South Shore Hellenic Church, Inc. v. Artech Church Interiors, Inc. et al

Filing 126

Magistrate Judge Marianne B. Bowler: ORDER entered. REPORT AND RECOMMENDATION Re: Plaintiff's Motion for Partial Summary Judgment (Docket Entry # 91 ); Michael J. Cave Corporation's Motion for Summary Judgment (Docket Entry # 92 ); De fendant, Artech Church Interiors, Inc. and William Burns' Motion for Summary Judgment (Docket Entry # 95 ). MEMORANDUM AND ORDER Re: Defendants' Motion to Deem Its Statement of Undisputed Material Facts Admitted (Docket Entry # 109 ). DENIED in part. ALLOWED in part. (Objections to R&R due by 3/4/2016). (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SOUTH SHORE HELLENIC CHURCH, INC.,
a/k/a “NATIVITY-ASSUMPTION OF THE
VIRGIN MARY GREEK ORTHODOX CHURCH,”
“NATIVITY OF THE VIRGIN MARY GREEK
ORTHODOX CHURCH,” “NATIVITY OF THE
VIRGIN MARY/PANAGIA,” “PANAGIA GREEK
ORTHODOX CHURCH,” and “PANAGIA
CHURCH,”
Plaintiff,

v.

CIVIL ACTION NO.
12-11663-GAO

ARTECH CHURCH INTERIORS, INC. and
WILLIAM BURNS, Individually, and
as President, Artech Church
Interiors, Inc.,
Defendants/Third Party
Plaintiffs,
v.
MICHAEL J. CAVE, CORP., a/k/a MICHAEL
J. CAVE CORP. OF MASSACHUSETTS, and
JAMES J. AMIRAULT d/b/a JIM’S PRO
PLASTERING,
Third Party Defendants.

REPORT AND RECOMMENDATION RE:
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
(DOCKET ENTRY # 91); MICHAEL J. CAVE CORPORATION’S MOTION FOR
SUMMARY JUDGMENT (DOCKET ENTRY # 92); DEFENDANT, ARTECH CHURCH
INTERIORS, INC. AND WILLIAM BURNS’ MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 95)
MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTION TO DEEM ITS STATEMENT OF
UNDISPUTED MATERIAL FACTS ADMITTED
(DOCKET ENTRY # 109)
February 19, 2016
BOWLER, U.S.M.J.
Pending before this court are motions for summary judgment

filed by defendants Artech Church Interiors, Inc. (“Artech”) and
William Burns (“Burns”) (collectively “defendants”) and by third
party defendant Michael J. Cave Corporation (“Cave”) in this
breach of contract action involving repairs to the Panagia Greek
Orthodox Church in Cohasset, Massachusetts.
92, 95).

(Docket Entry ##

Plaintiff South Shore Hellenic Church, Inc. (“SSHC”)

moves for partial summary judgment on a claim under
Massachusetts General Laws chapter 93A (“chapter 93A”), section
nine.

(Docket Entry # 91).

Defendants move to strike various

paragraphs in SSHC’s Local Rule 56.1 statement of undisputed
facts.

(Docket Entry # 109).

After conducting a hearing, this

court took the motions (Docket Entry ## 91, 92, 95) under
advisement.
PROCEDURAL BACKGROUND
The amended complaint sets out the following causes of
action solely against Artech:

(1) breach of contract (Count I);

(2) breach of an express guarantee in the contract (Count II);
(3) breach of an implied warranty to do a workmanlike job (Count
III); (4) negligence (Count IV); and (5) breach of the implied
covenant of good faith and fair dealing (Count V).

Count VI

against Artech and Burns, as an individual and officer of
Artech, alleges a violation of chapter 93A, section nine.
Plaintiff moves for summary judgment on the chapter 93A claim,
2

alleging that defendants materially breached an “unconditional
guarantee.”

(Docket Entry # 91).

Defendants move for summary judgment on the basis that SSHC
lacks Article III standing because it is not a party to the
contract.

(Docket Entry # 95).

Defendants also seek, in the

alternative, summary judgment on the chapter 93A claim due to an
absence of facts supporting unfair and deceptive business
practices.

(Docket Entry # 95).

Defendants filed a third party complaint against Cave and
James J. Amirault d/b/a Jim’s Pro Plastering (“Jim’s Pro”)
(collectively “third party defendants”).

The third party

complaint sets out the following causes of action brought by
defendants against Cave:

(1) contribution (Count I); (2) common

law indemnification (Count II); (3) breach of contract and the
covenant of good faith and fair dealing (Count III);1 and (4)
breach of implied warranty (Count IV).

(Docket Entry # 53).

The third party complaint also sets out the following causes of
action against Jim’s Pro:

(1) contribution (Count V); and (2)

common law indemnification (Count VI).

(Docket Entry # 53).

Cave moves for summary judgment on all of the counts against
him.

(Docket Entry # 92).

1

Count III is captioned as brought only by Artech against Cave.
The paragraphs specific to Count III, however, clarify that
Burns as well as Artech are bringing the claim.
3

STANDARD OF REVIEW
Summary judgment is designed “to ‘pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”

Tobin v. Fed. Express

Corp., 775 F.3d 448, 450 (1st Cir. 2014).

It is appropriate “if

the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”

Fed.R.Civ.P. 56(a).

It is inappropriate “if the

record is sufficiently open-ended to permit a rational
factfinder to resolve a material factual dispute in favor of
either side.”

Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301

(1st Cir. 2014).

“‘A dispute is genuine if the evidence about

the fact is such that a reasonable jury could resolve the point
in the favor of the non-moving party.’”

Am. Steel Erectors,

Inc. v. Local Union No. 7, Int’l Ass’n of Bridge, Structural,
Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir.
2008).

“‘[A] fact is material if it has the potential to

determine the outcome of the litigation.’”

Davalia v.

Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9,
12 (1st Cir. 2007).
When ‘‘the parties have filed cross-motions for summary
judgment, the court must ‘determine whether either of the parties
deserves judgment as a matter of law on facts that are not
disputed.’’’

Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir.
4

2010).

Facts and ‘‘all reasonable inferences’’ are drawn ‘‘in

the light most favorable to the nonmoving party.’’

Id.

The

factual background includes a number of disputed facts which this
court resolved in favor of the non-moving party in the discussion
section.

Finally, in adjudicating one or more of the summary

judgment motions, this court may consider not only the cited
materials, but also ‘‘other materials in the record.’’
Fed.R.Civ.P. 56(c)(3).
FACTUAL BACKGROUND
SSHC is a corporation organized under Massachusetts law
with a stated purpose “[t]o develop and operate an Eastern
Orthodox (Greek) Church under the auspices of the Greek Orthodox
Church of North and South America.”

(Docket Entry # 100-2).

On

November 26, 1980, SSHC purchased the Pope Memorial Church
located at 811 Jerusalem Road in Cohasset.
¶ 2) (Docket Entry # 112, ¶ 2).

SSHC’s principle place of

business is located at the same address.
3) (Docket Entry # 112, ¶ 3).

(Docket Entry # 100,

(Docket Entry # 100, ¶

After the purchase, the Pope

Memorial Church became a Greek Orthodox Church (“the Church”).
(Docket Entry # 100, ¶ 4) (Docket Entry # 112, ¶ 4).

The Church

was named “the ‘Panagia Greek Orthodox Church,’” which, is one
of several adopted trade names for SSHC.
¶¶ 7, 8).2

(Docket Entry # 100-1,

On or about the summer of 1997, the Church was

2

This material fact is disputed.
5

The above statement is made

formally consecrated as the “Nativity-Assumption of the Virgin
Mary Greek Orthodox Church.”

(Docket Entry # 100, ¶ 6) (Docket

Entry # 112, ¶ 6).
In the spring of 2009, SSHC’s board of stewards decided to
undertake repairs to restore the Church.
6) (Docket Entry # 104, ¶ 6).

(Docket Entry # 90, ¶

In his affidavit, Edwin R.

Lofgren, president of the board at the time, stated that the
purpose of these repairs were “to restore the water damaged
interior and waterproof the exterior of the Church.”3
Entry # 90-1, ¶ 9).

(Docket

In his deposition, Lofgren testified that

the Church seriously considered Artech and one other contractor.
(Docket Entry 115-2, p. 44).4
During the spring of 2009, Lofgren and Burns spoke over the
telephone and met at the Church to discuss repair work to the
Church.

(Docket Entry # 100, ¶ 9) (Docket Entry # 112, ¶ 9)

(Docket Entry # 90-53, p. 91).

Cave also met Lofgren at the

Church during this time period to look at the Church and review
the Church’s needs for the restoration work.

(Docket Entry #

when the record is viewed in favor of SSHC. Other evidence in
the record allows a fact finder to conclude that Panagia Greek
Orthodox Church is not a trade name for SSHC, including Peter
Bourikas’ deposition (Docket Entry # 115-1, p. 56).
3
Defendants deny that SSHC’s board of stewards decided to
waterproof the exterior of the Church. (Docket Entry # 104, ¶
6).
4
The page number refers to the docketed page number.
6

90-8, pp. 93-94).
roof.

At one point, they discussed the existing

(Docket Entry # 90-8, p. 99).
Following a series of five revisions to the proposed

contract work, Burns sent Lofgren another proposal or quote in
letter form on June 18, 2009.

(Docket Entry # 90-5).

The four-

page letter contained seven separately priced categories of
work, each with subparagraphs, for a total cost of $116,625 and
a $4,600 discount if the work was “done at the same time.”
(Docket Entry # 90-5).
Project Manager.”

The quote identified Cave as “Artech

(Docket Entry # 90-5).

that Cave was not an employee of Artech.

Thomas Burns attests
(Docket Entry # 97-3).

Burns signed the final quote as president.5
90-5).

(Docket Entry #

The contract did not include an integration clause.

(Docket Entry # 90-5).

Underneath Burns’ signature appears

language that states, “By signing below, we agree to contract
Artech Church Interiors for the work selected.”
90-5).

(Docket Entry #

Below this language is a line for a “Purchaser

5

Underneath Burns’ name is the title “President.” (Docket
Entry # 9-13). Defendants challenge that Burns signed the
document as president, alleging that this was a clerical error.
(Docket Entry # 112, ¶ 15). Defendants point to testimony in a
deposition in which Burns stated he was the treasurer and
secretary. (Docket Entry # 112, ¶ 15) (Docket Entry # 115-3,
pp. 35-36). By affidavit, Thomas Burns attests that he is the
president of Artech. (Docket Entry # 97-3). Despite this,
Burns states that he was authorized to execute contracts on
behalf of Artech. (Docket Entry # 90-53, p. 141).
7

Representative” and underneath this line is a signature line.
(Docket Entry # 90-5).

On June 22, 2009, Lofgren as “Parish

Council President” wrote and signed his name on the signature
line.

(Docket Entry # 90-5).

“Panagia Greek Orthodox Church”

is the designated purchaser representative.
5).

(Docket Entry # 90-

The address line in the upper left corner of the initial

check payable to Artech for a one-third deposit due with [the]
signed contract and dated June 22, 2009 reads, “Panagia Greek
Orthodox Church” at 811 Jerusalem Road in Cohasset.

(Docket

Entry # 9-14).
The contract included a category for “[e]xterior
[w]aterproofing” for a total of $16,900 with a subcategory to
repoint “[a]ll loose and missing mortar joints”.6
# 90-5).

(Docket Entry

An additional subcategory stated, “Exterior will be

power washed”.

(Docket Entry # 90-5).

A category for the

“Narthex” for a total of $27,175 likewise included a subcategory
to “have old loose or missing mortar replaced.”
90-5).

(Docket Entry #

The contract represented that “qualified craftsmen”

would execute the work and that, “Artech Church Interiors
guarantees all workmanship for a period of one year from the
date of project completion.”

(Docket Entry # 90-5).

One of the

6

Bourikas testified that he did not ask anyone to replace 100%
of the mortar on the building. (Docket Entry # 115-1, p. 59).
8

terms of the contract was the one-third deposit with the signed
contract.

(Docket Entry # 90-5).

There was also a requirement

that, “Once work begins, weekly progress payments will be due
until completion.”

(Docket Entry # 90-5).

On June 29, 2009, Lofgren and Joanne S. Kelley, another
member of the Church’s board of stewards, executed a “Commercial
Deposit Account Resolutions & Authorities on behalf of ‘South
Shore Hellenic Church, Inc., DBA Nativity of the Virgin
Mary/Panagia’” to open a checking account with the Rockland
Trust Bank.
8).

(Docket Entry # 100, ¶ 8) (Docket Entry # 112, ¶

The checks do not identify SSCH in the address line.

(Docket Entry # 9-17).

It is undisputed that plaintiff’s

contracting documents and the related documents, which were
shared with defendants, do not refer to SSHC.

(Docket Entry #

98, ¶ 10) (Docket Entry # 97, ¶ 10).
In late June 2009, Cave and a crew of workers (collectively
“the construction workers”) undertook the construction work to
restore the Church.

The work progressed throughout the summer.

(Docket Entry # 90, ¶ 11) (Docket Entry # 104, ¶ 11).

Cave and

his crew, as opposed to an employee of Artech, performed the
actual construction work on the building.
3).

(Docket Entry # 97-

When Cave “first came on the job,” Lofgren asked him “to

make darn sure that the exterior was watertight” before doing
9

any internal restoration work.

(Docket Entry # 115-2, pp. 54,

55).
As part of the work, the construction workers set up
scaffolding around the exterior tower of the Church.
Entry # 90-8, p. 36).

(Docket

Next, the crew power washed the Church

using a Rigid 3,000 pounds of pressure per square inch power
washer.

(Docket Entry # 90-8, pp. 29, 121-123) (Docket Entry #

90-12, p. 24).

The power washer included several color coded

tips corresponding to different dimensions of the stream of
water produced with the particular tip.

A red tip produced the

straightest stream of water and therefore the highest pressure.
A green tip produced a medium pressure six inch fan of water and
a white tip produced an even wider and lower pressure stream.
(Docket Entry # 90-8, pp. 122-123) (Docket Entry # 90-12, pp.
29-30, 54).

Cave along with two other construction workers

(Kyle Goehle and Mike Callahan) power washed the tower with
bleach mixed with water using the green tip.

(Docket Entry #

90-8, pp. 122-128) (Docket Entry # 90-12, pp. 55-56).7

Goehle

testified that the power washing uncovered and loosened mortar
on the Church’s exterior.

(Docket Entry # 90-17, pp. 176-177).

7

Elsewhere during his deposition, Cave testified that white and
green tips were used and that the green tip produced a 12 inch
fan. (Docket Entry # 90-12, pp. 33, 55-57). For purposes of
defendants’ summary judgment motion, the record is construed in
SSHC’s favor. 
10

Cave testified that they did not use the red tip.

(Docket Entry

# 90-8, p. 123).
After completing the power wash, another construction
worker (Steve Machnik) repointed “some of the loose and missing
mortar joints.”

(Docket Entry # 90-8, pp. 128-129, 134).

Cave,

who personally observed Machnik perform the pointing, estimated
that Machnik repointed “maybe one percent of all the joints in
the building, less than one percent really.”
90-8, pp. 35, 129).

(Docket Entry #

Cave also observed that “many of the areas

in the tower” showed that other people had worked on the area
using silicon to fill in missing mortar joints.
90-12, pp. 140-141).

(Docket Entry #

In addition, Cave determined that a

triangular wall above the altar showed that someone previously
put silicon in the mortar joints and, because there was already
silicon in the mortar joints, Machnik did not do any pointing in
that area.

(Docket Entry # 90-12, pp. 138-141).

Machnik used a Quickrete brand of mortar mix for the
repointing.

(Docket Entry ## 90-18, 90-19) (Docket Entry # 90-

12, pp. 33-35).

Instructions on the Quickrete bag set out a

series of steps consisting of cutting out and then raking excess
mortar, dampening the cleaned joints with a brush, loading “the
trowel with mortar,” and then finishing the repaired joint to
match the existing joint and cleaning the excess mortar off the
11

brick.
19).

(Docket Entry # 90-12, pp. 36-38) (Docket Entry # 90-

After the repointing, the construction workers applied a

Comproco Shield MX waterproof sealer.8

(Docket Entry # 90-8, pp.

131, 134-135).
Overall, Cave performed and completed the work outlined in
the contract using his own crew or subcontractors.

Cave hired

Jim’s Pro as a subcontractor to complete the plastering work at
the Church.

(Docket Entry # 97, ¶ 6) (Docket Entry # 98, ¶ 6).

Cave testified that he “hires experts,” manages their time and
lets them “take care of the work.”
47-48).

(Docket Entry # 90-8, pp.

There was no single written document setting out the

contract between Cave and Artech.9
(Docket Entry # 102, ¶ 5).

(Docket Entry # 94, ¶ 5)

There were, however, several

writings between Artech and Cave, including proposals regarding
the scope and cost of Cave’s work, a June 23, 2009 invoice Cave
sent to Artech and a number of other invoices or purchase
orders.

(Docket Entry ## 94-4, 102-1, 102-3, 102-9) (Docket

Entry # 90-8, pp. 21-24, 104-109).
In the fall of 2009 Peter Bourikas (“Bourikas”), chairman
of the board of stewards’ building committee, compiled a “punch

8

The exterior waterproofing category of the contract included a
subcategory requiring Artech to coat the stone work “with
Comproco Shield MX” sealer. (Docket Entry # 90-5).
9
Defendants maintain an oral contract existed. (Docket Entry #
102, ¶ 5).
12

list” of 20 items requested by the building committee.
Entry # 90-21).

