CORWIN & CORWIN LLP: Appellate Decisions

Appellate Decisions

Corwin & Corwin LLP has briefed and argued over 100 appellate decisions. Corwin & Corwin LLP participated in these cases either as the lead attorney for one of the parties or as an amicus curiae. The following is a chronological listing of the appellate cases. Citations with a single asterisk (*) are cases in which Corwin & Corwin LLP participated as an amicus curiae; citations with a double asterisk (**) are memoranda decisions of the Appeals Court pursuant to Rule 1.28 some of which are published. Click here to view a chronological index.

A - D | E - I | J - M | N - R | S - Z

A - D

Acme Plastering Co., Inc. v. Boston Housing Authority 21 Mass. App. Ct. 669 (1986)

Contractor's good faith effort to fully perform contract warrented recovery in quantum meruit. Statutory penalty interest not applied to quantum meruit recovery.

Acme Plastering Co., Inc. v. Boston Housing Authority 25 Mass. App. Ct. 985 (1988)

Denial of re-hearing of further appellate review is a discretionary ruling and not a statement of the court's position on the issue raised. Contractor entitled to pre-judgment interest against public authority.

Admiral Drywall Inc. v. Cullen,
56 F.3d 4 (1^st Cir. 06/08/1995)

Contractor's bankruptcy trustee given priority in retained funds ahead of subcontractors who built the Project.

A.J. Wolfe Co. v. Baltimore Contractors, Inc. 355 Mass. 361 (1969)

Subcontractor entitled to payment even though contractor not paid by Owner.

American Air Filter Co. v. Innamorati Bros. Inc. 358 Mass. 146 (1970)

Statutory payment bond construed broadly to secure payment due subcontractors and suppliers on public projects.

Armor Elevator Co. v. Phoenix Urban Corp. 655 F.2d 19 (1^st Cir. 1981)

Unpaid subcontractor's claim directly against HUD dismissed for lack of jurisdiction.

Associated Subcontractors of Massachusetts, Inc.; Montle Plumbing & Heating Co.; Norfolk Electric, Inc.; and Apex Corporation v. University of Massachusetts Building Authority and University of Massachusetts, 442 Mass. 159, 810 N.E.2d 1214 (2004)

University of Massachusetts Building Authority enabling act exempted the Authority from application of c. 149, §§44A-H bidding provisions where at least 50% of building funds were from non-governmental source.

**A. Susi Construction Company v. M. Susi & Sons 36 Mass. App. Ct. 1122 (1994)

Discontinuance of public way.

B.J. Harland Elec. Co., Inc. v. Granger Bros., Inc. 24 Mass. App. Ct. 506 (1987)

Contract provision barring delay damage on public job held to bar subcontractor's recovery of increased costs caused by contractor's breach of statutory obligation to provide heat.

Blackett v. Olanoff 371 Mass. 714 (1977)

Deprivation of quiet enjoyment ruled a constructive eviction.

*Brisk Waterproofing Co. v. Director of Division of Bldg. Const. 338 Mass. 784 (1958)

Awarding authority empowered to reject single available sub-bid on deciding the price was not reasonable for acceptance

Chiappisi v. Granger Contracting Co. 352 Mass. 174 (1967)

Subcontractor's failure to provide contract notice barred extra work claim.

Chicopee Concrete Service, Inc. v. Hart Engineering Co.
20 Mass. App. Ct. 315
Aff'd - 398 Mass. 476 (1986)

Subcontractor awarded lost profits where provision contractor relied on to terminate was not incorporated into subcontract.

City of Worcester v. Park Const. Co. 361 Mass. 879 (1972)

Long delay in arbitration selection did not waive arbitration.

Commissioner of Labor and Industries v. Lawrence Housing Authority 358 Mass. 202 (1970)

Public contract award under federal turn-key housing plan held not to violate state bid laws.

Consolidated Petroleum Corp. v. Golosov 14 Mass. App. Ct. 1031 (1982)

Broker commission conditioned on loan approval not due when loan disapproved.

