Development, LLC & 545 Newburyport, LLC, Civil Action No. ESCV2007-00247-B: Represented a subcontractor in an action against both the general contractor and developer of a condominium project for money due under a written agreement. Negotiated a recovery which included the past due amount plus interest, costs and attorneys’ fees.
  • Trace Construction v. Dana Barros Sports Complex LLC, 459 Mass. 346 (2011): Represented a subcontractor against an Owner in a matter of first impression before the Massachusetts Supreme Judicial Court regarding the effect of a mechanic’s lien on a leasehold interests.
  • On behalf of a trade subcontractor, briefed appeal resulting in reversal of Superior Court ruling that loss on multi-million dollar condominium project was subject to residential construction exclusion in the client’s general liability policy.
  • On behalf of general contractor, successfully opposed bankrupt and defaulted subcontractor’s motion for sanctions for alleged violation of the automatic stay for back-charging subcontractor after bankruptcy was filed. After extensive motion practice, obtained favorable resolution of subcontractor’s claims.

Government Investigations and Administrative Law

  • Fordyce v. Town of Hanover, 457 Mass. 248 (2010): Filed an Amicus Brief on behalf of an interested third-party which was ultimately followed by the Supreme Judicial Court concerning the definition of “fraud” and its application in the public construction arena.
  • TLT Construction Corp. v. Office of the Attorney General, Suffolk Superior Court Civil Action No. 07-05460: Successfully obtained Summary Judgment against the Attorney General of the Commonwealth of Massachusetts, vacating a bid protest decision which purported to find fraud by a general contractor as part of the Contractor’s bid filings under M.G.L. c. 149, §44D1/2.
  • On behalf of trade subcontractor performing significant public construction, and after two rounds of briefing and oral argument, successfully obtained injunction reversing the Massachusetts Attorney General’s debarment of client.
  • Briefed successful petition for direct appellate review and the subsequent appeal to Massachusetts Supreme Judicial Court, obtaining review of agency procedures on behalf of client accused of employee misclassification.
  • Briefed several injunction requests resulting in Massachusetts Superior Court prohibiting the Massachusetts Division of Capital Asset Management from denying a trade contractor certification to bid on public contracts.

Defense of Prevailing Wage, Overtime, and Minimum Wage Claims

  • Our office regularly handles the defense of employers against employee wage and hour claims, as well as the defense against Department of Labor and Attorney General investigations and citations.
  • On behalf of public contractor, briefed and argued motion for summary judgment resulting in dismissal of over $300,000.00 in Attorney General prevailing wage citations after securing favorable deposition testimony from head of the Massachusetts agency responsible for establishing prevailing wage rates and classifications.
  • Defended employer in prevailing wage and overtime class-action suit having approximately 100 claimants. After extensive discovery and defense of a motion for summary judgment, obtained a favorable pre-trial resolution at mediation.

Collections and Creditor’s Rights

  • Our office has represented dozens of equipment and material suppliers, subcontractors, and vendors in claims for nonpayment. We also defend contractors, developers, and property owners from spurious nonpayment claims.
  • Charles F. Caswell, Trustee of Caswell Realty Trust v. The J and K Trust, Civil Action No. MICV2005-03042: Represented private mortgage holder in a foreclosure action. Negotiated a settlement for the clients which included costs, interest and attorneys’ fees.
  • Charles Anthony Construction Company, Inc. v. Trenton Construction Corp. et al; ESCV2000-02111: Represented equipment supplier in an action against a contractor for amounts past due for rental of construction equipment. Obtained a judgment and execution for the rental charges plus interest, costs and attorneys’ fees.

Representation of Property Owners and Developers

  • On behalf of residential developer, obtained favorable resolution of home-buyer’s construction defect claims after extensive discovery and after briefing and arguing motions to exclude critical evidence on the eve of trial.
  • David Sabatini & Sons, Inc. v. John A. Davis, et al., Civil Action No. ESCV2002-0003: Took over the defense of the homeowners from other counsel after an adverse arbitration award in favor of the contractor. Negotiated a settlement through mediation wherein the architect paid a portion of the award to the contractor and the balance was extinguished.
  • James Tragakis and Susan O’Hara v. Angilly et al., Civil Action No. WOCV2005-00605: Represented plaintiff homeowners in an action brought against an engineer for a defective home inspection. The dispute was mediated to a substantial settlement in favor of the plaintiffs.
  • Defended corporation in suit brought by judgment creditor to reach real estate recently transferred by corporation. Succeeded in limiting the Plaintiff’s claim on a motion for summary judgment.

Public Utilities

  • Our office has represented contractors in numerous Department of Public Utilities proceedings as well as disputes between contractors and utility companies.
  • Verizon of New England, Inc. v. G. Donaldson Construction Co., et al.: Represented a subcontractor before an administrative panel on charges that it was responsible for in excess of $2.5 million in damages to communication lines. The matter was dismissed as to the client.

General Business Litigation

  • Our office represents businesses and individuals in shareholder disputes, non-compete litigation, unfair competition, and other general business litigation.
  • Peak Ventures, LLC et al. v. Kuehnle et al., Civil Action No. SUCV2007-03772-BLS: Took over the defense of multiple parties for the alleged violation of their fiduciary responsibilities in a case brought by multiple investors in an alternative energy company. The matter was resolved through negotiation with no damages being assessed and the case being dismissed with prejudice.
  • Atlantic Mechanical Contractors v. Vallance, Suffolk Superior Court Civil Action No. 12-4403 – Represented a client through trial and obtained a large judgment against a former commission-basis employee who had significantly overstated his performance in making weekly salary draw requests to the client.
  • On behalf of contractor that hired a competitor’s business development employee, obtained dismissal of former employer’s claims of breaches of non-compete agreement and duties of loyalty and confidentiality.

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