(Docket

Cave testified at his deposition that he had

completed the remaining items on the punch list “probably
sometime four days [sic] the beginning of October [2009], first
week in October everything was completed.”
8, p. 241).

(Docket Entry # 90-

After Cave finished the punch list, Bourikas was

satisfied with the work.

(Docket Entry # 115-1, p. 61).

Bourikas also stated that, if he had issues with the work, he
drew Cave and Artech’s attention to them “and they repaired them
to [Bourikas’] satisfaction.”

(Docket Entry # 115-1, p. 45).

He does not remember complaining about the mortar joints and
agreed that he was “satisfied aesthetically with how [the
reporting] was done.”

(Docket Entry # 115-1, p. 49).

On

October 6, 2009, the Church made the last installment payment
after Cave completed the punch list.

(Docket Entry # 90, ¶ 21)

(Docket Entry # 104, ¶ 21).
Lofgren attests that water leaks developed in the Church’s
exterior building in late February 2010, four and a half months
after the restoration work was reported complete.10

(Docket

10

Defendants deny that the leaks started in February 2010 by
noting that, “Panagia documents indicate the church suffered
storm damage sometime prior to November 8, 2009.” (Docket Entry
# 104, ¶ 30). In particular, they identify minutes from a June
20, 2010 general assembly meeting of the Church which note, at
most, that minutes from a November 8, 2009 general assembly
meeting “were distributed and approved by the quorum.” (Docket
13

Entry # 90-1, ¶ 14).

The Church contacted its insurance company

which sent a representative to inspect the damage on March 30,
2010.

(Docket Entry # 90-1, ¶ 15).

Bourikas recalled there

“was a really bad wind and rainstorm” in the time frame
preceding March 30, 2010.11

(Docket Entry # 115-1, p. 57).

The

insurance representative observed lifted shingles on the roof
above the altar.12

(Docket Entry # 90-26, p. 1).

Alongside a

photograph of the roof above the Narthex, the representative
noted, “No damage observed” and that “Wind blown water possibly
entered through the vent and or the hatch door.”
# 90-26, p. 5).

(Docket Entry

The representative also noted water damage

occurring to the ceiling and walls of the Narthex, a painted

Entry # 94-5, p. 2). In a separate paragraph for “Committee
Reports,” the minutes from the June 20, 2010 general assembly
meeting reflect that Lofgren reported on behalf of the building
and grounds committee that, “The Church has suffered storm
damage in places, especially over the Altar and Narthex” and
that “[t]he insurance company has looked at the damage.”
(Docket Entry # 94-5, p. 2). A representative of the insurance
company took photographs on March 30, 2010. (Docket Entry # 9026).
11
Bourikas described that, “you can get horizontal-driven rain
that goes right through a wall or a window” in Cohasset and in
Hull “because the force of the wind is so hard.” (Docket Entry
# 115-1, p. 37). With respect to the Church, Bourikas testified
that, “The wind facing the east section . . . is unbelievable”
and “like a freight train because of the topography.” (Docket
Entry # 115-1, pp. 17-18).
12
The state of the roof immediately before and after Artech
undertook the work is relevant to these proceedings.
14

mural in the apse above the altar and a wall in the altar area.
(Docket Entry # 90-26, pp. 8-13).
Lofgren testified that he met with Burns and another
individual in early 2010 shortly after the Church experienced
the water damage.

(Docket Entry # 115-2, pp. 47-48).

Lofgren

also testified that he must have telephoned Cave as well.
(Docket Entry # 115-2, p. 66).
Cave likewise testified that in the spring of 2010 he
received a telephone call from Lofgren.
pp. 242-44).

(Docket Entry # 90-8,

Shortly thereafter, Cave told Lofgren and Bourikas

that he would “‘fix the ceiling in the [N]arthex and the wall in
the nave at no cost.’”

(Docket Entry # 90-8, p. 249).

There

was no activity on Cave’s part between the spring of 2010 and
September 2010 regarding the leak situation.
90, ¶ 35) (Docket Entry # 104, ¶ 35).

(Docket Entry #

In September 2010,

Lofgren contacted Michael G. Foley (“Foley”) who, after climbing
up onto the roof, identified “numerous masonry joints with
‘missing mortar’ and,” upon inspecting the interior of the
Narthex, “‘found water on the brick inside’ a room above the
ceiling of the Narthex.”

(Docket Entry # 90, ¶ 36) (Docket

Entry # 104, ¶ 36) (Docket Entry # 90-27, pp. 82-83).
On September 20, 2010, Lofgren contacted Burns by email
concerning the problems at the Church and the inability to get
15

“the response we need” from Cave.

(Docket Entry # 90-47)

(Docket Entry # 115-2, p. 79) (Docket Entry # 90, ¶ 37) (Docket
Entry # 104, ¶ 37).

The two spoke on the telephone about the

problems in the Narthex area and, in a September 20, 2010 reply
email, Burns stated he would get back to Lofgren.
# 90-47) (Docket Entry # 115-2, pp. 79-80).

(Docket Entry

In a follow-up

letter to Burns dated September 21, 2010, Lofgren advised Burns
that he had “been working with Mike Cave . . . in an effort to
deal with our water intrusion problems which have devastated the
Narthex area of the church interior after all the work”
[performed by] Artech.”

(Docket Entry # 90-48).

Lofgren also

informed Burns in the letter that, “A major part of the
restoration process was to make the [C]hurch ‘tight’ on the
exterior to avoid the water intrusion” and that this was “not
properly done.”

(Docket Entry # 90-48).

The letter asserted

that “both roof flashing and stone joint leaks” led to the water
intrusion.

The letter enclosed photographs illustrating the

exterior problems.

(Docket Entry # 90-48) (Docket Entry # 115-

2, p. 80).
Burns visited the property on October 6, 2010 and observed
the damage to the Narthex area as well as the altar area.
(Docket Entry # 90-53, pp. 215-217) (Docket Entry # 90, ¶ 40)
(Docket Entry # 104, ¶ 40).

Lofgren also discussed the masonry
16

with Burns.

(Docket Entry # 115-2, p. 81).

During the meeting,

Lofgren showed Burns the damage and Burns said “he would be
anxious to take care of it.”

(Docket Entry # 115-2, p. 81).

On November 1, 2010, Lofgren emailed Burns about his
concern regarding completing “the masonry work” and “that the
contract was not honored.”

(Docket Entry # 90-50).

In a reply

email the same day, Burns informed Lofgren that, “Cave will be
at the [C]hurch Saturday morning to complete the masonry work.”
(Docket Entry # 90-50).

According to Cave, “‘there was a

consensus between’” Burns, Lofgren and himself that some masonry
work needed to be done.
# 104, ¶ 42).

(Docket Entry # 90, ¶ 42) (Docket Entry

Lofgren’s November 1, 2010 email also advised

Burns that the Church had “hired a roofing company that will
complete the roof repairs the second week in November.”
Entry # 90-50).

(Docket

Stephen Flynn of Flynn Roofing Company

(“Flynn”) submitted a proposal to Foley dated October 21, 2010.
(Docket Entry # 90-27, p. 42).

The proposal quoted a price of

$9,000 to repair certain areas of the roof.

Flynn performed the

repairs and the Church paid Foley $9,000 for Flynn’s work.
(Docket Entry # 90-27, pp. 42, 105, 120-121) (Docket Entry # 935).
On November 13, 2010, Cave went to the Church to perform
the repairs and repointing.

(Docket Entry # 90, ¶ 43) (Docket
17

Entry # 104, ¶ 43).

The work was not completed that day.

(Docket Entry # 90-12, p. 82) (Docket Entry # 90, ¶ 44) (Docket
Entry # 104, ¶ 44).

Cave acknowledged there were a few areas of

minor damage remaining and said he would come back and take care
of them in the spring of 2011.

(Docket Entry # 90-8, pp. 250-

252) (Docket Entry # 90, ¶ 45) (Docket Entry # 104, ¶ 45).

That

spring, Lofgren asked Cave to return to take care of the
pointing and spoke to him on the telephone.

(Docket Entry # 90,

¶ 46) (Docket Entry # 104, ¶ 46) (Docket Entry # 90-12, p. 84)
(Docket Entry # 115-2, p. 82).

Cave, however, did not return in

the spring and thereafter did not perform any additional masonry
work on the Church.

(Docket Entry # 90-12, pp. 81, 83) (Docket

Entry # 115-2, p. 82).

In an email to Burns dated March 25,

2011, Lofgren expressed his view that Cave did not have an
interest in returning to the Church to do the re-mortaring.
(Docket Entry # 90-51).
In an email to Burns dated March 29, 2011, Lofgren stated
that “[t]he roof work has been completed.”
52).

(Docket Entry # 90-

In the email, Lofgren informed Burns that, “[T]he mortar

work on the roof needs to be completed” and asked Burns to hire
a local contractor.

(Docket Entry # 90-52).

18

Burns did not

respond to the email.13

(Docket Entry # 90, ¶ 51) (Docket Entry

# 104, ¶ 51).
On July 7, 2011, Foley provided Lofgren with a proposal to
“repoint all mortar joints.”

(Docket Entry # 9-29).

The

proposal set out a cost of $63,000 and reflected “a second
phase” for Flynn to remove flashing and roof shingles for “an
additional cost” of $36,000.

(Docket Entry # 9-29) (Docket

Entry # 115-2, pp. 83-84).
In 2012, more than two years after the October 2009
inspection and final payment, SSHC’s expert witnesses visited
the Church to review the existing conditions and prepare
reports.

(Docket Entry # 90, ¶ 55) (Docket Entry # 104, ¶ 55).

The reports detail damage to the mortar joints and stone masonry
among other problems.

(Docket Entry # 90-56) (Docket Entry #

90-58).
Robert G. Wilkin (“Wilkin”) of CSI Consulting Inc., one of
SSHC’s two experts, opined that, “[T]he main source of the
leakage into the sanctuary of the church appears to be from
water penetrating the stone masonry through poorly pointed and
open mortar joints and cracks.”

(Docket Entry # 90-56, p. 4).

He opined that the most recent masonry work, i.e., the work

13

To quote defendants’ response: “Defendant does not dispute
this fact, but neither does it admit to it.” (Docket Entry #
104, ¶ 51).
19

performed by Machnik and overseen by Cave, was “poorly done and
not in accordance with industry standards.”
56, p. 4).

(Docket Entry # 90-

He additionally concluded that more than 50% of the

mortar joints were “defective with failing or cracked mortar
allowing water to penetrate through the face of the masonry
entering in to wall system and reach[ing] the interior.”14
(Docket Entry # 90-56, p. 4).

Similarly, Michael Teller

(“Teller”) of CSI Consulting Inc., SSHC’s other expert, opined
that, “The pointing was done incorrectly” and that “[p]rior to
the pointing work, the joints were not cut and insufficient
mortar was installed into the joints.”
p. 9).

(Docket Entry # 90-58,

Teller also found that, “The color, finish, and type of

mortar was incorrect.”

(Docket Entry # 90-58, p. 9).

Teller

opined that the inadequate and improper pointing over the door
under the tower and over the apse caused leaks into the
building.

(Docket Entry # 90-58, p. 9).

14

By affidavit, Thomas Burns, Artech’s president, attests that,
“It was never communicated to Artech that Panagia” had an
expectation that 50%, let alone 100%, of the exterior joints
would be repointed as part of the contract. (Docket Entry # 973). Thomas Burns, who is familiar with Artech’s “pricing and
quoting of all Artech’s prospective work,” further stated that,
if the Church had indicated such an expectation, then Artech
would have used a large masonry subcontractor and the price of
the contract would have been more than $212,000. (Docket Entry
# 97-3).
20

In addition to the improper repointing, Wilkin opined that
the high pressure water cleaning process exposed formerly sealed
mortar joints that were never repointed.
p. 4).

(Docket Entry # 90-56,

Teller similarly determined that, “The power washing

removed older, but still performing, sealants that had been
applied over mortar joints” and that leaks began after the
removal of the sealants.

(Docket Entry # 90-58, p. 9).
DISCUSSION

I.

Standing
Defendants argue that SSHC lacks standing because it was

not a party to the June 22, 2009 contract.

Article III of the

Constitution endows the judicial branch with the power to settle
only “cases” or “controversies.”
1.

U.S. CONST. art. III, § 2, cl.

As explained in the August 2014 Report and Recommendation,

SSHC bears the burden to establish standing.15

Blum v. Holder,

744 F.3d 790, 795 (1st Cir.) (“‘“party invoking federal
jurisdiction bears the burden of establishing” standing’”) cert.
denied, 135 S.Ct. 477 (2014).

The inquiry entails “a familiar

triad” of “injury, causation, and redressability.”
Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012).

Katz v.

More

specifically, it requires a “concrete and particularized injury,

15

The law regarding standing set out in the prior Report and
Recommendation has not materially changed and is reproduced here
for ease of reference.  
21

a causal connection between that injury and the wrongdoer’s
conduct, and the likelihood that prevailing in the action will
rectify the injury in some way.”

United States v. $8,440,190.00

in U.S. Currency, 719 F.3d 49, 57 (1st Cir. 2013).

To satisfy

“the ‘irreducible constitutional minimum of
standing,’” a “plaintiff must have suffered or be imminently
threatened with a concrete and particularized ‘injury in fact’
that is fairly traceable to” the defendant and “likely to be
redressed by a favorable judicial decision.”

Lexmark

International, Inc. v. Static Control Components, Inc., 134
S.Ct. 1377, 1386 (2014) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992)).
Standing also has “a prudential component.”

Gianfrancesco

v. Town of Wrentham, 712 F.3d 634, 637 (1st Cir. 2013); accord
Katz v. Pershing, LLC, 672 F.3d at 72.

These prudential

concerns “‘require a plaintiff to show that his claim is
premised on his own legal rights (as opposed to those of a third
party), that his claim is not merely a generalized grievance,
and that it falls within the zone of interests protected by the
law invoked.’”

Katz v. Pershing, LLC, 672 F.3d at 72 (quoting

Pagán v. Calderón, 448 F.3d 16, 27 (1st Cir. 2006)).
A corporation, including a religious corporation such as
SSHC, may adopt names other than its incorporated name.
22

See

Women’s Mutual Benefit Society, St. Mary of Carmen, of Newton v.
Catholic Society Feminine of Maria S.S. of Monte Carmelo, of
Newton, 23 N.E.2d 886, 888 (Mass. 1939) (“[t]here is no
statutory prohibition whereunder a corporation may not use a
name other than its own apart from the matter of infringing upon
another’s right to use a name”); accord Minot v. Curtis, 7 Mass.
441, 443-444 (Mass. 1811).16

Further, a corporation may conduct

business under a trade name and enter into contracts “if
unaffected by fraud.”

William Gilligan Co. v. Casey, 91 N.E.

124, 124-125 (Mass. 1910); Atlantic Microwave Corp. v. Whalen,
2011 WL 4463492, at *2 (Mass.App.Ct. Sept. 20, 2011)
(“‘corporation may assume or be known by different names, and
contract accordingly, and that contracts so entered into will be
valid and binding if unaffected by fraud’”) (quoting William
Gilligan Co. v. Casey, 91 N.E. at 124, in parenthetical).

The

legal principle that SSHC may enter into contracts under a trade
name, however, does not automatically mean that SSHC did so
under the facts of this case.

16

In Minot, the plaintiff attended a Baptist church
incorporated as the “Baptist Society in Brunswick” but was
subject to a proportional share of the tax lodged against the
parish by the “assessors of the Congregational parish in
Brunswick.” Minot v. Curtis, 7 Mass. at 441. In finding the
plaintiff subject to the tax, the SJC determined that, “As to
the fact of this parish having used several names in its public
proceedings, we know not why corporations may not be known by
several names . . ..” Id. at 444.
23

Turning to the contract, Lofgren made the contract in a
representative capacity as an agent of at least one principal.
He signed the contract as “Parish Council President” underneath
the line reading, “Purchaser Representative: Panagia Greek
Orthodox Church.”

(Docket Entry # 90-5); see, e.g., Marshall v.

Stratus Pharmaceuticals, Inc., 749 N.E.2d 698, 705 (Mass.App.Ct.
2001) (Keith Pyle’s signature “‘For: Stratus Pharmaceuticals,
Inc., s/Keith Pyle, Title: President’ . . . makes clear that
Pyle was contracting on behalf of Stratus”).

The circumstances

thus involve an agent representing one or more principals and a
dispute regarding which principal was the contracting party.
See Lunn & Sweet Co. v. Wolfman, 167 N.E. 641, 645 (Mass. 1929).
Defendants contend that Panagia Greek Orthodox Church is an
entity separate and apart from SSHC and, as such, it is the
contracting party based on the language in the contract and the
failure to refer to SSHC in any of the related documents.

SSHC

maintains that Panagia Greek Orthodox Church is another well
known and recognized name for SSHC and that SSHC therefore
entered into the contract with Artech.
Ordinarily, in “a case where the identity of one of two
possible persons, each represented by the same agent,” is
disputed, the actual contracting party is “ascertained from all
the circumstances.”

Id.; see Interstate Litho Corp. v. Brown,
24

255 F.3d 19, 26 (1st Cir. 2001) (“any questions as to whether
Brown,” as opposed to Integra Technical Services, “was indeed a
proper party to the purported contract with Interstate were
questions of fact for the jury”).17

When asked about his

relationship to SSHC during his deposition, Bourikas responded,
“Who is South Shore Hellenic Church?”
15).

(Docket Entry # 115-1, p.