Crane Co. v. Park Const. Co.
356 Mass. 13. (1969)

Certificate of payment signed by unpaid supplier barred later action on contractor's payment bond.

C&H Masonry, Inc. v. George Gould Trustee Of Nagog Knoll Realty Trust, Rose Gould, Trustee Of Nagog Knoll Realty Trust and Donelan's Supermarkets, Inc.

Subcontractor could only lien the leasehold interest where lessee entered into contract with general contractor and subcontractor's lien had no value since general contractor abandoned project and there was nothing due or to become due at the time the notice of contract was filed.

Danca Corp. v. Raytheon Co. 28 Mass. App. Ct. 942 (1990)

Default of surety concedes only surety defenses.

Davis Associates Inc. v. Secretary 498 F.2d 385 (1^st Cir. 1974)

Low bidder rejected on recommendation of HEW denied right of judicial renew under the Administrative Procedure Act.

Department of Labor and Industries v. Boston Water and Sewer Com. 18 Mass. App. Ct. 621 (1984)

Penny bidding on unit price portion of bid does not require rejection of bid.

**Dependable Masonry Construction Co. v. Saturn Construction Co. 37 Mass. App. Ct. 1102 (1994)

Extra work claims awarded subcontractor on c.149, §29 bond plus legal fees.

Dominic Gentile Painting Co., Inc. v. The Aulson Co., Inc., 2000 Mass. App. Div. 19, (2000)

Subcontract not entitled to additional compensation since claimed extra work was required by subcontract.

Drywall Systems, Inc. v. ZVI Construction Co., Inc., 51 Mass. App. Ct. 353 (2001)

Arbitrators have the power to award a subcontractor treble damages under c. 93A, §11 for unfair and deceptive acts of the general contractor, but not legal fees.

Drywall Systems, Inc. v. ZVI Construction Co., Inc., 435 Mass. 664 (2002)

On further appellate review, the Supreme Judicial Court ruled that arbitrators, acting under a broad arbitration agreement, had the power to award a subcontractor both multiple damages and legal fees under c. 93A,§11 against a general contractor who acted unfairly.

E - I

E.A. Berman Co., v. City of Marlborough 11 Mass. App. Ct. 1009 (1981)

Subcontractor entitled to substitution of equal material.

*East Coast Steel Erectors, Inc. v. Ciolfi
417 Mass. 602 (1994)

Mechanic's lien ruled enforceable.

Edward F. Zaniboni d/b/a Zander Corporation v. J.S. Luiz, Third, Inc. and United States Fidelity & Guaranty Company, 60 Mass. App. Ct. 1110 (2003)

General contractor's withholding of sums admittedly due subcontractors in an effort to obtain an unfair advantage is a violation of c. 93A.

**Electric Trade Management, Inc. v. Wayne J. Griffin Electric, Inc. 49 Mass. App. Ct. 1111 (2000)

Formation of a joint venture requires agreement on multiple factors. Conclusory statements of agreement are insufficient for summary judgment.

Empire Masonry Corp. v. Town of Franklin
28 Mass. App. Ct. 707 (1990)

Substitution of sub-bidder on public construction required when low sub-bidder refuses to sign contract.

Fall River Housing Authority v. H.V. Collins Co. 414 Mass. 10 (1992)

No implied right of indemnity by contractor against subcontractor.

First National Insurance Co. v. Lynn 525 F.2d 1 (1^st Cir. 1975)

Caption at top of payment requiring faithful performance by project owner did not condition right of subcontractors to recover against bond surety.

Floors, Inc. v. B.G. Danis of New England, Inc. 7 Mass. App. Ct. 356
aff'd - 380 Mass. 91 (1980)

Subcontractor denied statutory legal fees incurred in arbitration.

Fred C. McClean Heating Supplies, Inc. v. M.J. Walsh & Sons, Inc. 349 Mass. 489 (1965)

Contracting officer's determination that proposed substitute material was not equal, dispositive where not arbitrary or capricious.

Fred C. McClean Heating Supplies, Inc. v. School Bldg. Com. of Springfield 341 Mass. 322 (1960)

Public authority may disregard obvious clerical error in filed sub-bid.

Fred C. McClean Heating Supplies, Inc. v. Westfield Trade High School Bldg. Committee of City of Westfield
345 Mass. 267 (1962)

Filed subcontractor, carried by successful contractor, whose bid was wrongly rejected, ruled entitled to subcontract award.

**Frontiero Brothers, Inc. v. Thomas G. Gallagher, Inc. 25 Mass. App. Ct. 1101 (1987)

Dismissal affirmed based on claim splitting and prior pending action.

Gaffny Plumbing & Heating Corp. v. C.A. Batson Co. 1 Mass. App. Ct. 802 (1973)

Subcontractor specifications ruled unambiguous.

George A. Fuller Co., Inc. v. Nelson J. Sanford & Sons, Inc. 5 Mass. App. Ct. 802 (1977)

Denial of application to stay arbitration, not immediately appealable.

*Grande & Son, Inc. v. School Building Committee of North Reading 334 Mass. 252 (1956)

General bidder on public building project cannot use an invalid sub-bid. General contracter ward ruled illegal.

Hampden Cornice Works, Inc. v. Leo Spear Const. Co. 348 Mass. 798 (1965)

Architect's interpretation of specification requirements upheld by state housing board, ruled conclusive.

Hardware Specialties, Inc. v. Mishara Const. Co., Inc. 2 Mass. App. Ct. 277 (1974)

Subcontractor awarded extra where contract ambiguity resolved by custom in the trade.

H. Piken & Co. v. Planet Const. Corp. 3 Mass. App. Ct. 246 (1975)

Absent a specific completion date, contractor must complete within reasonable time.

Industrial Engineering & Metal Fabricators, Inc. v. Fontaine Bros. 2 Mass. App. Ct. 695 (1974)

Subcontractor awarded extra for work not shown on plans. Statutory penalty interest not applied to extra work resulting from good faith dispute.

Industrial Engineering & Metal Fabricators, Inc. v. Poorvu Const. Co. 354 Mass. 287 (1968)

General bidder qualified to file sub-bid for miscellaneous metals trade.

Interstate Engineering Corp. v. City of Fitchburg 367 Mass. 751 (1975)

Filed sub-bid modified by negotiation ruled illegal because it violates central legislative purpose of fair competition.

J - M

*James J. Welch & Co., Inc. v. Deputy Com'r of Div. Of Capital Planning and Operations 387 Mass. 662 (1982)

Contractor on public project denied extra administrative costs because of substitution of subcontractors.

J.C. Higgins Company, Inc. V. Bond Bros., Inc., 58 Mass. App. Ct. 537 (2003)

Subcontractor entitled to interest pursuant to M.G.L. c. 231, §6C (12%) on disputed amount recovered from general contractor.

J.F. White Contracting Co. v. Department of Public Works 24 Mass. App. Ct. 932 (1987)

Subcontractor entitled to extra cost resulting from change in completion date after bid submitted.

J.J. Finn Elec. Service, Inc. v. P&H General Contractors, Inc. 13 Mass. App. Ct. 973 (1982)

Engineer's decision favoring subcontractor not error of law and is enforceable.

John D. Ahern Co., Inc. v. Trustees of Boston University 12 Mass. App. Ct. 47 (1981)

Private owner not liable to subcontractors for waiving payment bond.

John F. Miller Co., Inc. v. George Fichera Const. Corp .7 Mass. App. Ct. 494 (1979)

Public subcontractor awarded extra for work not listed in its section of specifications.

John H. Barrett, Inc. v. Joseph Rugo, Inc. 3 Mass. App. Ct. 726 (1975)

Subcontractor awarded extra work ordered by contractor.

John W. Egan Co., Inc. v. Major Construction Management et al. 46 Mass. App. Ct. 643 (1999)

Payment bond surety must pay a subcontractor bond claimant all interest owed by the general contractor on unpaid amounts even where the surety had no notice of the claim when it became due.