The contract and the prior drafts do not refer to SSHC.

Neither Lofgren nor Bourikas stated to Artech that he was acting
on behalf of SSHC.

In contrast, Lofgren stated in his affidavit

that, “SSHC is also well known in the community under its
adopted trade names, ‘Nativity-Assumption of the Virgin Mary
Greek Orthodox Church,’ ‘Nativity of the Virgin Mary Greek
Orthodox Church,’ ‘Nativity of the Virgin Mary/Panagia,’
‘Panagia Greek Orthodox Church,’ and ‘Panagia Church.’”
Entry # 100-1, ¶ 8).

(Docket

On balance and considering the entire

record, a reasonable jury could find that SSHC was well known in
the community as Panagia Greek Orthodox Church.
In addition, the language of the contract refers to the
“purchaser representative” as Panagia Greek Orthodox Church, a
commonly known reference to SSHC.

The subject matter of the

17

The First Circuit in Interstate cited Associates Discount
Corp. v. Haynes Garage, Inc., 24 N.E.2d 685, 687–88 (Mass.
1939), which cited Lunn & Sweet Co. v. Wolfman, 152 N.E. 893,
894–895 (Mass. 1926) (“Lunn I”), the first of the two decisions
by the SJC in the Lunn litigation.
25

contract was to repair the church building which SSHC owned.
(Docket Entry # 90-5) (Docket Entry # 100-1, ¶ 5).
Conversely, there is ample support to find that Panagia
Greek Orthodox Church, as opposed to SSHC, was the contracting
party.

First and foremost, the contract refers to Panagia Greek

Orthodox Church and does not refer to SSHC.

See, e.g., Atlantic

Microwave Corp. v. Whalen, 2011 WL 4463492, at *1-2 & n.4
(conflicting evidence at trial regarding whether AMC had right
to enforce contract warranted trial court’s denial of motion for
directed verdict).
Accordingly, for purposes of standing, a genuine issue of
material fact exists as to whether SSHC was the principal that
contracted with Artech.

The summary judgment record allows a

reasonable finder of fact to conclude that SSHC, which owns the
building subject to the deficient repairs, is well known in the
community under the trade name Panagia Greek Orthodox Church and
personally suffered the harm or injury in fact.

Such findings

would, in turn, permit a finding that SSHC is the proper party
to enforce the contract.

The finder of fact should therefore

resolve the materially disputed issue of the identity of the
entity that contracted with Artech.

Summary judgment is not

warranted based on SSHC’s lack of standing.

As an issue of

subject matter jurisdiction, however, defendants may raise the
26

issue of standing “‘at any stage of the litigation,’” including
at trial or in a post-trial motion.

Bishop v. Smith, 2014 WL

3537847, at *4 (10th Cir. July 18, 2014); see Lujan v. Defenders
of Wildlife, 504 U.S. at 561 (the plaintiff must support
standing “with the manner and degree of evidence required at the
successive stages of the litigation”).
II.

Real Party in Interest
Defendants next move for summary judgment by renewing their

argument in the motion to dismiss (Docket Entry # 33, pp. 13-14)
that Panagia Greek Orthodox Church is the only real party in
interest.
2-7).

(Docket Entry # 95, pp. 1-2) (Docket Entry # 96, pp.

Defendants previously argued that SSHC is not a party to

the contract and that Panagia Greek Orthodox Church is the only
entity or unincorporated association with contractual rights
sufficient to bring suit.

(Docket Entry # 33, p. 14).

Further,

defendants maintained that, because the citizenship of Panagia
Greek Orthodox Church “depends on the citizenship of all of its
members,” SSHC fails to show complete diversity.

(Docket Entry

# 33, pp. 13-14).
Rule 17(a) instructs that, “An action must be prosecuted in
the name of the real party in interest.”

Fed.R.Civ.P. 17(a).

As explained in the previous Report and Recommendation,18 the

18

For ease of reference, the legal principles are repeated
27

function of the rule is “to protect the defendant against a
subsequent action by the party actually entitled to recover, and
to insure generally that the judgment will have its proper
effect as res judicata.”

Fed.R.Civ.P. 17(a), Advisory Committee

Notes, 1966 Amendment; Prevor-Mayorsohn Caribbean, Inc. v.
Puerto Rico Marine Management, Inc., 620 F.2d 1, 4 (1st Cir.
1980).

The effect of the rule “is that the action must be

brought by the person who, according to the governing
substantive law, is entitled to enforce the right.”

6A Charles

Alan Wright et al. Federal Practice and Procedure § 1543 (3rd ed.
2010).

A real party in interest is therefore “the person

holding the substantive right sought to be enforced.”

Lopes v.

JetSetDC, LLC, 2014 WL 775243, at *6 (D.D.C. Feb. 19, 2014).

A

party that does “not possess[] a right under substantive law is
not the real party in interest with respect to that right and
may not assert it.”

Farrell Constr. Co. v. Jefferson Parish,

La., 896 F.2d 136, 140 (5th Cir. 1990).

Where, as here,

diversity jurisdiction applies, state law “determine[s] which
party holds the substantive right.”

Id.; Stichting Ter

Behartiging Van de Belangen Van Oudaandeelhouders In Het
Kapitaal Van Saybolt International B.V. v. Schreiber, 407 F.3d
34, 49 (2nd Cir. 2005) (examining “state law to determine whether

here.
28

Stichting properly possesses the right of action that it asserts
in this case”); see 6A Charles Alan Wright et al. Federal
Practice and Procedure § 1564 (3rd ed. 2010) (if “organization
lacks capacity to litigate in the state courts, it also will be
barred from a federal forum in that state”).
It is “well-established that a trade name can neither sue
nor be sued.”

Diesel Machinery, Inc. v. Manitowoc Crane Group,

777 F.Supp.2d 1198, 1213 (D.S.D. 2011) (collecting cases); see
Atlantic Microwave Corp. v. Whalen, 2011 WL 4463492, at *2
(“evidence at trial was conflicting, and would have permitted
the jury to infer that AMC contracted with Whalen under its
trade name of CDES-AMD and, therefore, was the proper party to
bring this action”); see generally Fried v. Wellesley Mazda,
2010 WL 1139322 (Mass.Dist.App.Div. March 9, 2010) (dicta noting
that, “defendants first argue, and Fried concedes, that the
default judgment entered against Wellesley Mazda is void because
Wellesley Mazda is merely a trade name of Hometown Auto, not a
separate entity subject to suit”).

Construing the record in

SSHC’s favor, a finder of fact could conclude that Panagia Greek
Orthodox Church was a trade name for SSHC.
1, ¶¶ 7-8).

(Docket Entry # 100-

Furthermore, as explained in Roman numeral I, it is

a genuine issue of material fact as to whether SSHC or Panagia
Greek Orthodox Church is the party to the contract with Artech.
29

Accordingly, defendants are not entitled to summary judgment
based on the failure to name Panagia Greek Orthodox Church as
the real party in interest under Rule 17.

Because the issue

turns upon factual disputes, defendants may raise the issue of
the real party in interest at trial or through a post-trial
motion.19
III.

Chapter 93A
SSHC moves for partial summary judgment on the chapter 93A

claim against defendants arguing that defendants materially
breached the express guarantee in the June 2009 contract.

One

of the focal points of SSHC’s chapter 93A claim concerns the
contract’s exterior waterproofing category in paragraph seven.
In paragraph seven, Artech promised to perform exterior
waterproofing consisting of four items for a cost of $16,900.
According to SSHC, Artech failed to perform the second item
(exterior power washing) and the third item (repointing all
loose and missing mortar joints) in a workmanlike manner in
breach of the express warranty thus giving rise to chapter 93A
liability under section nine.

Defendants oppose the motion for

a number of reasons, including that SSHC is not a consumer with

19

A failure to raise the issue may constitute a waiver of the
issue.
30

a section nine claim but, rather, is engaged in trade or
commerce.

(Docket Entry # 103).

Defendants also move for summary judgment on the chapter
93A claim.

First, they submit that the facts establish no more

than a mere breach of contract that does not rise to the level
of unfair or deceptive conduct.

Second, they contend that

SSHC’s failure to supplement “a ‘state the basis’ interrogatory”
forecloses SSHC from relying on any new information to support
the chapter 93A claim.

(Docket Entry # 96).

Third, they

maintain that the facts do not constitute actionable fraud,
misrepresentation or deceit that might form the basis of a
chapter 93A claim.

Finally, they argue there is no viable

chapter 93A claim against Burns as an individual.

SSHC opposes

defendants’ summary judgment motion based, in part, because it
is a “consumer” not engaged in trade or commerce and therefore
section nine rather than section 11 applies.
99).

(Docket Entry #

Defendants’ reply memorandum asserts, inter alia, that

SSHC is not a consumer entitled to bring a chapter 93A claim
under section nine.

(Docket Entry # 113).

The viability of the chapter 93A claim and the merits of
both summary judgment motions with respect to the chapter 93A
claim therefore depends on whether section nine or 11 applies.
Accordingly, this court initially examines whether SSHC is
31

eligible to bring a claim under section nine.

This court will

then consider whether summary judgment in favor of either
defendants or SSHC on the chapter 93A claim is appropriate.
A.

Applicability of Section Nine or 11.
In opposing defendants’ summary judgment motion, SSHC

identifies the following chapter 93A violations by Artech and
Burns in addition to the breach of the express guarantee:

“(1)

breach of implied warranty to do a workmanlike job; (2)
negligence; (3) false advertising; (4) deceptive advertising of
guarantees; and, (5) general misrepresentations.”
# 99) (citing 940 C.M.R. 3.00).

(Docket Entry

Section 11 of chapter 93A

provides relief for “[a]ny person who engages in the conduct of
any trade or commerce” who suffers a loss of money or property
as a result of the use “by another person who engages in any
trade or commerce” of unfair deceptive acts or practices.
Gen. L. ch. 93A, § 11.

Mass.

Under the terms of the statute, a

section 11 plaintiff is therefore a person who, inter alia,
“engages in the conduct of any trade or commerce.”
L. ch. 93A, § 11.

Mass. Gen.

Section nine, in contrast, provides relief

for “[a]ny person[] other than a person entitled to bring action
under section 11 of this chapter.”20

See Mass. Gen. L. ch. 93A,

20

A “‘[p]erson’ shall include, where applicable, natural
persons, corporations, trusts, partnerships, incorporated or
unincorporated associations, and any other legal entity.” Mass.
32

§§ 9, 11.

Sections nine and 11 are therefore “mutually

exclusive.”

Kunelius v. Town of Stow, 588 F.3d 1, 16 (1st Cir.

2009) (“the private rights of action found in sections 9 and 11
are mutually exclusive”).
That said, section two declares unlawful “unfair or
deceptive acts or practices in the conduct of any trade or
commerce.”

Mass. Gen. L. ch. 93A, § 2(a) (emphasis added).

Thus, sections nine and 11 impose liability on a defendant for
damages when the transaction “occurred in the conduct of ‘any
trade or commerce.’”

See Kunelius v. Town of Stow, 588 F.3d at

16 (“for a defendant to be liable under the statute for damages
. . ., the transaction at issue must have occurred in the
conduct of ‘any trade or commerce,’ see Mass. Gen. Laws ch. 93A,
§§ 9, 11,”); Lantner v. Carson, 373 N.E.2d 973, 977 (Mass. 1978)
(the terms in section two, “‘unfair or deceptive acts or
practices in the conduct of any trade or commerce[,]’ must be
read to apply to those acts or practices which are perpetrated
in a business context”).

“An act occurs in trade or commerce if

it is ‘perpetrated in a business context.’”

Kim v. Soule, 2014

WL 2117385, at *2 (D.Mass. May 20, 2014) (quoting Lantner v.
Carson, 373 N.E.2d at 977); accord Kunelius v. Town of Stow, 588
F.3d at 16 (proscription in section two “of ‘unfair or deceptive

Gen. L. ch. 93A, § 1.
33

acts or practices in the conduct of any trade or commerce’ must
be read to apply to those acts or practices which are
perpetrated in a business context”).
Unlike section nine, section 11 also examines whether both
the defendant and the plaintiff are “engaged in trade or
commerce.”

Kim v. Soule, 2014 WL 2117385, at *2; see Lantner v.

Carson, 373 N.E.2d at 976 (“where § 9 affords a private remedy
to the individual consumer . . ., an entirely different section,
§ 11, extends the same remedy to ‘(a)ny person who engages in
the conduct of any trade or commerce’”); accord Linkage Corp. v.
Trustees of Boston University, 679 N.E.2d 191, 206 (Mass. 1997)
(sections two and 11 impose dual inquiry, first, whether
interaction is commercial in nature and whether parties were
both engaged in “‘trade or commerce,’ and therefore acting in a
‘business context’”).

In other words, “section 11 affords no

relief to consumers and, conversely, section 9 affords no relief
to persons engaged in trade or commerce.”

Continental Insurance

Co. v. Bahnan, 216 F.3d 150, 156 (1st Cir. 2000).

As noted

above, “‘Trade or commerce’ refers to transactions in a
‘business context.’”

Feeney v. Dell Inc., 908 N.E.2d 753, 770

(Mass. 2009).
Neither party seriously disputes that Artech was acting in
a business context.

Nor do defendants seriously contend that
34

chapter 93A does not apply by virtue of the language in section
two limiting the statute to “the conduct of any trade or
commerce,” i.e., transactions perpetrated in the business
context.21

Moreover, Massachusetts courts often apply chapter

93A to similar transactions and allegedly unfair or deceptive
acts or practices in the conduct of any trade or commerce under
section 2(a).

See, e.g., Linthicum v. Archambault, 398 N.E.2d

482, 484 (Mass. 1979) (applying chapter 93A to a defendant who
“agreed to reshingle the roof” of a dwelling), overuled in part
on other grounds, Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp.,
640 N.E.2d 1101 (Mass. 1994); Giannasca v. Everett Aluminum,
Inc., 431 N.E.2d 596, 597 (Mass.App.Ct. 1982) (defendant, who
“agreed to perform various exterior work on the plaintiff’s
house” such as replacing roof and re-covering house with siding,
liable under chapter 93A when leaks occurred in ceiling and
“siding began to fall apart”).

Rather, defendants focus their

argument on the premise that SSHC is not a section nine consumer
plaintiff but, rather, is engaged in trade or commerce acting in
a business context.

In other words, the parties dispute whether

SSHC was engaged in trade or commerce and thus ineligible to
bring a section nine claim.

See Linkage Corp. v. Trustees of

21

Artech does dispute whether an unfair or deceptive acts or
practices took place.
35

Boston University, 679 N.E.2d at 207.
specific in nature.

The inquiry is fact-

Id. at 209.

An entity’s status as a charitable corporation is not, in
and of itself, dispositive of the issue of whether it was
engaged in trade or commerce and therefore acting in a business
context.

See Planned Parenthood Fed’n of Am., Inc. v. Problem

Pregnancy of Worcester, Inc., 498 N.E.2d 1044, 1051 (Mass.
1986).

Factors in determining whether a person was acting in a

business context “include the nature of the transaction, the
character of the parties and their activities, and whether the
transaction was motivated by business or personal reasons.”

All

Seasons Services, Inc. v. Comm’r of Health and Hospitals of
Boston, 620 N.E.2d 778, 779 (Mass. 1993).
Several Massachusetts cases are illustrative in determining
whether or not section 11 applies.

In All Seasons, the

defendant hospital, a charitable organization, publicly
advertised an effort to solicit bids for the operation of
vending machines and a canteen facility at the hospital.

All

Seasons Services, Inc. v. Comm’r of Health and Hospitals of
Boston, 620 N.E.2d at 779.

The hospital received three bids and

awarded the contract to a bidder which agreed to pay $4,800 per
month for the privileges.

Id.

One of the two companies who did

not receive the contract sued the hospital under chapter 93A,
36

section 11, claiming that the hospital’s bid evaluation process
was tainted.

Id.

The defendant moved for summary judgment,

claiming that, as a matter of law, it was not amenable to suit
under section 11.

Id.

The court found that the hospital was not a person engaged
in trade or commerce under section 11 because the hospital was
not acting in a business context.

See id. at 779.

A hospital

does not act in a business context when it solicits bids and
awards contracts for food and vending service.

See id.

While

these services may have turned a profit for the hospital, they
were incidental to the hospital’s primary function of providing
medical services.

See id. at 780.

In making this

determination, the court considered factors including the nature
of the transaction, the character of the parties and their
activities, and whether the transaction was motivated by
business or personal reasons.

See id. at 779; see also Kunelius

v. Town of Stow, 588 F.3d at 18 (holding that a planned
purchase, renovation and resale of property was performed in
furtherance of the core mission of a trust tasked with
conservation of land); Brodsky v. New England Sch. of Law, 617
F.Supp.2d 1, 2, 7 (D.Mass. 2009) (law school’s expulsion of
student following failing grades constituted activities in
furtherance of school’s educational mission and thus not
37

undertaken in business context); Hubert v. Melrose-Wakefield
Hosp. Ass’n, 661 N.E.2d 1347, 1349-50 (Mass.App.Ct. 1996)
(hospital’s purchase and renovation of land was not done in
business context because such activities were incidental to
hospital’s primary function of providing medical services even
though such activities had potential to generate profit).
As previously noted, however, an entity’s status as a
charitable corporation is not of itself dispositive of whether
it engaged in trade or commerce such that chapter 93A applies.
See Linkage Corp. v. Trustees of Boston University, 679 N.E.2d
at 207; Planned Parenthood Fed’n of Am., Inc. v. Problem
Pregnancy of Worcester, Inc., 498 N.E.2d at 1051.

Linkage is a

prominent example of when a charitable enterprise is engaged in
trade or commerce.

See Linkage Corp. v. Trustees of Boston

University, 679 N.E.2d at 207-08.

Linkage arose out of a

dispute in an agreement between Linkage, a corporation which
provided training programs targeted at data processing
professionals, and Boston University, a nonprofit university.
Id. at 195-96.

Linkage was hired as an independent contractor

and managed academic programs for credit and noncredit.
197, 207.

Id. at

After a successful implementation of the program, the

university terminated its contract and insisted that it was free

38

to hire Linkage’s employees despite the express no-hire
provision in the base agreement.

Id. at 195, 200.

Noting that the relationship did not involve anything that
was purely incidental to the university’s educational mission,
such as a contract for non-educational services or equipment,
the court found that the university was engaged in trade or
commerce.

Id. at 207-08.

While Boston University’s status

required that it remain a nonprofit corporation, the agreement
with Linkage provided a “‘lucrative earnings potential.’”
at 208.

Id.

“[A]n institution’s business motivations, in

combination with the nature of the transaction and the
activities of the parties” may therefore “establish a ‘business
context’” such that chapter 93A will apply.

Id. at 209.

The

university was thus engaged in trade or commerce because it was
acting in a business context in contracting with Linkage.

See

id.
Turning to the contract at issue in this litigation, a
reasonable finder of fact could find that SSHC was not acting in
a business context and therefore not engaged in trade or
commerce.

See Kunelius v. Town of Stow, 588 F.3d at 18; Brodsky

v. New England Sch. of Law, 617 F.Supp.2d at 2, 7; All Seasons
Services, Inc. v. Comm’r of Health and Hospitals of Boston, 620
N.E.2d at 780.

Similarly to how providing confections in a
39

hospital was not performed in a business context, so too could
the repair work to a church.

See All Seasons Services, Inc. v.

Comm’r of Health and Hospitals of Boston, 620 N.E.2d at 780.
Whereas both have the potential to generate a profit, a
reasonable finder of fact could find that the Church’s profit
was only incidental to providing religious services.

See id.

In this regard, a reasonable fact finder could find that section
nine rather than section 11 applies to SSHC because it was not
engaged in trade or commerce when it contracted for the repair
work.

See id.
Conversely, a reasonable finder of fact could also

determine that SSHC was acting in a business context and thus
engaged in trade or commerce.

See Linkage Corp. v. Trustees of

Boston University, 679 N.E.2d at 207-08.

In Linkage, Boston

University was acting in a business context when it contracted
with Linkage because it was motivated by a strong desire to
obtain a lucrative profit from providing educational services.
See id. at 208.

The university also terminated the contract by

creating a pretext and engaged in additional competitive
marketplace activity.

Similarly, a reasonable fact finder could

find that the repair work to the Church was done in order to
turn a profit by increasing the number of steward families
paying dues with a more welcoming environment.
40

A reasonable

fact finder could also find that the Church sought to greatly
expand the scope of the contract unjustifiably to encompass work
that was never part of the original contract and use it as a
strategy to force defendants to perform work well beyond the
scope of the original contract.

See id.

Linkage’s ability to

add value to Boston University, a determining factor in the
university contracting with Linkage, could be found analogous to
Artech’s ability to add value to the Church.

See id.

A genuine issue of material fact therefore exists as to
whether SSHC was acting in a business context.

See id.; Hubert

v. Melrose-Wakefield Hosp. Ass’n, 661 N.E.2d at 1349-50.

A

reasonable finder of fact could find that SSHC contracted repair
work in furtherance of its core mission to provide religious
services and was thus not acting in a business context.

See

Hubert v. Melrose-Wakefield Hosp. Ass’n, 661 N.E.2d at 1349-50;
(Docket Entry # 107, p. 13).

Conversely, a reasonable finder of

fact could find that SSHC contracting repair work was undertaken
in order to increase revenue which, in combination with the
Church’s activities, thus constituted acting in a business
context.

See Linkage Corp. v. Trustees of Boston University,

679 N.E.2d at 207.
For purposes of defendants’ and SSHC’s summary judgment
motions and viewing the record in favor of the particular non41

movant, a genuine issue of material fact therefore exists as to
whether section nine or section 11 applies.

Because a finder of

fact could conclude that the more plaintiff favorable section
nine standard applies, defendants must show that no reasonable
finder of fact could find them liable under section nine in
order to obtain summary judgment on the chapter 93A claim.
Conversly, a finder of fact could conclude that the more
defendant favorable section 11 standard applies and that chapter
nine does not apply.

In opposing SSHC’s summary judgment

motion, defendants’ argument that SSHC is not a consumer is
therefore well founded because a fact finder could conclude that
SSHC was engaged in trade or commerce.

SSHC seeks summary

judgment solely on the section nine chapter 93A claim.
Accordingly, in light of the foregoing disputed issue of
material fact, SSHC is not entitled to summary judgment on the
chapter 93A claim under section nine.22
B.

Defendants’ Liability under Section Nine
Examining defendants’ liability under section nine, chapter

93A “proscribes ‘unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or

22

SSHC’s remaining arguments relative to seeking summary
judgment under its section nine chapter 93A claim therefore need
not be addressed. The amended complaint pleads only a violation
of section nine.
42

commerce.’”

Juárez v. Select Portfolio Servicing, Inc., 708

F.3d 269, 280 (1st Cir. 2013) (quoting chapter 93A, section 2).
“‘A practice is unfair if it is within the penumbra of some
common-law, statutory, or other established concept of
unfairness; is immoral, unethical, oppressive, or unscrupulous;
and causes substantial injury.’”

Young v. Wells Fargo Bank,

N.A., 717 F.3d 224, 240 (1st Cir. 2013) (addressing liability
under section nine and quoting Linkage Corp. v. Trustees of
Boston University, 679 N.E.2d at 209).

A practice is deceptive

“‘if it “could reasonably be found to have caused a person to
act differently from the way he or she otherwise would have
acted.”’”

Aspinall v. Philip Morris Companies, Inc., 813 N.E.2d

476, 486 (Mass. 2004) (discussing liability under section nine)
(brackets omitted).

A successful section nine claim “requires,

at a minimum, a showing of (1) a deceptive act or practice on
the part of the seller; (2) an injury or loss suffered by the
consumer; and (3) a causal connection between the seller’s
deceptive act or practice and the consumer’s injury.”

Casavant

v. Norwegian Cruise Line, Ltd., 919 N.E.2d 165, 168-69
(Mass.App.Ct. 2009).

“‘Although whether a particular set of

acts, in their factual setting, is unfair or deceptive is a
question of fact, the boundaries of what may qualify for
consideration as a Chapter 93A violation is a question of law.’”
43

LimoLiner, Inc. v. Dattco, Inc., 2014 WL 4823877, at *7 (D.Mass.
Sept. 24, 2014) (internal citations omitted).
Defendants are correct that a mere breach of contract does
not warrant chapter 93A relief.

See Woods v. Wells Fargo Bank,

N.A., 733 F.3d 349, 358 (1st Cir. 2013) (addressing chapter 93A
claim under section nine).

Rather, the “facts must illustrate

something beyond a mere good faith dispute, failure to pay, or
simple breach of contract.”

Id.; accord Juárez v. Select

Portfolio Servicing, Inc., 708 F.3d at 281.

For example, when

a party to a contract “employs a breach of contract to gain an
unfair advantage over the other, the breach ‘has an extortionate
quality that gives it the rancid flavor of unfairness.’”

Arthur

D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 55 (1st Cir.
1998); accord Woods v. Wells Fargo Bank, N.A., 733 F.3d at 358
(internal citations omitted); Juárez v. Select Portfolio
Servicing, Inc., 708 F.3d at 281.

Likewise, “‘conduct in

disregard of known contractual arrangements and intended to
secure benefits for the breaching party constitutes an unfair
act or practice for c. 93A purposes.’”

Ramos v. International

Fidelity Insurance Co., 34 N.E.3d 737, 741 (Mass.App.Ct. 2015)
(section nine, chapter 93A claim quoting Anthony’s Pier Four,
Inc. v. HBC Associates, 583 N.E.2d 806, 821 (Mass. 1991)

44

(internal citation omitted), review denied, 34 N.E.3d 737
(2015).
Here, it is doubtful that defendants’ ongoing failure to
rectify the defects identified by Lofgren and unfulfilled
promises to perform the repairs amounts to more than a mere
breach of contract.

That said, however, SSHC’s chapter 93A

theories of recovery are not confined to a mere breach of the
June 2009 contract.

Rather, SSHC maintains inter alia that

defendants breached the express guarantee and the implied
warranty to do a workmanlike job.

(Docket Entry # 99, pp. 18-

22).
Regulation 3.08(2) of chapter 940 of the Code of
Massachusetts Regulations (“regulation 3.08(2)”) provides that,
“It shall be an unfair and deceptive act or practice to fail to
perform or fulfill any promises or obligations arising under a
warranty.

The utilization of a deceptive warranty is unlawful.”

940 C.M.R. 3.08(2); see also Knapp Shoes, Inc. v. Sylvania Shoe
Mfg. Corp., 640 N.E.2d at 1103 (noting “[b]y language in §2(c)
of G.L. c. 93A, the Attorney General is authorized to make rules
and regulations ‘identify[ing] particular business practices as
falling within [the scope of §2(a)]’”); Casavant v. Norwegian
Cruise Line, Ltd., 919 N.E.2d at 169 (Mass.App.Ct. 2009)
(although chapter “93A does not define what acts and practices
45

are unfair or deceptive, § 2(c) of c. 93A specifically
authorizes the Attorney General to promulgate regulations making
these determinations”).

A breach of warranty is not sufficient

grounds for liability under section 11 because regulation
3.08(2) was intended to protect consumers, not those engaged in
trade or commerce.

See Knapp Shoes, Inc. v. Sylvania Shoe Mfg.

Corp., 640 N.E.2d at 1104.

A breach of warranty is, however,

sufficient grounds to recover under section nine.

See Maillet

v. ATF-Davidson Co., Inc., 552 N.E.2d 95, 98, 100 (Mass. 1990);
see also Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 640
N.E.2d at 1105 (“[t]he regulation, read as a whole, is rooted in
§ 9 of G.L. c. 93A.”).

Because section nine affords more

protection than section 11 and because an issue of fact remains
as to which section applies, defendants must therefore prove
that no reasonable fact finder could find that there was a
breach of warranty under section nine to be entitled to summary
judgment on the chapter 93A claim.
As stated in the express guarantee, “Artech Church
Interiors guarantees all workmanship for a period of one year
from the date of project completion.”

(Docket Entry # 90-5).

Regulation 3.01 provides that, “[A]ny verbal or written
representation, as well as any description of the goods, or
sample or model of the goods which is made part of the basis of
46

the bargain creates an express warranty.”

940 C.M.R. 3.01.

Regulation 3.01 also clarifies that, “The terms ‘warranty’ or
‘guarantee’ . . . are synonymous.”

940 C.M.R. 3.01.

Regulation

3.01 therefore encompasses the express representation
guaranteeing the workmanship for a one year period.
Exterior waterproofing, as outlined in the contract, is
subdivided into four categories.

The four subcategories for

exterior waterproofing included power washing and repairing all
loose and missing mortar joints.

In Republic Floors of New

England, Inc. v. Weston Racquet Club, Inc., 520 N.E.2d 160, 162
(Mass.App.Ct. 1988), a racquet club brought a breach of warranty
claim against a surface installation company.

The contract

included a provision that the installer would guarantee the
surface installation for a period of two years “with respect to
all workmanship and performance of the surface . . . against
such problems as debonding, delamination, separation, bubbles,
crazing, cracks, discoloration, and dead spots.”

Id. at 163.

Within the period of the warranty, the racquet club noticed
bubbles, which persisted.

Id.

After the installer refused to

make repairs, the racquet club brought suit for breach of
warranty.

Id.

The court overturned a jury verdict because the

installer breached the express warranty guarantee by refusing to
fix the floor bubbling.

Id. at 164.
47

Here, at a minimum, the

facts allow a reasonable fact finder to find that defendants’
failure to repair and rectify the loose and missing mortar
breached the express guarantee.

It therefore remains a

genuinely disputed material fact as to whether defendants
breached the express warranty.

See Maillet v. ATF-Davidson Co.,

Inc., 552 N.E.2d at 98, 100; see also Knapp Shoes, Inc. v.
Sylvania Shoe Mfg. Corp., 640 N.E.2d at 1105; 940 C.M.R.
3.08(2).

Summary judgment in defendants’ favor on the chapter

93A claim is therefore inappropriate.
C.

Local Rule 26.5
Relying on Local Rule 26.5(c)(8), defendants next seek to

preclude SSHC from using any newly produced information on
summary judgment or at trial that was not disclosed in response
to a state the basis interrogatory or a supplemental response
under Fed.R.Civ.P. 26(e) (“Rule 26(e)”).23

Defendants further

23

Local Rule 26.5(c)(8) provides in relevant part:
(8) State the Basis. When an interrogatory calls upon a
party to “state the basis” of or for a particular claim,
assertion, allegation, or contention, the party shall
(a) identify each and every document (and, where
pertinent, the section, article, or subparagraph
thereof), which forms any part of the source of the
party’s information regarding the alleged facts or
legal conclusions referred to by the interrogatory;
(b) identify each and every communication which forms
any part of the source of the party’s information
regarding the alleged facts or legal conclusions
referred to by the interrogatory;
(c) state separately the acts or omissions to act on
48

submit that the amended complaint fails to set out any unfair or
deceptive conduct in a non-conclusory manner.

(Docket Entry #

96, pp. 9-13).
In response to the state the basis interrogatory, SSHC
stated that, “the Church refers to the bases described in the
Amended Complaint.”

(Docket Entry # 55-1, p. 4).

Furthermore,

SSHC states in its general objections to the interrogatories
that, “[p]ursuant to Fed. R. Civ. P. 33, Church incorporates
into its answers hereto all information previously produced in
automatic disclosure, dated March 31, 2013 and supplements
thereto.”

(Docket Entry # 55-1, p. 2).

The amended complaint, which SSHC identified in answering
the state the basis interrogatory, references the defects in the
exterior waterproofing category and its subcategories in the
contract and defendants’ repeated failures to correct such
defects and perform corresponding requested repairs as unfair or
deceptive acts or practices.

the part of any person (identifying the acts or
omissions to act by stating their nature, time, and
place and identifying the persons involved) which form
any part of the party’s information regarding the
alleged facts or legal conclusions referred to in the
interrogatory; and
(d) state separately any other fact which forms the
basis of the party’s information regarding the alleged
facts or conclusions referred to in the interrogatory.
49

The body of the amended complaint and the chapter 93A
demand letter attached to the amended complaint include the
allegation that Artech breached the express provisions of the
contract by failing to waterproof the exterior of the Church.
They also disclose that Artech breached the express warranty by
failing to resolve the water intrusion in response to SSHC’s
notification.

(Docket Entry # 9) (Docket Entry # 9-31).

The

amended complaint attached documentation that formed the basis
for these unfair or deceptive acts or practices, namely,
Wilkin’s expert report.

(Docket Entry # 9-33).

The expert

report, in turn, elucidates the defective repointing and the
amended complaint quotes and highlight Wilkins’ conclusions that
water penetrating the masonry through poorly pointed and open
masonry joints was likely the main source of the leakage.
(Docket Entry # 9, ¶ 57) (Docket Entry # 9-33).

Accordingly,

SSHC complied with Local Rule 26.5(c)(8).
Even if SSHC did not identify specific documents and
communications, the information that forms the basis to deny
defendants summary judgment was made known to them during
discovery.

SSHC has a duty to supplement incomplete or

incorrect information in the interrogatory answer “if the
additional or corrective information has not otherwise been made
known to the other parties during the discovery process.”
50

Fed.R.Civ.P. 26(e)(1)(A) (emphasis added).

Any additional

information was made known to defendants during discovery.

For

example, Wilkins and Teller were deposed in June 2015 and
defendants’ attorney attended both depositions.

(Docket Entry

## 90-55, 90-57).
In short, defendants’ arguments that SSHC failed to provide
the information required under Local Rule 26.5 or that the
amended complaint fails to articulate any unfair or deceptive
conduct in a non-conclusory fashion are not well taken.
Accordingly, there is no basis to exclude newly produced
information from the summary judgment record.24
D.

Burns’ Chapter 93A Liability
Defendants also move for summary judgment on the chapter

93A claim against Burns.

They maintain that SSHC failed to show

Burns’ participation in the unlawful conduct or his knowledge of
the unlawful acts.

(Docket Entry # 96, pp. 16-19).

SSHC

asserts that Burns, as a corporate officer, is subject to
chapter 93A liability in light of his personal involvement with
the misconduct and deficient repair work.

(Docket Entry # 99,

pp. 14-15).

24

This court expresses no opinion on exclusion of newly
produced information at trial because this court is not the
trial court.
51

An officer of a corporation can be a proper defendant for
purposes of a chapter 93A claim.

See Bolen v. Paragon Plastics,

Inc., 754 F.Supp. 221, 228 (D.Mass. 1990).

Officers may be held

liable under chapter 93A if they are acting within the scope of
their authority.

See Standard Register Co. v. Bolton-Emerson,

Inc., 649 N.E.2d 791 (Mass.Ct.App. 1995).