Joseph A. Fortin Const., Inc. v. Massachusetts Housing Finance Agency 17 Mass. App. Ct. 911 aff'd. - 392 Mass. 440 (1984)

Harm resulting from owner failing to require statutory bond occurs when inability of principal to pay becomes apparent.

J.P. Const. Co., Inc. v. Stateside Builders, Inc. 45 Mass. App. Ct. 920 (1998)

Statutory legal fees on public construction not limited by principal recovery.

**Julian Crane v. President & Fellows of Harvard 11 Mass. App. Ct. 1044 (1981)

Crane supplier denied mechanic's lien for lack of written contract.

Kaufman v. Leard 356 Mass. 163 (1969)

The Architect was the owner's agent in ordering contractors to proceed with work, and the owner was required to pay the value of that work.

Lawrence Plate & Window Glass Co. v. Varrasso Bros. Inc. 353 Mass. 631 (1968)

Notice of specially fabricated material not required for recovery against bond where materials are incorporated in project.

Limbach Co. v. George B. H. Macomber Co. 357 Mass. 475 (1970)

Subcontractor awarded extra for piping not shown on drawings.

Lincoln-Sudbury Regional School Dist. v. Brandt- Jordan Corp. of New Bedford 356 Mass. 114 (1969)

Low filed sub-bidder who withdrew bid without justification liable for difference in bid price.

**Local 589 Amalgamated Transit Union v. Mass. Bay Transportation Authority, et al.

Mootness affirmed as basis for dismissal.

Long Island Painting Corp. v. Beacon Const. Co. 345 Mass. 567 (1963)

Public subcontractor under c. 30, §39F has direct right against funds retained by owner.

*Loranger v. Martha's Vineyard Regional High School Dist. School Committee 338 Mass. 450 (1958)

General bid not affected by invalidity of filed sub-bid under amended statute.

Lusalon, Inc. v. Hartford Acc. & Indem. Co. 23 Mass. App. Ct. 903 aff'd - 400 Mass. 767 (1987)

Broad form liability coverage excludes damage to material adjacent to sub's work.

Manganaro Brothers Inc. v. Gevyn Construction Corp. 610 F.2d 23 (1^stCir. 1979)

Subcontractor denied lost profits against contractor for breach unrelated to termination by Project owner which prevented subcontractor's completion.

Manganaro Drywall, Inc. v. Penn-Simon Const. Co. 357 Mass. 653 (1970)

Compromise agreement signed by contractor providing for retroactive interest on default, enforced.

Manganaro Drywall, Inc. v. White Const. Co., Inc. 372 Mass. 661 (1977)

Statutory legal fees to subcontractor who recovers against payment bond on public project ruled constitutional.

**Manganaro v. Mansour 9 Mass. App. Ct. 938 (1980)

Master's report favoring subcontractor affirmed in the absence of timely objections.

McCoy v. Massachusetts Institute of Technology 950 F.2d 13 (1^st Cir. 1991)

Mechanic's lien statute providing union trust funds a means to secure payment of delinquent accounts ruled pre-empted by ERISA.

Metro Insulation Corp. v. Leventhal 1 Mass. App. Ct. 213 (1973)

Agreement on extra work overrides notice requirements. Custom in trade used to determine subs contract obligation.

M.L. Shalloo, Inc. v. Ricciardi & Sons Const., Inc. 348 Mass. 682 (1965)

Subcontractor allowed recovery for extra work where contractor held to waive contract notice requirements.

**Mishara Construction Co. v. Philip Renzi & Sons 636 F2d 1198 (1980)

Contractor justified in terminating subcontract.

*Modern Continental v. City of Lowell 391 Mass. 829 (1984)

Preliminary injunction to stop illegal bidding procedure, affirmed. Prequalification a non-waivable statutory requirement

**Montle Plumbing & Heating Co. v. J.K. Scanlan Company 46 Mass. App. Ct. 1109 (1999)

Notice of backcharges against filed subcontractor invalid because not in writing.