An individual’s

status as a corporate officer, however, is not in itself a
sufficient basis for a successful chapter 93A claim against him.
See Saveall v. Adams, 631 N.E.2d 561, 563 (Mass.App.Ct. 1994).
Imposing liability on individual corporate officers requires
either knowledge of unlawful acts or actual participation in
acts made unlawful by chapter 93A.

See Nader v. Citron, 360

N.E.2d 870, 875 (Mass. 1977), rev’d on other grounds,
Iannacchino v. Ford Motor Co., 888 N.E.2d 879 (Mass. 2008).
Further, corporate officers can be found liable under
chapter 93A when their actions within their scope of employment
are what give rise to those claims.

See Standard Register Co.

v. Bolton-Emerson, Inc., 649 N.E.2d at 794-95.

In Standard

Register, the defendant manufacturing company was asked to
produce a label machine for the plaintiff company.

Id. at 792.

The president and vice president of the manufacturing company,
co-defendants in the litigation, assured the plaintiff that the
label machine would be delivered by a date corresponding with
52

the plaintiff’s move to a new production facility.

Id.

The

president and vice president knew that these representations
were false and continued to make representations even though
their manufacturing company was undergoing financial
difficulties that rendered construction of the label machine
impossible.

Id.

The president and vice president appealed a

judgment that held them personally liable claiming that they
should be shielded from liability because only their
manufacturing company was a party to the contract with the
plaintiff.

Id. at 793.

The court affirmed the judgment,

holding that the two officers were acting within the scope of
their authority as officers when they made misrepresentations in
violation of chapter 93A.

See id. at 794-95.

As explained in

Standard Register, when the actions of corporate officers are
what give rise to the chapter 93A claim, those officers can be
held personally liable for those actions.

See id.

As previously noted, however, an individual’s status as a
corporate officer is not in itself enough to create personal
liability when the corporation may be liable.

See Boyd v.

Camardo, 2003 WL 2004359, at *2 (1st Cir. May 2, 2003);25 Saveall

25

This case, quoted at length in defendants’ memorandum in
support of summary judgment, is unpublished. Federal Rule of
Appellate Procedure 32.1(a) states that, “A court may not
prohibit or restrict the citation of federal judicial opinions
that have been designated as ‘unpublished’ . . . and issued on
53

v. Adams, 631 N.E.2d at 563.

In Boyd v. Camardo, the plaintiff

alleged that he was misled to believe that the defendant’s
employer, EUW, was associated with Wurlitzer, a piano and
jukebox manufacturer.

Boyd v. Camardo, 2003 WL 2004359, at *1.

The plaintiff alleged that this misrepresentation stemmed from
EUW’s statements in certain magazine advertisements.

Id.

The

court affirmed summary judgment in favor of the defendant,
noting that while the defendant held various positions at EUW,
including director, chief executive officer, and president, he
was not personally liable for the misrepresentation.

Id.

The

court held that there was no evidence that the defendant
participated in the creation or submission of the advertisements
that allegedly harmed the plaintiff.26

Id.

Here, Burns exchanged multiple drafts of the contract with
Lofgren, the final of which included the express guarantee.
Cave, who performed or subcontracted the performance of the
work, testified that he reported to Burns while he was

or after January 1, 2007.” The advisory committee notes explain
that “the citation of unpublished opinions issued before January
1, 2007, will continue to be governed by the local rules of the
circuits.” Fed.R.App.P. 32.1, Advisory Committee Notes, 2006
Adoption, subdivision (a). In the First Circuit, a court may
consider unpublished opinions “for their persuasive value but
not as binding precedent.” 1st Cir. R. 32.1.0(a). Although
considered for its persuasive value, Boyd is therefore not
binding precedent.
26
The plaintiff in Boyd did not allege a cause of action under
chapter 93A.
54

performing the Church renovations.
69-70).

(Docket Entry # 90-8, pp.

After the leaks began, Burns went back to visit the

Church and allegedly failed to take remedial action in the
spring.

Viewing the record in SSHC’s favor, a fact finder could

find that Burns’ knowledge of the faulty construction work
and/or his conduct in not responding to Lofgren’s emails about
the leaks or failing to take other requested remedial action
gave rise, inter alia, to a breach of the express guarantee.
See Standard Register Co. v. Bolton-Emerson, Inc., 649 N.E.2d at
794-95.

Like the defendants in Standard Register and again

viewing the record in SSHC’s favor, a finder of fact could find
that Burns’ failure to provide the warranted services was done
in the scope of his authority.

See id.

As explained

previously, a reasonable fact finder could find that defendants’
failure to repair and rectify the loose and missing mortar
breached the express guarantee.

Overall, a fact finder could

thus find Burns’ personally liable.

See id.; see also Christian

Book Distributors, Inc. v. Wallace, 760 N.E.2d 735, 736-38
(Mass.App.Ct. 2001) (affirming judgment finding corporation
president personally liable because president was acting within
the scope of his authority when he delivered false written
representations to the plaintiff).

The decisions in the Boyd

and Saveall cases relied upon by defendants are therefore
55

distinguishable because the defendant officers were not found
personally liable because, unlike the circumstances here, they
did not take part in the conduct giving rise to the chapter 93A
claims against their corporations.

See Boyd v. Camardo, 2003 WL

2004359, at *2; Saveall v. Adams, 631 N.E.2d at 563 (no
liability of president or treasurer under chapter 93A where
neither made misrepresentations).

Accordingly, summary judgment

on the chapter 93A claim against Burns is inappropriate.
IV.
A.

Cave’s Summary Judgment Motion
Contribution
Cave moves for summary judgment on the contribution claim

because SSHC’s experts failed to establish that “the missing
mortar was more likely a result of Cave’s negligence” as opposed
to other likely causes.

(Docket Entry # 93).

Cave notes that

Wilkin identified rust imbedded in the steel tower walls
contributed “‘to the stone joint cracking.’”
93, p. 6).

(Docket Entry #

Defendants maintain that if Cave performed the work

improperly and caused damage, then he is a joint tortfeasor
responsible for his share of contribution.

(Docket Entry #

101).
As summarized in the factual background, Wilkin opined
that, “[T]he main source of the leakage into the sanctuary of
the church appears to be from water penetrating the stone
56

masonry through poorly pointed and open mortar joints and
cracks.”

(Docket Entry # 90-56, p. 4).

Wilkin also opined,

“with no hesitation,” that the “work was also poorly done and
not in accordance with industry standards.”
56, p. 4).

(Docket Entry # 90-

Wilkin’s report also concludes that the recent

repointing covered less than 1% of the joints and that an
estimated 50% of the joints were defective thereby “allowing
water to penetrate through the face of the masonry entering in
to the wall system and reach[ing] the interior.”
# 90-56, p. 4).

(Docket Entry

Teller, as also set out in the factual

background, rendered a similar opinion with respect to the
incorrectly performed pointing.
With respect to the foundation for Wilkin’s opinions, he
conducted a visual inspection of the building along with Foley
in May 2012. (Docket Entry # 90-55, pp. 33-34).

He examined the

masonry and, in light of the deterioration of the surface,
cracking and sealant, posited that the sealant was approximately
ten years old.

(Docket Entry # 90-55, p. 39).

His visual

observations of the joints and repointing allowed him to
conclude that certain repointing work appeared fresher or more
recent than other repointing work and that the repointing work
was not done correctly.

(Docket Entry # 90-55, pp. 82-83).

Overall, the report provides a basis for a reasonable fact
57

finder to conclude that the pointing by Machnik and overseen by
Cave was poorly performed, covered less than 1% of the joints,
and was not in accordance with industry standards; and that
water penetrating the stone masonry through the poorly pointed
and open mortar joints was the source of the water leaking into
the Church less than five months after the completion of the
work.

(Docket Entry # 90-56).
That said, as the facts elucidated by Cave (Docket Entry #

94, ¶¶ 19-24) illustrate, Wilkin’s report notes the existence of
rust in the structural steel in the tower walls as “contributing
to the stone joint cracking.”27

(Docket Entry # 90-56, p. 3).

In addition, Wilkin testified at his deposition that it is “a
good idea” to fix rusted steel before undertaking repointing.
(Docket Entry # 90-55, pp. 45-46).
Cave also takes issue with Teller’s opinion regarding power
washing.

During his deposition, Teller acknowledged that he did

not have first hand knowledge that sealants removed during the
power washing were present before the power washing and were

27

Wilkin’s report sets out 12 observations regarding his
evaluation of the masonry before the section of the report
captioned “Conclusions and Recommendations” in which he rendered
his opinions. The evaluation of the rusting in the steel beams
is one of these 12 observations. During his deposition, Wilkin
characterized a statement in his report that “‘rust formation is
likely jacking the masonry up or contributing to the stone joint
cracking’” as his opinion. (Docket Entry # 90-55, p. 50).  
58

acting as sealants.

His expert report nevertheless states that

the power washing “process removed loose mortar” and “aging
sealant” thereby exposing cracks and open joints that “allowed
moisture into the system to a much greater degree.”

(Docket

Entry # 90-58, pp. 4-5) (Docket Entry # 90-57, pp. 94-100).
When asked if he had any information that the power washing was
done improperly, Teller testified that he did not have such
information and “was not there” to witness the washing.
Entry # 90-57, pp. 94-95).

(Docket

On the other hand, Teller explained

that he saw residue of “urethane caulking on the joints”
throughout the building and that “it appeared to have been
removed.”

(Docket Entry # 90-57, p. 99).

He also visited the

property on three occasions in 2012, observed the masonry and,
on the second visit, accessed the roof.

(Docket Entry # 90-57,

pp. 60-63) (Docket Entry # 90-58, p. 1).

His visual inspection

of the building lead him to distinguish between the more recent
repointing based on its lighter color.

He also found “a lot of

loose and missing” mortar as well as cracked mortar that was
“installed incorrectly.”

(Docket Entry # 90-57, pp. 80-81).

Teller’s report further notes that he “saw photos of the
pressure washer used to clean the building.”
90-58, pp. 1-2).

59

(Docket Entry #

In contrast to the visual inspections in 2012 by Wilkin and
Teller, Machnik, who performed the actual repointing, testified
that he used a joiner tool to finish repointing joints to “match
the existing joints.”

(Docket Entry # 94-13).

Bourikas

testified that he could not “tell by looking at the church [the]
new mortar versus [the] old mortar.”
49).

(Docket Entry # 115-1, p.

He also testified that he did a final walkthrough after

Cave completed the punch list in October 2009 and was satisfied
with the work and the aesthetics.
17, 49).

(Docket Entry # 115-1, pp.

Finally, as previously noted, Bourikas described that

Cohasset can experience horizontal driven rain and the wind is
like a freight train.28
In light of these facts, Cave argues that defendants fail
to demonstrate that Cave’s conduct, including the allegedly
poorly performed repointing of loose and missing mortar, was a
result of Cave’s work.

Citing Alholm v. Town of Wareham, 358

N.E.2d 788, 791 (Mass. 1976), Cave maintains that defendants
fail to show “a greater likelihood that their injuries were
caused by a condition caused by the Defendant’s negligence or
breach of contract rather than by some other cause for which it
is not liable.”29

(Docket Entry # 93).

As explained in Alholm:

28

See footnote 11.
The Alhom case is the only legal authority Cave cites to
present the argument.
60
29

The plaintiffs had the burden of proving that the alleged
nuisance or negligence was the proximate cause of their
injuries. It was incumbent on the plaintiffs to demonstrate
a greater likelihood that their injuries were caused by a
nuisance maintained by the defendant town or by its
negligence than by some other cause for which it was not
liable.
Id.
Contribution claims arise when “two or more persons become
jointly liable in tort for the same injury.”

Mass. Gen. L. ch.

231B, § 1; LeBlanc v. Logan Hilton Joint Venture, 974 N.E.2d 34,
42 (Mass. 2012) (“‘[w]ithout liability in tort there is no right
of contribution’”) (quoting Berube v. Northampton, 602 N.E.2d
560, 562 (Mass. 1992)).

“Under long-established Massachusetts

law, causation in tort must be proved by a preponderance of the
evidence.”

Lynch v. Merrell-Nat’l Laboratories, Div. of

Richardson-Merrell, Inc., 830 F.2d 1190, 1197 (1st Cir. 1987).
On summary judgment, the defendant, i.e., Cave, therefore “wins
if the plaintiffs fail to show ‘that there was a greater
likelihood or probability that the harm complained of was due to
causes for which the defendant was responsible than from any
other cause.’”

Id.; accord Alholm v. Town of Wareham, 358

N.E.2d at 791.
Considering the entire record, including the facts cited by
Cave (Docket Entry # 94, ¶¶ 19-30), a reasonable fact finder
could readily conclude that the defective repointing proximately
61

caused the water damage to the Church in early 2010.

More

specifically, although the facts cited by Cave may weaken the
opinions proffered by Wilkin and Teller, such opinions still
provide a sufficient basis to conclude there is a greater
likelihood that the poorly performed repointing and/or failure
to repoint loose and missing mortar was caused by the water
intrusion experienced by the Church in early 2010.
It is also well settled that experts can “express opinions
based on facts about which they lack personal knowledge.”
Williams v. Illinois, 132 S.Ct. 2221, 2234 (2012).

Rule 702,

Fed.R.Evid., requires that “opinion testimony rest on
‘sufficient facts or data’ and reflect the use of ‘reliable
principles and methods’ appropriate to the expert’s field.”
Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007) (quoting
Fed.R.Evid. 702).

Rule 703, Fed.R.Evid., allows an expert to

base an opinion on inadmissible facts or data “[i]f experts in
the particular field would reasonably rely on those kinds of
facts or data in forming an opinion.”

Fed.R.Evid. 703.

Where,

as here, “the factual underpinning of an expert’s opinion is
weak, it is a matter affecting the weight and credibility of the
testimony-a question to be resolved by the jury.”30

Int’l

30

This court expresses no opinion about the admissibility of
either Wilkin’s or Teller’s opinion testimony at trial. Rather,
this court makes these findings solely to resolve the summary
62

Adhesive Coating Co., Inc. v. Bolton Emerson Int’l, Inc., 851
F.2d 540, 545 (1st Cir. 1988); United States ex rel. Dyer v.
Raytheon Co., 2013 WL 5348571, at *9 (D.Mass. Sept. 23, 2013)
(“disputes over the facts on which an expert bases his opinions
go to the weight of the testimony, not its admissibility”)
(internal citation omitted).

Cave’s arguments therefore do not

warrant summary judgment on the contribution claim in Count I of
the third party complaint.
B.

Common Law Indemnity
In moving for summary judgment on the indemnity claim in

Count II of the third party complaint, Cave maintains that the
circumstances do not give rise to either implied or tort-based
indemnification.

(Docket Entry # 93, pp. 3-5).

Defendants rely

on both forms of indemnity as a basis for liability in Count II.
(Docket Entry # 101).
1.

Implied Contractual Indemnity
Cave argues that the parties’ relationship of a contractor

(Artech) and a subcontractor (Cave) lack the special factors or
relationship normally associated to imply contractual indemnity.
Artech and Burns submit that “Cave implicitly admits there was a
contract” between Artech and Cave and reason that a trial is

judgment motions. It is the province of the trial judge to
assess and determine the admissibility at trial of any expert
opinion testimony.
63

therefore required to ascertain the content and scope of the
contract.31

(Docket Entry # 101, p. 9) (bolding omitted).

The

series of Cave’s scope of work submissions to the Church, Cave’s
$87,700 invoice for the project as well the other invoices
and/or purchase orders Cave submitted to Artech for the project
evidencing the parties’ course of performance provide an ample
basis for a finder of fact to find the existence of an implied
in fact contract between Cave and Artech.

Without citing any

particular provision of the Artech/Cave contract, Artech and
Burns quote portions of the amended complaint in the third party
complaint that allege the deficiencies in the repair work by
Cave, Jim’s Pro, the construction crew and/or Machnik as well as
Cave’s statements to undertake repairs at no cost and make the
Church “tight.”

Artech and Burns also submit that Artech

31

To establish such a contract and its terms, defendants
identify documents including: draft contracts or quotes between
Artech and Lofgren exchanged prior to the June 18, 2009 contract
designating Cave as Artech’s project manager; quotes by Cave
directed to “Greek Panagia Parish” or Lofgren prior to the June
18, 2009 contract; an invoice dated June 23, 2009 for the
restoration work from Cave to Artech; excerpts of Burns’
deposition referring to purchase orders and payments as the
contract between Cave and Artech; and the June 24, 2009 purchase
order. (Docket Entry ## 102-1 to 102-9) (Docket Entry # 102, ¶
5) (Docket Entry # 94-4). Cave also admits a number of
allegations made in the third party complaint. (Docket Entry #
53, ¶¶ 17(partial admission), 18, 20, 31, 32) (Docket Entry #
63, ¶¶ 17, 18, 20, 31, 32). In addition to the June 23, 2009
invoice, Cave sent several additional invoices thereafter for
the work he did to Artech, which it paid. (Docket Entry # 90-8,
pp. 21-24).
64

contracted with Cave for Cave to perform, execute and carry out
all of the work on the project for the Church.

Based on the

record, the terms of the contract are an issue of fact and a
reasonable finder of fact could conclude that the Artech/Cave
contract delegated all of the work to Cave with Artech retaining
little, if any, control.
In Massachusetts, contractual indemnity may be express or
implied.

See Fall River Housing Authority v. H.V. Collins Co.,

604 N.E.2d 1310, 1312-13 (Mass. 1992); accord Decker v. Black
and Decker Mfg. Co., 449 N.E.2d 641, 644-45 (Mass. 1983).
Implied contractual indemnity arises from the relationship of
the parties.

Fall River Housing Authority v. H.V. Collins Co.,

604 N.E.2d at 1313 (“contractual right to indemnity arises from
the relationship between the parties”) (citing Araujo v. Woods
Hole, Martha’s Vineyard, Nantucket S.S. Authority, 693 F.2d 1, 2
(1st Cir. 1982)).

More specifically, implied contractual

indemnity arises “only when there are ‘special factors’
surrounding the contractual relationship which indicate an
intention by one party to indemnify another in a particular
situation.”

Id. (citing Decker v. Black and Decker Mfg. Co.,

449 N.E.2d at 643-44, citing, as persuasive, Araujo v. Woods
Hole, Martha’s Vineyard, Nantucket S.S. Auth., 693 F.2d at 2-3).

65

As aptly pointed out by Cave, the relationship between a
general contractor and a subcontractor ordinarily does not imply
an obligation by the subcontrator to indemnify the general
contractor for the latter’s liability to the party to the
original contract with the general contractor.

See Fall River

Housing Authority v. H.V. Collins Co., 604 N.E.2d at 1313.
Based on the summary judgment record for Cave’s summary judgment
motion, the parties’ relationship as a general contractor and
subcontractor under the Artech/Cave contract does not indicate
an intention that Cave would indemnify Artech for damages
arising from Cave’s failure to perform the contract, making
extra-contractual promises or guarantees to make the Church
watertight, or any negligent performance of the contract.

In

Fall River Housing, the general contractor relied on a provision
in its contract with the subcontractor that an express indemnity
provision did not “‘reduce any other right or obligation of
indemnity which would otherwise exist.’”

Id. at 1312.

The SJC,

however, rejected the provision as too vague to evidence an
intent by the subcontractor to indemnify the general contractor
for the repair work.

Id. at 1313 (finding no basis to impose

implied contractual indemnity based on the parties’
relationship).

Fall River Housing set out a number of examples

of “‘special factors,’” none of which apply to the circumstances
66

in the case at bar.

See id. at 1313 (lessor’s agreement to

repair implied obligation to indemnify lessee; town agreement to
provide police for fireworks implied obligation to indemnify
fireworks company); see also New Bedford Gas and Edison Light
Co. v. Maritime Terminal, Inc., 405 N.E.2d 653, 655 (Mass. 1980)
(finding “nothing in the relationship” of electric utility and
its customer “to warrant an implication of an obligation on
Maritime to indemnify Edison against Edison’s loss” based on
tort action brought by Maritime’s injured employee).

Here, as

in Fall River Housing, the relationship of the parties fails to
reflect any special factors indicating their intent that Cave
would indemnify Artech.
Artech and Burns’ argument that Artech did not retain any
control over Cave’s work and that Cave executed and completed
all of the work may provide a basis to impose tort-based
indemnity outside the context of personal injuries in a number
of other jurisdictions32 and in the context of personal injuries
in Massachusetts.33

As the foregoing cases uniformly illustrate,

32

See SEI Investments Global Funds Services v. Citibank, N.A.,
100 F.Supp.3d 447, 455 (E.D.Pa. 2015); 17 Vista Fee Associates
v. Teachers Insurance and Annuity Association of America, 693
N.Y.S.2d 554, 558 (N.Y.App.Div.1st Dept. 1999).
33
See Ferreira v. Chrysler Group LLC, 13 N.E.3d 561, 567 (Mass.
2014); Decker v. Black and Decker Mfg. Co., 449 N.E.2d at 643644; Rathbun v. W. Massachusetts Electric Co., 479 N.E.2d 1383,
1385 (Mass. 1985). Cave does not seek summary judgment on the
tort-based indemnity claim on the basis that it does not apply
67

however, implied contractual indemnity in Massachusetts is
grounded on the parties’ relationship as opposed to the
derivative or constructive liability of defendants to SSHC for
Cave’s wrongful acts.

See Greater Boston Cable Corp. v. White

Mountain Cable Constr. Corp., 604 N.E.2d 1315, 1317 (Mass. 1992)
(depicting “general rule for tort-based indemnity” as
“‘permitted only when one does not join in the negligent act but
is exposed to derivative or vicarious liability for the wrongful
act of another’”); see also Decker v. Black and Decker Mfg. Co.,
449 N.E.2d at 644-45 (discussing indemnity for derivatively or
constructively liable indemnitee separately from implied
contractual indemnity); Araujo v. Woods Hole, Martha’s Vineyard,
Nantucket S.S. Auth., 693 F.2d at 2 (distinguishing between
tort-based indemnity and express or implied contractual
indemnity); Cumis Insurance Society Inc. v. BJ’s Wholesale Club,
Inc., 2005 WL 6075375, at *6 (Mass.Super. Dec. 7, 2005)
(indemnity arises in three circumstances: “(1) an express
agreement; (2) a contractual right implied from the nature of
the relationship between the parties; and (3) a tort-based right
where one party is held derivatively or vicariously liable for

outside the realm of personal injury tort actions. See Nicolaci
v. Anapol, 387 F.3d 21, 27 (1st Cir. 2004). Notwithstanding the
ability, see Fed.R.Civ.P. 56(f), this court declines to raise
and address the issue sua sponte.
68

the wrongful act of another”).

Simply stated, tort

indemnification wherein a person “‘does not join in the
negligent act but is exposed to derivative or vicarious
liability for the wrongful act of another’ . . . exists
independently of statute, and whether or not contractual
relations exist between the parties.”

Fireside Motors, Inc. v.

Nissan Motor Corp. in U.S.A., 479 N.E.2d 1386, 1388 (Mass.
1985).
As to implied contractual indemnity, Artech and Burns next
assert that such indemnity is not subject to summary judgment
because a trial is required to establish “what is in the
contract and what is not.”

(Docket Entry # 101, p. 9).

Artech

and Burns, as the summary judgment targets and the third party
plaintiffs bringing the indemnity claim, however, have the
underlying burden to establish the elements of the claim at
trial.

See Hartford Casualty Insurance Co. v. Halliburton Co.,

826 So.2d 1206, 1218 (Miss. 2001) (indemnitee plaintiff and nonmovant on summary judgment had burden to offer evidence to
withstand summary judgment); Triguero v. Consolidated Rail
Corp., 932 F.2d 95, 101 (2nd Cir. 1991) (third party plaintiff
seeking indemnity in LHWCA action failed to carry its burden to
show relationship from which to imply indemnity); INA Insurance
Co. of North America v. Valley Forge Insurance Co., 722 P.2d
69

975, 982 (Ariz.Ct.App. 1986) (“burden is on the party seeking
[common law] indemnity to prove he is entitled to it”);
Westinghouse Elec. Corp. v. Dade County, 472 So.2d 866, 867
(Fla.Dist.Ct.App. 1985) (burden on indemnitee to establish facts
leading to recovery) (paraphrasing Crystal River Enterprises v.
NASI, Inc., 399 So.2d 77, 79 (Fla.Dist.Ct.App. 1981)); Heritage
Mutual Insurance Co. v. Stevens, 699 N.E.2d 1005, 1008 (Ohio
Com.Pl. 1996) (“burden is on the party seeking [contractual]
indemnity to prove that he or she is entitled to it”).

In light

of the foregoing authority, there is little reason to surmise
that Massachusetts would not place the burden on Artech and
Burns to establish the elements of their indemnity claim.
Neither Artech nor Burns point to any provision of the contract
evidencing an intent to impose an indemnity obligation on Cave
or other evidence that their relationship was anything other
than a normal and customary relationship of general contractor
and subcontractor.

With Cave having pointed to the absence of

evidence and as the summary judgment targets with the underlying
burden at trial, it was incumbent upon Artech and Burns to point
to such facts.

See Ocasio-Hernández v. Fortuño-Burset, 777 F.3d

1, 8 (1st Cir. 2015); Scottsdale Insurance Co. v. Torres, 561
F.3d 74, 77 (1st Cir. 2009) (“party with the burden of proof must
provide evidence sufficient for the court to hold that no
70

reasonable fact-finder could find other than in its favor”).
For example, the June 23, 2009 invoice simply lists the items of
work Cave agreed to perform on the Church for specific fees
without any implicit or implied reference to an indemnity
obligation undertaken by Cave.

Summary judgment on the implied

contractual indemnity claim encompassed within Count II of the
third party complaint is therefore appropriate.
2.

Tort-Based Indemnity
Citing the principle that tort-based indemnity requires

derivative or vicarious liability on the part of the party
seeking indemnification, Cave argues that this form of indemnity
does not apply because Artech’s liability was neither
constructive nor vicarious.

(Docket Entry # 93, pp. 3-4).

Cave

additionally maintains that “Artech has an absolute defense if
it was not negligent with respect to the work performed by Cave”
and “is liable only if [SSHC] establishes Artech acted
negligently with respect to the church renovations.”

(Docket

Entry # 93) (citing Decker v. Black and Decker Mfg. Co., 449
N.E.2d 641).34

Defendants submit that the absence of fault or

34

Decker was an action in which the plaintiff, an employee
injured in the course of his employment when operating a radial
arm saw, sued a manufacturer of the saw based on “negligent
manufacture, negligent failure to warn, and negligent failure to
correct defects” and a seller of the saw for “negligent failure
to inspect, negligent failure to warn, and breach of express and
implied warranties” under the Uniform Commercial Code,
71

negligence on their part as well as Cave’s involvement and
Artech’s retained control over the project are genuinely
disputed material issues of fact that preclude summary judgment
on the indemnity count.

(Docket Entry # 101).

Tort-based indemnification “is permitted only when one
[prospective indemnitee] does not join in the negligent act but

Massachusetts General Laws chapter 106, sections 2-313 and 2314. Id. at 642-643. The manufacturer and the seller, as third
party plaintiffs, sued plaintiff’s employer alleging the
latter’s negligence and seeking indemnity. Id. at 643.
Meanwhile, the employee did not reserve his common law rights
against his employer, Lenox Machine Company, Inc. Id. at 642.
The relevant passage relied upon by Cave for the above
argument reads as follows:
If either Black & Decker or Pittsfield is liable to the
plaintiff, it will be as a result of its negligence or
breach of warranty. Such liability will not be derivative
or vicarious in nature, nor will it be constructive rather
than actual. Accordingly, the third-party plaintiffs are
not entitled to indemnification from Lenox. If, as the
third-party plaintiffs contend, the plaintiff’s injuries
were not caused by their negligence or breach of warranty,
this will constitute an absolute defense to the main
action. Such a defense, however, does not provide the
basis for an indemnity claim. Sherman Concrete Pipe Mach.,
Inc. v. Gadsden Concrete & Metal Pipe Co., 335 So.2d 125,
127 (Ala. 1976). Robinson v. International Harvester Co.,
44 Ill.App.3d 439, 444-46, 3 Ill.Dec. 150, 358 N.E.2d 317
(1976), rev’d on other grounds, 70 Ill.2d 47, 15 Ill.Dec.
850, 374 N.E.2d 458 (1977). William H. Field Co. v. Nuroco
Woodwork, Inc., 115 N.H. 632, 634, 348 A.2d 716 (1975).
As in Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524,
527, 373 N.E.2d 957 (1978), we base our decision on the
statutory scheme embodied in G.L. c. 152.
Decker v. Black and Decker Manufacturing, 449 N.E.2d at 645.
72

is exposed to derivative or vicarious liability for the wrongful
act of another.”

Stewart v. Roy Brothers, 265 N.E.2d 357, 365

(Mass. 1970); accord Fireside Motors, Inc. v. Nissan Motor Corp.
in U.S.A., 479 N.E.2d at 1388; see Ferreira v. Chrysler Group
LLC, 13 N.E.3d at 567 (right to indemnity “limited to those
cases where the person seeking indemnification is blameless, but
is held derivatively or vicariously liable for the wrongful act
of another”).

Here, a finder of fact could conclude that

defendants are liable based not on their own negligence but on
Cave’s extra-contractual promises, negligent performance of the
repairs under the contract or breach of the express guarantee or
implied warranty in the contract.

Further, their lack of

negligence vis-à-vis SSHC does not absolve them of liability to
SSHC for breach of contract.

See Fireman’s Fund Insurance Co.

v. Falco Construction Corp., 493 F.Supp.2d 143, 146 (D.Mass.
2007) (contracting party “‘remains liable regardless of who
actually performs the contract obligation’”) (internal citations
omitted).

Thus, even if neither Artech nor Burns are negligent,

their lack of negligence does not constitute “an absolute
defense” in the main action, as argued by Cave.

Decker is

distinguishable because there was no breach of contract claim in
the main action and the SJC grounded its “decision on the
statutory scheme embodied in G.L. c. 152.”
73

Decker v. Black and

Decker Mfg. Co., 449 N.E.2d at 645.35

Based on the arguments

presented, therefore, Count II is not subject to summary
judgment insofar as it raises a tort-based claim of indemnity.
C.

Breach of Contract and Breach of Implied Warranty
Cave next moves for summary judgment on the breach of

contract claim in Count III and the breach of the implied
warranty of claim in Count IV because they constitute negligence
as opposed to contract claims.
Authority

Citing Kingston Housing

v. Sandonato & Bogue, Inc., 577 N.E.2d 1, 3

(Mass.App.Ct. 1991), Cave reasons that, “the act of
unintentionally failing to conform with contract specifications
is not different from negligent workmanship.”
93, p. 9).

(Docket Entry #

According to Cave, a “court must look at the ‘gist

of the action’ when determining the nature of a claim.”

(Docket

Entry # 93, p. 9) (quoting Anthony’s Pier Four, Inc. v. Crandall
Dry Dock Engineers, Inc., 489 N.E.2d 172, 175 (Mass. 1986)).
Both cases are distinguishable because they addressed an
issue different from the case at bar, namely, the applicability
of statutes of limitations or repose based on the classification
of a cause of action.

Thus, in making the above statement, the

court in Kingston was addressing whether to apply the three year
statute of limitations applicable to torts arising from

35

See the previous footnote.
74

improvement to real property, Mass. Gen. L. ch. 260, § 2B
(“section 2B”), or a longer statute of limitations applicable to
contract claims, see Mass. Gen. L. ch. 260, § 2.36
Housing Authority
4.

See Kingston

v. Sandonato & Bogue, Inc., 577 N.E.2d at 3-

The decision in Anthony’s Pier Four is likewise

distinguishable because the court was determining whether
section 2B barred a breach of an express warranty claim.37

Cave

36

In full, the relevant portion of the opinion reads as
follows:
Owners hoping to jump over the bar of G.L. c. 260, § 2B,
observed that the statute was directed to actions of tort.
They, therefore, attempted casting their claims in contract
terms, i.e., breach of warranty, see, e.g., Klein v.
Catalano, 386 Mass. at 718, 437 N.E.2d 514, in hope of
applying a longer statute of limitations. That effort, as
already noted, met with no success because the act of
unintentionally failing to conform with contract
specifications is not different from negligent workmanship.
Unless breach of warranty in this context were read as just
another label for negligent workmanship, the statute, which
was curative in the sense that it sought to establish a
special limitation for the litigation of construction
disputes, would be nullified by the simple expedient of
giving the action a different label.
Kingston Housing Authority v. Sandonato & Bogue, Inc., 577
N.E.2d at 3.

37

Placing the quote in context, the relevant portion of the
decision reads as follows:
A plaintiff may not, of course, escape the consequences of
a statute of repose or statute of limitations on tort
actions merely by labeling the claim as contractual. The
court must look to the “gist of the action.” Hendrickson v.
Sears, 365 Mass. 83, 85, 310 N.E.2d 131 (1974). Thus, in
Klein, supra, we held that § 2B would bar a breach of
75

fails to provide any other case or legal authority to support
the argument.
More to the point, a “failure to perform a contractual
obligation is not a tort in the absence of a duty to act apart
from the promise made.”

Anderson v. Fox Hill Village Homeowners

Corp., 676 N.E.2d 821, 823 (Mass. 1997); accord Cumis Insurance
Society, Inc. v. BJ’s Wholesale Club, Inc., 918 N.E.2d 36, 49
(Mass. 2009) (“failure to perform a contractual duty does not
give rise to a tort claim for negligent misrepresentation”).
As explained by the SJC in Anderson, tort obligations are:
“imposed apart from and independent of promises made and
therefore apart from any manifested intention of parties to
a contract or other bargaining transaction. Therefore, if
the alleged obligation to do or not to do something that
was breached could not have existed but for a manifested
intent, then contract law should be the only theory upon
which liability would be imposed.”
Anderson v. Fox Hill Village Homeowners Corp., 676 N.E.2d at
823-824 (quoting W. Prosser & W. Keeton, Torts § 92, at 656 (5th
ed. 1984)).

The breach of contract and breach of implied

implied warranty claim where the elements for breach of
implied warranty and for negligence claims are the same.
Id., 386 Mass. at 719 & n. 19, 437 N.E.2d 514. A claim for
breach of express warranty differs, however, from a
negligence claim because the plaintiff must demonstrate
that the defendant promised a specific result . . .. We
therefore conclude that § 2B does not apply to the
plaintiff's express warranty claims.
Anthony’s Pier Four, Inc. v. Crandall Dry Dock Engineers, Inc.,
489 N.E.2d at 175.  
76

warranty claims allege that Cave breached the contract between
himself and Artech by failing to perform the work set out in the
June 2009 contract between SSHC and Artech in a satisfactory or
proper manner.

The obligations imposed are not independent of

the Cave/Artech contract and the claims are therefore not
subject to summary judgment because they constitute negligence
claims.
D.