**Montle Plumbing & Heating Co., Inc. v. Sullivan- Foster, Inc. et al. 37 Mass. App. Ct. 1102 (1994)

Summary judgment affirmed against general contractor and surety.

**Morganti, Inc. v. Division of Capital Planning and Operations
39 Mass. App. Ct. 1116 (1995)

Claim for extra compensation for work not described in RFP or included in contractor's proposal.

N - R

N.B. Kenney Company, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA; Town of Ipswich, third part defendant, 70 Mass. App. Ct. 736 (2007)

A c. 149, §29 payment bond claim is timely when court action is filed one year after claimant completes its subcontract work. The time for filing is not measured when claimant completes work involved in the dispute.

**N.F. Laurence & Associates, Inc. v. Boston Housing Authority 35 Mass. App. Ct. 1113 (1993)

Claim for extra work by architect denied.

Norfolk Elec., Inc. v. Fall River Housing Authority 417 Mass. 207 (1994)

State bid law controls despite federal funds.

**Patterson Kelly v. United 8 Mass. App. Ct. 951 (1979)

C.149, §29 notice by incomplete sub-sub timely when made within 65 days of contract termination, even though more than 65 days after last performance.

Paul Sardella Const. Co., Inc. v. Braintree Housing Authority 371 Mass. 235 (1976)

Bidder wrongly denied contract, limited to recovering bid preparation costs.

PDM Mechanical Contractors, Inc. v. Suffolk Constr. Co., Inc. 35 Mass. App. Ct. 228 (1993)

Wrongly terminated subcontractor limited to quantum meruit recovery.

PDM Plumbing & Heating, Inc. v. Findlen 13 Mass. App. Ct. 950 (1982)

Subcontractor recovers Eichleay overhead for delayed completion.

Peabody Const. Co., Inc. v. City of Boston 28 Mass. App. Ct. 100 (1989)

Public Authority has broad discretion to reject bid for minor non-compliance.

Plymouth-Carver Regional School Dist. v. J. Farmer & Co., Inc. 407 Mass. 1006 (1990)

Arbitrator decision final.

**Poole Construction Company, Inc. v. Town of Rockport 38 Mass. App. Ct. 1127 (1995)

Gravel permit ruled a contract.

*Poorvu Const. Co. v. Nelson Elec. Co. 335 Mass. 545 (1957)

In the absence of statutory authority, a contractor may not require a filed sub-bidder to provide a bond. Filed sub-bids are offers which contractors may only accept unconditionally.

Powell's General Contracting Co., Inc. v. Marshfield Housing Authority 7 Mass. App. Ct. 763 (1979)

Public owner waived contract dispute resolution by proceeding to trial.

Powers Regulator Co. v. U.S. Fidelity & Guaranty Co. 7 Mass. App. Ct. 913 (1979)

Payment bond surety bound by arbitration decision.

Quincy Ornamental Iron Works, Inc. v. Findlen 353 Mass. 85 (1967)

General bidder, who did not customarily perform the miscellaneous metal sub-trade, ruled an ineligible sub-bidder.

**Raymond A. Carye v. P.J. Stella Construction Corp. 31 Mass. App. Ct. 1116 (1991)

Arbitrator awarded interest confirmed.

**R.E. Chapman Co. v. Diso Corp. 816 F2d 670 (1987)

Subcontractor entitled to payment based on unit prices, not limited by quantity estimate.

Richard J. Madigan, Trustee of Oxford Road Realty Trust v. Trace Construction, Inc.; CB Seating, Inc.; L.C. Anderson, Inc.; Millis Plumbing Co., Inc.; O’Connor Door Corporation; Quinn Brothers of Essex, Inc., 71 Mass. App. Ct. 1 (2007)

Summary discharge under c. 254, §15 denied where disputed material facts existed in dispute between subcontractor, general contractor and owner on leasehold interest liens.