Breach of Covenant of Good Faith and Fair Dealing
Cave next moves for summary judgment on the breach of the

covenant of good faith and fair dealing claim encompassed in
Count III of the third party complaint.

In Count III,

defendants assert both a breach of contract claim and a breach
of the covenant of good faith and fair dealing claim.

Cave

argues that defendants fail to show lack of good faith and “they
have no reasonable expectation of presenting evidence satisfying
the prima facie elements” of the claim.

(Docket Entry # 93).

Defendants do not address the argument.
Massachusetts law implies a covenant of good faith and fair
dealing into every contract.

See FAMM Steel, Inc. v. Sovereign

Bank, 571 F.3d 93, 100 (1st Cir. 2009).

The covenant requires

that the parties, in this instance Cave, not “‘do anything which
will have the effect of destroying or injuring the right of the
other party,’” in this instance Artech, “‘to receive the fruits
77

of the contract.’”

Nile v. Nile, 734 N.E.2d 1153, 1160 (Mass.

2000) (internal citations omitted); see Uno Restaurants Inc. v.
Boston Kenmore Realty Corp., 805 N.E.2d 957, 964 (Mass. 2004)
(covenant “preserved so long as neither party injures the rights
of another to reap the benefits prescribed by the terms of the
contract”).

“‘The scope of the covenant is only as broad as the

contract that governs the particular relationship.’”

FAMM

Steel, Inc. v. Sovereign Bank, 571 F.3d at 100 (internal
citations omitted); Chokel v. Genzyme Corp., 867 N.E.2d 325, 329
(Mass. 2007); see also Ayash v. Dana-Farber Cancer Inst., 822
N.E.2d 667, 684 (Mass. 2005) (“concept of good faith and fair
dealing in any one context is shaped by the nature of the
contractual relationship from which the implied covenant
derives”).

Hence, the covenant does not supply terms to

contract between Cave and Artech “‘that the parties were free to
negotiate, but did not, nor does it “create rights and duties
not otherwise provided” for in the contract.’”

FAMM Steel, Inc.

v. Sovereign Bank, 571 F.3d at 100 (internal citations omitted);
Chokel v. Genzyme Corporation, 867 N.E.2d at 329 (same).
“The duty of good faith and fair dealing concerns the
manner of performance” of the contract, Uno Restaurants Inc. v.
Boston Kenmore Realty Corp., 805 N.E.2d at 964, as opposed to
the negotiation of its terms.

Thus, when performing the
78

obligations of the contract, Cave must “‘remain faithful to the
intended and agreed expectations’ of the contract.”

Chokel v.

Genzyme Corp., 867 N.E.2d at 329.
There is, however, no requirement that the plaintiff show
bad faith on the part of the breaching party.

See Nile v. Nile,

734 N.E.2d at 1160 (“[t]here is no requirement that bad faith be
shown”).

Rather, “A plaintiff must show a lack of good faith,”

Uno Restaurants Inc. v. Boston Kenmore Realty Corp., 805 N.E.2d
at 964 n.5, which may be inferred by the evidence.

See Nile v.

Nile, 734 N.E.2d at 1160 (“showing of a lack of good faith is
required in such circumstances, but it may be inferred by
evidence”).

Cave must therefore be honest in his dealings with

Artech and “not purposefully injure” Artech’s “right to obtain
the benefit” of the contract.

See Shawmut Bank, N.A. v. Wayman,

606 N.E.2d 925, 928 (Mass.App.Ct. 1993) (“duty of good faith
would require that the bank be honest in its dealings . . . and
that it not purposefully injure her right to obtain the benefits
of the contract”); accord FAMM Steel, Inc. v. Sovereign Bank,
571 F.3d at 100 (quoting Shawmut Bank, N.A. v. Wayman, 606
N.E.2d at 928).

The defendant’s motives may bear on the

determination of a lack of good faith.

See T.W. Nickerson, Inc.

v. Fleet Nat. Bank, 924 N.E.2d 696, 704 (Mass. 2010) (“we may
look to the motive of the trustee in terminating the trust, as
79

that may be relevant to whether the trustee acted in good faith
as to the plaintiff’s rights under the leases”); see Restatement
(Second) of Contracts § 205 cmt. d. (1981) (“willful rendering
of imperfect performance” may violate obligation to perform
contract in good faith).38

A breach of the covenant takes place

“when one party violates the reasonable expectations of the
other.”

Chokel v. Genzyme Corp., 867 N.E.2d at 329 (internal

citations omitted).
With Cave having identified the deficiencies in the claim,
it was incumbent upon defendants, as the summary judgment
targets with the underlying burden of proof on the covenant of
good faith and fair dealing claim, to set out specific facts of
Cave’s lack of good faith.

See Ocasio-Hernández v. Fortuño-

Burset, 777 F.3d at 8; Scottsdale Insurance Co. v. Torres, 561
F.3d at 77; T.W. Nickerson, Inc. v. Fleet Nat. Bank, 924 N.E.2d
at 704 (“the plaintiff has the burden of proving a lack of good
faith”).

In the context of summary judgment, “a ‘nonmovant may

not rest upon . . . denials of the movant’s pleading, but must
set forth specific facts showing that there is a genuine issue
of material fact as to each issue upon which he would bear the
ultimate burden of proof at trial.’”

Bellone v. Southwick-

38

The SJC in Uno cites to section 205 in addressing a lack of
good faith. Uno Restaurants, Inc. v. Boston Kenmore Realty
Corp., 805 N.E.2d at 964.
80

Tolland Regional School Dist., 748 F.3d 418, 424 (1st Cir. 2014)
(internal brackets and citations omitted).

Defendants do not

identify specific facts that they maintain evidence Cave’s lack
of good faith, such as wilfully rendering a deficient
performance of the work outlined in the June 23, 2009 invoice.
In fact, defendants fail to even address the argument that there
is no evidence that Cave lacked good faith in performing the
Cave/Artech contract.

Thus, not only do defendants fail to

identify and set forth specific facts of a lack of good faith,
as required, they waived any argument that Cave acted with a
lack of good faith by not addressing it.

See Merrimon v. Unum

Life Ins. Co. of America, 758 F.3d 46, 57 (1st Cir. 2014), cert.
denied, 135 S.Ct. 1182 (2015) (if “party fails to assert a legal
reason why summary judgment should not be granted, that ground
is waived and cannot be considered or raised on appeal”)
(internal quotation marks and citation omitted); Coons v.
Industrial Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010)
(“district court was ‘free to disregard’ the state law argument
that was not developed in Coons’s brief”).

Cave is therefore

entitled to summary judgment on the breach of the covenant of
good faith and fair dealing claim in Count III of the third
party complaint.
E.

Lack of Privity
81

As a final argument, Cave maintains that Artech was the
only intended beneficiary of the Cave/Artech contract and that
Burns’ lack of privity with respect to the Cave/Artech contract
warrants summary judgment “as to all” of the claims brought by
Burns.

(Docket Entry # 93) (bolding omitted).

Cave argues

that, “In order for a third party to enforce a contract under
Massachusetts law, ‘[i]t must appear from the language and
circumstances of the contract that the parties to the contract
clearly and definitely intended the beneficiaries to benefit
from the promised performance.’”

(Docket Entry # 93, pp. 11-12)

(quoting Paterson-Leitch Co. V. Massachusetts Mun. Wholesale
Elec. Co., 840 F.2d 985, 995 (1st Cir. 1988)).39

As framed by

Cave, the privity and third party beneficiary argument pertains
to Burns’ ability to enforce an “agreement between Artech and
Cave” (Docket Entry # 93, p. 12), i.e., the breach of contract
claims as opposed to the tort claims.

39

Paterson-Leitch does not contain this language but the
principle is an accurate statement of the law. “Under
Massachusetts law, in order for a third party to enforce a
contract, ‘[i]t must appear from “the language and circumstances
of the contract” that the parties to the contract “clear[ly] and
definite[ly]” intended the beneficiaries to benefit from the
promised performance.’” Massachusetts Eye and Ear Infirmary v.
QLT Phototherapeutics, Inc., 412 F.3d 215, 229 (1st Cir. 2005)
(internal citations omitted).

82

Accordingly, even though Cave seeks summary judgment on
“all claims,” the argument does not apply to the tort-based
indemnity claim in Count II.40

Similarly, the contribution claim

in Count I does not require Burns’ privity to the Cave/Artech
agreement.

Contribution is derivative in nature and, “[w]ithout

liability in tort,” there is no right to contribution.

LeBlanc

v. Logan Hilton Joint Venture, 974 N.E.2d at 42 (internal
citations omitted).
In Count III, defendants allege that Cave did not “properly
and completely” perform the Artech/Cave contract and thereby
breached the contract.

(Docket Entry # 53, ¶¶ 52, 53).

With

respect to Count IV, defendants allege that Cave breached an
implied warranty in the Cave/Artech contract to perform the
restoration work at the Church in conformity with the June 18,
2009 contract.41

40

The implied contractual indemnity claim is subject to summary
judgment for reasons previously discussed.
41
The third party complaint alleges that Artech and Cave
entered into a contract. (Docket Entry # 53, ¶¶ 17, 52, 53).
Paragraph 57 of the third party complaint, however, refers to
Cave’s agreement with Artech and Burns. (Docket Entry # 53, ¶
57). Defendants do not argue that Burns was a party to the oral
contract. Rather, they maintain that Artech had an oral
contract with Cave. (Docket Entry # 102, ¶ 5 (“[w]hile true
there was no written contract, a contract nonetheless existed
between Cave and Artech, and there were writings between the
parties, Cave and Artech that demonstrate existence of, at a
minimum, an oral agreement or contract”).  
83

In Massachusetts, “a plaintiff seeking to enforce a
contract as a third-party beneficiary must demonstrate ‘from the
language and circumstances of the contract that the parties to
the contract clearly and definitely intended the beneficiaries
to benefit from the promised performance.’”

Alicea v. Machete

Music, 744 F.3d 773, 784 (1st Cir. 2014) (internal citation
omitted); Pollak v. Federal Insurance Co., 2013 WL 6152335, at
*3 (D.Mass. Nov. 21, 2013) (intent of “contracting parties is
the central inquiry in determining whether a nonparty may
maintain an action as a third-party beneficiary”).

An

incidental beneficiary lacks the ability to “enforce the terms
of a contract.”

Id. at *4.

Thus, ‘‘to recover as a third-party

beneficiary, the plaintiffs must show that they were intended
beneficiaries of the contract.’’

Spinner v. Nutt, 631 N.E.2d

542, 546 (Mass. 1994); see Miller v. Mooney, 725 N.E.2d 545,
549-550 (Mass. 2000) (third party beneficiaries must be
“intended beneficiaries”).

Massachusetts follows section 302 of

Restatement (Second) of Contracts (1981) in ascertaining whether
a person is an intended or incidental beneficiary.42

See Flattery

42

Section 302, captioned “Intended and Incidental
Beneficiaries,” reads as follows:
(1) Unless otherwise agreed between promisor and promisee,
a beneficiary of a promise is an intended beneficiary if
recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and
either
84

v. Gregory, 489 N.E.2d 1257, 1261 (Mass. 1986); Markle v. HSBC
Mortg. Corp. (USA), 844 F.Supp.2d 172, 180 (D.Mass. 2011) (‘‘both
Massachusetts law and federal common law follow the Restatement
(Second) of Contracts to assess the rights of third-party
beneficiaries’’); see also Miller v. Mooney, 725 N.E.2d at 550
(citing Restatement (Second) of Contracts §§ 302, 315 (1981));
Alicea v. Machete Music, 744 F.3d at 784 (citing Restatement
(Second) of Contracts §§ 302, 315 (1981)).
A finder of fact could conclude that Artech and Cave had an
implied in fact contract under which Cave agreed to perform the
categories of work listed in the June 23, 2009 invoice.43

These

seven categories mirror the categories in the Artech/SSHC
contract.

Prior to June 2009, Cave submitted a proposal to

Artech on April 30, 2009, with prices for a number of categories
of work.

On May 13, 2009, he sent Artech another proposal with

(a) the performance of the promise will
obligation of the promisee to pay money
or
(b) the circumstances indicate that the
give the beneficiary the benefit of the
performance.

satisfy an
to the beneficiary;
promisee intends to
promised

(2) An incidental beneficiary is a beneficiary who is not
an intended beneficiary.
Restatement (Second) of Contracts § 302 (1981).  
43
Under Massachusetts law, an implied in fact contract, which
defendants denote as an oral contract, “‘requires the same
elements as an express contract and differs only in the method
of expressing mutual assent.’” Katz v. Pershing, LLC, 672 F.3d
at 64, 74 (internal citation omitted).  
85

revised costs that included a new category for exterior
waterproofing.

(Docket Entry # 90-8, pp. 107-110, 116-119).

Burns is an officer of Artech and signed the June 18, 2009
contract and its prior draft versions on behalf of Artech.

Cave

testified that he was a subcontractor for Artech and understood
that Burns and Thomas Burns owned the company.
90-8, pp. 64-66, 158).

(Docket Entry #

After June 18, 2009, Cave submitted

several additional invoices to Artech for his work, which Artech
paid.

(Docket Entry # 90-8, pp. 21-24).
There is little indication, however, that Artech and Cave

intended to confer third party beneficiary status on Burns.

He

is not named or identified in the invoice, which sets out the
categories of work and Cave’s charges to perform the work for a
total of $87,700, or the prior proposals Cave sent to Artech.
See McCarthy v. Azure, 22 F.3d 351, 362 (1st Cir. 1994) (“we are
unable to discern any indication in the Purchase Agreement that
the parties meant to make their respective agents or employees
third-party beneficiaries” inasmuch as they are not “mentioned
explicitly in the Purchase Agreement” and “there are no
meaningful categorical references”) (applying New Hampshire
law); see also Evans v. Multicon Constr. Corp., 574 N.E.2d 395,
401 (Mass.App.Ct. 1991).

There is little, if any, evidence that

Artech or Cave intended to confer third party beneficiary status
86

on Burns.

Defendants do not point to any facts showing that

Burns, an officer of Artech, received a benefit such as direct
compensation or payment of a debt vis-à-vis Cave’s performance.
Here again, defendants have the underlying burden of proof and
they fail to point to any facts indicative of Burns as a third
party beneficiary of the Cave/Artech contract.
Lacking either privity or third party beneficiary status,
Burns cannot maintain an action for breach of the Artech/Cave
contract or breach of the implied warranty purportedly
encompassed within that contract.

Cave is therefore entitled to

summary judgment on the breach of contract claim brought by
Burns in Count III and the breach of the implied warranty claim
brought by Burns in Count IV.
V.

Defendants’ Local Rule 56.1 Motion
As a final matter, defendants filed a motion seeking to

deem admitted 44 paragraphs in their statement of undisputed
facts because SSHC’s responses were either unresponsive,
improper or not supported by citations to the record.
Entry # 109).

(Docket

Defendants argue that SSHC fails to admit or deny

19 paragraphs, improperly qualifies another 17 paragraphs and
fails to provide any citations to the record with respect to
eight paragraphs.

(Docket Entry ## 109, 110).

87

“‘District courts enjoy broad latitude’ in” administering
and enforcing local rules.

NEPSK, Inc. v. Town of Houlton, 283

F.3d 1, 6 (1st Cir. 2002); United States v. Diaz-Villafane, 874
F.2d 43, 46 (1st Cir. 1989); see also Mariani-Colon v. Dept. of
Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir.
2007).

As an anti-ferret rule, Local Rule 56.1 functions to

focus a court’s attention on the facts that are genuinely
disputed.

See Cabán Hernández v. Philip Morris USA, Inc., 486

F.3d 1, 7 (1st Cir. 2007) (anti-ferret “rules are designed to
function as a means of ‘focusing a district court’s attention on
what is—and what is not—genuinely controverted’”); accord
Mariani-Colón v. Dept. of Homeland Sec. ex rel. Chertoff, 511
F.3d at 219 (“purpose of this ‘anti-ferret rule’ is to require
the parties to focus the district court’s attention on what is,
and what is not, genuinely controverted”).

It is designed “to

reduce the burden on trial courts and prevent a party from
shifting the burden to the court to organize the evidence.
Advanced Flexible Circuits, Inc. v. GE Sensing & Inspection
Technologies GMBH, 781 F.3d 510, 520-21 (1st Cir. 2015);
Zimmerman v. Puccio, 613 F.3d 60, 63 (1st Cir. 2010)
(“reiterat[ing] the importance of” anti-ferreting rules as

88

See

“preventing litigants from shifting the burden of organizing
evidence to the district court”).44
In pertinent part, the anti-ferreting rule in Massachusetts
requires the party opposing summary judgment to:
include a concise statement of the material facts of record
as to which it is contended that there exists a genuine
issue to be tried, with page references to affidavits,
depositions and other documentation . . .. Material facts
of record set forth in the statement required to be served
by the moving party will be deemed for purposes of the
motion to be admitted by the opposing parties unless
controverted by the statement required to be served by
opposing parties.
LR. 56.1 (emphasis added).
Citing and quoting Advanced Flexible Circuits, Inc. v. GE
Sensing & Inspection Technologies GMBH, 781 F.3d at 520-21,
defendants argue that SSHC should “admit” or “deny” each
paragraph.

(Docket Entry ## 109, 110).

A number of SSHC’s

responses do not include these words and, instead, simply state,
“‘Immaterial’” or “‘Immaterial and inadmissable’” with a brief
explanation.

(Docket Entry # 98).

The language of the District

of Puerto Rico’s local rule at issue in Advanced Flexible
mandates that the counter-statement “‘shall admit, deny or
qualify the facts’” in the moving party’s statement.
520.