Richardson Elec. Co., Inc. v. Peter Francese & Son, Inc. 21 Mass. App. Ct. 47 (1985)

Contractor responsible to subcontractor for inadequate specifications prepared by owner.

Roblin Hope Industries, Inc. v. J.A. Sullivan Corp. 6 Mass. App. Ct. 481 (1978)

General contractor liable to low sub-bidder for arbitrarily refusing substitution.

Roblin Hope Industries, Inc. v. J.A. Sullivan Corp (No. 2) 11 Mass. App. Ct. 76 (1980)

Sub-bidder recovers lost profits from general contractor based on bid price less estimated direct cost to complete.

Rudolph v. City Manager of Cambridge 341 Mass. 31 (1960)

Awarding Authority's substitution of higher sub-bid for low sub-bid carried by general contractor, ruled illegal.

**Ryan Iron Works, Inc. v. J.F. White Construction Company, Inc. 44 Mass. App. Ct. 1126 (1998)

Specifications ruled ambiguous and subcontractor's claim denied where it made no prebid inquiry.

S - Z

Salter v. Scott 363 Mass. 396 (1973)

Retrial of district court action in Superior Court required under remand statute.

Savignano v. Gloucester Housing Authority 344 Mass. 668 (1962)

Contractor denied extra work where it proceeded without written notice and the clerk of works had no apparent authority to waive the requirement.

*Simon v. State Examiners of Electricians
18 Mass. App. Ct. 17 rev. - 395 Mass. 238 (1985)

Fire alarm installation not subject to electrical licensing.

Snyder v. Murphy 10 Mass. App. Ct. 534 (1980)

Union trust fund recovers contributions under collective bargaining agreement from non-signatory.

**State Wide Concrete v. Titan Northeast 26 Mass. App. Ct. 1108 (1988)

Termination of subcontract ruled justified.

*Sutton Corp. v. Metropolitan Dist. Com'n
423 Mass. 200 (1996)

Statutory notice supercedes contract notice for extra work caused by subsurface conditions.

**The Cheviot Corporation v. Building and Construction Systems 32 Mass. App. Ct. 1114 (1992)

Default judgment against principal also binding on bond surety.

**The Dow Company, Inc. v. Gaffny Corporation Contractors 43 Mass. App. Ct. 1115 (1997)

Extra work claims awarded subcontractor plus legal fees under c.149, §29.

United States Fidelity v. United States 475 F.2d 1377 (1973)

Unpaid subcontractors have priority right to retained funds held by the government, but sovereign immunity barred subcontractor claims.

United States f.u.b.o. Ahern v. J.F. White Contracting Co. 649 F.2d 29 (1^stCir. 1981)

Miller Act bond notice by incomplete sub-sub ruled untimely when made within 90 days of contract termination but more than 90 days after last performance.

Vance v. City of Haverhill 352 Mass. 772 (1967)

Bond notice in the name of a related entity sufficient to satisfy public bond statute.

**Venus Drywall, Inc. v. Kullman Industries, Inc. et al. 44 Mass. App. Ct. 1122 (1998)

Lien release did not bar subcontractor's recovery against c.149, §29 payment bond.

**Wallboard Supply Company, v. Charles Construction Co. 44 Mass. App. Ct. 1111 (1998)

C.149, §29 bond notice of material supplier timely when made within 65 days of last delivery.

Water Works Supply Corp. v. Cahill 344 Mass. 442 (1962)

Subcontractor who filed timely sworn statement permitted to intervene in existing bond suit more than one year later.

**William Higgins, et al. v. Marsico, et al.
34 Mass. App. Ct. 1117 (1993)

Claim by condominium association.

Worcester Air Conditioning Co., Inc. v. Commercial Union Ins. Co. 14 Mass. App. Ct. 352 (1982)

Sub-subcontractor notice adequate to recover on statutory bond.

Yanofsky v. Marinucci Bros. & Co. 351 Mass. 698 (1966)

Payment bond surety required to pay interest due under the subcontract.