Id. at

In comparison, Local Rule 56.1 requires the non-moving

44

Both Advanced Flexible and Zimmerman interpreted the District
of Puerto Rico’s anti-ferreting rule.  
89

party simply to controvert rather than “deny” or “admit” a
statement.

See also McGrath v. Tavares, 757 F.3d 20, 26 n.10

(1st Cir. 2014) (comparing the “solid anti-ferreting rules” in
the Districts of Maine and Puerto Rico to Local Rule 56.1),
cert. denied, 135 S.Ct. 1183 (2015).

SSHC’s responses

adequately controvert defendants’ statements.45

Furthermore,

mindful of the purpose for the rule, the violations, if any, did
not shift the burden to this court to organize the evidence.
Defendants also argue that SSHC fails to cite to the record
with respect to a number of its responses.

Although it is not

always apparent whether the non-moving party complied with the
rule with respect to a particular statement, a party’s omission
of citations to the record leaves no doubt about its violation
of the rule.

See Zimmerman v. Puccio, 613 F.3d at 63

(“defendants’ failure to provide any citations whatsoever in
their opposition statement leaves no doubt as to their
noncompliance”); see also Alsina-Ortiz v. Laboy, 400 F.3d 77, 80
(1st Cir. 2005) (“whether the rule has been violated is a
different question, easily answered where the opponent fails to
file any statement or omits all record citations but less so

45

Moreover, Local Rule 56.1 does not require SSHC to respond to
each paragraph, see id., and, like the plaintiff McGrath, SSHC
filed a statement of additional material facts in opposition to
defendants’ summary judgment motion. (Docket Entry # 100).  
90

where the deficiency is of a different kind”) (interpreting
District of Puerto Rico’s local rule).

Notwithstanding SSHC’s

failure to provide citations in response to certain statements,
a “district court may forgive a party’s violation of a local
rule.”

Mariani-Colón v. Dept. of Homeland Sec. ex rel.

Chertoff, 511 F.3d at 219.

Here, even though multiple responses

by SSHC do not include citations to the record, the purpose of
the rule is to avoid improperly shifting the burden to organize
the evidence to this court.

Given this court’s familiarity with

this litigation, that burden was not shifted to this court or
compounded by SSHC’s failure to include citations.46
Turning to the 44 paragraphs defendants identify to
complete the analysis,47 paragraph one in defendants’ statement
simply sets out a legal argument that SSHC is a stranger to the

46

This court recognizes that cross summary judgment motions do
not affect SSHC’s obligation to comply with Local Rule 56.1, see
Zimmerman v. Puccio, 613 F.3d at 63; but cf. McGrath v. Tavares,
757 F.3d at 26 n.10. Accordingly, this court does not consider
SSHC’s Local Rule 56.1 statement in support of its summary
judgment motion (Docket Entry # 90) as a response or as
otherwise satisfying its obligation to controvert defendants’
Local Rule 56.1 statement (Docket Entry # 97). This court’s
review of the 59 paragraph statement of undisputed facts with
citations (Docket Entry # 90), however, increased this court’s
already existing familiarity with the litigation. These
paragraphs include the findings of plaintiff’s experts; the
terms of the June 18, 2009 contract; the work performed by
Machnik, Cave and his construction crew; and Burns’ involvement.
47
“[D]efendants have no objection” to two of the identified
paragraphs, namely, paragraphs 31 and 33. (Docket Entry # 109,
pp. 17-18). Accordingly, these paragraphs are not addressed.  
91

contract as well as a description of the action set out in the
amended complaint, namely, that this is a “state-law based, six
count action alleging diversity of citizenship” and “breach of a
contract to which it is a stranger, negligence and several
related theories.”

(Docket Entry # 97).

It does not set out a

fact that is part of the summary judgment record.

In any event,

the procedural background includes these “facts” with the
exception of SSHC being a stranger to the contract.

SSHC’s

response also provides citations to specific paragraphs in its
statement of disputed facts, which it incorporates into its
opposition to defendants’ summary judgment motions, and those
paragraphs contain citations to documentation in the summary
judgment record.

In this court’s discretion, the response is

sufficient.
As to SSHC’s response to paragraph two, defendants state
they are entitled to have SSHC admit or deny the statement.

To

the contrary, Local Rule 56.1 requires the non-moving party to
controvert the statement.

SSHC’s response states that the

statement is “in dispute” and refers to its answer in paragraph
one which, as noted above, is sufficient.

SSHC’s response to

paragraph nine is also sufficient for similar reasons.
Paragraph three sets out a legal argument that “the named
plaintiff in this action, SSHC, is not a party to the contract .
92

. . and it has not asserted rights as a third-party
beneficiary.”

(Docket Entry # 97).

In addition, defendants do

not provide citations to the record for this legal argument.

In

this court’s discretion, paragraph three is not deemed admitted
as a fact.

Moreover, SSHC’s response, which refers to its

response to paragraph one, is sufficient.

Paragraph five also

fails to include any citations to the record.

In this court’s

discretion, the fact is not admitted.
As to paragraph four, it is true that SSHC’s counsel
described the Church as a “parish of roughly 90 stewards” at a
November 2013 status conference.

(Docket Entry # 24-3, p. 3).

SSHC’s response points out, correctly, that this court
previously declined to find the statement a clear and binding
judicial admission.
33, p. 2).

(Docket Entry # 50, p. 21) (Docket Entry #

Even considering the statement as an admission,

however, sufficient countervailing facts in the summary judgment
record as to standing make the issue one for the finder of fact.
Paragraph six in defendants’ statement of undisputed facts
is part of the facts and set out in the factual background.

The

substance of paragraph seven is likewise set out in the factual
background.

Similarly, paragraph eight, which simply notes that

SSHC “complains of ongoing water leaks and damage to the church
building,” is contained in the factual background.
93

Plaintiff’s

responses reflect that the statements in these paragraphs are
undisputed.

Exercising this court’s discretion, the failure to

cite to the record in violation of Local Rule 56-1 is excused.
As to paragraph ten, SSHC states it is undisputed.

The

fact that SSHC adds that the information is “immaterial” does
not detract from its acknowledgment that the paragraph is
undisputed and therefore not controverted.

In addition, this

court recognized that neither the contracting documents nor the
exhibits attached to the amended complaint reference “South
Shore Hellenic Church, Inc.” in determining SSHC’s standing.
The same reasoning applies to SSHC’s answer to paragraph 11.
As to paragraph 12, the first sentence characterizes
certain paragraphs in the amended complaint as “extensively
based on the conduct of Cave in performing the contract.”
(Docket Entry # 97).

Paragraph 12 then quotes, at length, the

paragraphs in the amended complaint.

SSHC responds with the

answer, “Undisputed, but immaterial to the extent that
defendants disclaim responsibility for Cave’s acts.”
Entry # 98) (emphasis omitted).

(Docket

SSHC’s response, which

considered the “facts” undisputed and therefore not
controverted, is sufficient.

The “facts,” however, do not

provide a basis to allow summary judgment in defendants’ favor.
The same reasoning applies to SSHC’s response to paragraph 13.
94

Turning to paragraph 14, the substance of the cited portion
of Cave’s deposition in paragraph 14 is set out in the factual
background.

Furthermore, SSHC considered the paragraph

“[u]ndisputed” and therefore not controverted.

SSHC therefore

complied with Local Rule 56.1 and its additional
characterization of the information as “immaterial” does not
detract from such compliance.

The same reasoning applies to

paragraph 15, which is contained in the factual background and
constitutes an undisputed fact.

Although considered by this

court, the fact does not provide a basis to allow defendants
summary judgment.

Similarly, the facts in paragraphs 16 and 17,

although undisputed, do not entitle defendants to summary
judgment as to SSHC when considering the summary judgment record
in its entirety.
SSHC’s response to paragraph 19 is deficient.

The

paragraphs in the amended complaint cited in paragraph 19,
however, do not necessarily support the statement that,
“plaintiff claims it has leaks in the areas of the church in
direct proximity to Foley & Flynn’s work” in sealing and
flashing the roof.

(Docket Entry # 97).

It is also worth

noting that Teller opines that the “[l]eakage is not being
caused by the roofing and flashing.”
9).

Accordingly, defendants are not entitled to summary
95

(Docket Entry # 90-58, p.

judgment based on any admission of the “facts” in paragraph 19
based on any admissions in the cited paragraphs of the amended
complaint.
Paragraph 25 presents a legal argument as opposed to a fact
for purposes of summary judgment.

The legal argument is not a

fact that is admitted by virtue of SSHC’s deficient response.
In this court’s discretion, the paragraph is not admitted as an
uncontroverted fact for purposes of defendants’ summary judgment
motion.48

The same reasoning applies to paragraph 26.

Paragraph

28 also presents a legal argument characterizing one of
Lofgren’s affidavits as not providing “insight into the standing
dispute.”

(Docket Entry # 97, ¶ 28).

In this court’s

discretion, the paragraph is not considered an admitted fact.
Paragraph 27 states that an affidavit (Docket Entry # 24-2)
by Father Theodore Barbas, Chancellor of the Diocese of Boston
of the Greek Orthodox Church of America, uses the word “parish”
and, “as if deliberately not taking sides, never mentions” SSHC
or the Panagia Greek Orthodox Church.
27).

(Docket Entry # 97, ¶

SSHC admits that the affidavit uses the word “parish” but

submits that the latter statement is speculation.

This court

considered the affidavit in the course of recommending a denial

48

With respect to paragraph 25, defendants also fail to provide
any page references to the seven cited docket entries used to
support the argument.  
96

of defendants’ summary judgment motion.

Defendants’

characterization of Barbas’ motivations is not considered an
admitted fact.
Paragraph 29 reproduces several statements made by SSHC’s
counsel in a motion for a protective order (Docket Entry # 24)
and a motion to file a reply brief (Docket Entry # 29).49

A

statement in a brief may be treated as an “‘admission’ under
Rule 56.”

Cerqueira v. Cerqueira, 828 F.2d 863, 865 (1st Cir.

1987) (paraphrasing United States v. One Heckler-Koch Rifle, 629
F.2d 1250, 1253 (7th Cir. 1980)); 10A Charles Alan Wright et al.
Federal Practice and Procedure § 2723 (3rd ed. 2015) (“[a]lthough
some courts have stated that counsel’s briefs (or allegations of
fact made by counsel during oral argument or in motion papers)
are not part of the record upon which the motion for summary
judgment is determined, these assertions are not entirely
accurate” inasmuch as “they are functionally equivalent to

49

The paragraph, which sets out the statements, reads as
follows:
Plaintiff has noted this is a “run-of-the-mill construction
dispute”, (Motion for Protective Order, Document 24, p. 7),
a “garden variety construction case,” id., p. 11, a
“paradigmatic construction [] dispute, id. p. 11, and a
“relatively straightforward construction contract dispute,”
(Plaintiff’s Motion for Leave to File a Reply, Document 29,
p. 10).
(Docket Entry # 97, ¶ 29).

97

‘admissions on file,’ which are expressly mentioned in Rule
56(c)”).50

That said, such statements must be clear and

unambiguous to constitute judicial admissions.

See Lima v.

Holder, 758 F.3d 72, 79 (1st Cir. 2014) (“‘an admission of
counsel during trial is binding on the client’ if, in context,
it is ‘clear and unambiguous’”) (emphasis added); Butler v.
Deutsche Bank Trust Co. Americas, 748 F.3d 28, 39 (1st Cir. 2014)
(“‘[t]o be binding, a judicial admission must be clear’”).
Here, even assuming for purposes of argument only that the
statements are clear, they do not lead to summary judgment in
defendants’ favor on the chapter 93A claim.51

As explained

above, this court expressed doubt but did not decide the issue
of whether any breach of the contract was knowing and/or had the
necessary extortionate quality to rise to the level of a chapter
93A violation.

See Woods v. Wells Fargo Bank, N.A., 733 F.3d at

358; Arthur D. Little, Inc. v. Dooyang Corporation, 147 F.3d at
55; Anthony’s Pier Four, Inc. v. HBC Associates, 583 N.E.2d at
821; Ramos v. International Fidelity Insurance Co., 34 N.E.3d at
741.

Rather, this court decided the chapter 93A claim based on

the trade or commerce issue.

50

Rule 56(c) now employs the term “admissions” as opposed to
admission on file.  
51
This court expresses no opinion on the admissibility of such
statements at trial which is solely an issue for the trial
judge.  
98

Paragraph 30 simply quotes the amended complaint’s
quotation of portions of the chapter 93A letter.

As such, it is

not a fact but, rather, sets out the basis for SSHC’s chapter
93A claim and legal arguments.
Similarly, paragraph 31’s recitation of the counts in the
amended complaint is not a “fact” and, in any event, is included
in the procedural background.

The same reasoning applies to

paragraph 34.
Paragraph 32 sets out and quotes SSHC’s answer to the state
the basis interrogatory previously discussed.

SSHC’s response

states that it “dispute[s]” the paragraph because it does not
set out SSHC’s entire response to the interrogatory.

SSHC’s

response to paragraph 32 cites the amended complaint and, as
discussed above, its answer to the interrogatory references the
amended complaint.

SSHC therefore adequately complies with

Local Rule 56.1 and, in any event, its response did not shift
the burden to this court to organize the evidence.

Defendants’

request as to paragraph 32 is therefore denied.
Paragraph 35 consists of a legal argument that SSHC does
not allege “dishonesty or overreaching.”

(Docket Entry # 97).

In this court’s discretion, it is not an admitted fact.
Paragraph 36 similarly consists of a legal argument that SSHC
fails to present evidence of Burns’ personal involvement with
99

respect to the chapter 93A claim.

As a legal argument, it is

not an undisputed or admitted fact.

As explained above, the

argument did not warrant summary judgment in Burns’ favor on the
chapter 93A claim given the facts in the summary judgment
record.

The paragraph also does not contain citations to the

record and, consequently, does not comply with Local Rule 56.1.
In this court’s discretion, the request to admit paragraph 36 is
denied.

The same reasoning and ruling applies to paragraph 37.

The requests to admit paragraphs 44, 45, 50, 56 and 57 are
moot because the factual background sets out and includes the
deposition testimony and averments by affidavit reflected in
these paragraphs.

Alternatively, SSHC’s responses did not shift

the burden to this court to organize the evidence or impose any
burden on this court.
are denied.

In this court’s discretion, the requests

The paragraphs also do not mandate allowing

defendants’ summary judgment motion.
As to paragraph 46, defendants seek to admit Lofgren’s
testimony about what Foley told him about the “poor job” done on
the Church’s roof by the prior roofing company.
97, ¶ 46) (Docket Entry # 115-2, p. 31).

(Docket Entry #

SSHC correctly

characterizes Lofgren’s statements as hearsay.

In this court’s

discretion, the request to consider the paragraph an admitted

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fact is denied.

The same reasoning and ruling apply to

paragraphs 47 and 48.
Paragraph 49 reproduces Thomas Burns’ averment (Docket
Entry # 97-3, ¶ 2).

The averment is part of the record with

respect to defendants’ summary judgment motion and the request
to deem the paragraph an admitted fact is allowed to that
extent.

The averment (Docket Entry # 97-3, ¶ 2), however, is

not considered to directly contradict the parties’ expressly
stated and agreed price of $16,900 for the exterior
waterproofing category, which encompassed the subcategory
requiring Artech to repoint “[a]ll loose and missing mortar
joints.”52

(Docket Entry # 90-5).

As argued by SSHC, it is also

not considered to show Thomas Burns’ undisclosed intentions
regarding the meaning of the contract.

See Farmers Insurance

Exchange v. RNK, Inc., 632 F.3d 777, 787 n.9 (1st Cir. 2011)
(“‘contracts depend on objective manifestations of consent and
not on uncommunicated subjective expectations’”) (internal
brackets and citations omitted).

The same reasoning and ruling

applies to paragraph 51.

This court expresses no opinion on the admissibility of any
testimony by Thomas Burns similar to his averment. (Docket
Entry # 97-3, ¶ 2). The ambiguity of the contract or the
admissibility of extrinsic evidence to show the circumstances
surrounding the contract are matters solely for the trial judge.
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52

Turning to paragraph 52, the first sentence constitutes
legal argument regarding the scope of the contract.

The second

sentence recites Thomas Burns’ averment that Artech had no
understanding or expectation that the Panagia Greek Orthodox
Church had an expectation that 50%, “let alone 100%,” of the
mortar joints would be repointed.
(Docket Entry # 97-3, ¶ 5).

(Docket Entry # 97, ¶ 52)

The third sentence, which is based

on Thomas Burns’ averment that it was never communicated to
Artech that Panagia Greek Orthodox Church had an expectation
that 50%, “let alone 100%,” of the mortar joints would be
repointed (Docket Entry # 97-3), is part of the record and
included in the factual background.

The contract states that,

“All loose and missing mortar joints will be repointed.”
(Docket Entry # 90-5).

The request as to the second and third

sentences is moot because, even considering the second and third
sentences as admitted facts, they do not result in a
recommendation to allow defendants’ summary judgment motion.

In

the alternative, SSHC’s failure to cite to the record, even if
it constitutes a violation, did not shift the burden to this
court to organize the evidence or impose any additional burden
on this court.

Accordingly this court, in its discretion,

forgives any violation.

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Similarly, the requests as to paragraphs 53 and 54 are moot
because, even considering the statements as admitted facts, they
do not result in a recommendation to allow defendants’ summary
judgment motion.

In the alternative, SSHC’s failure to cite to

the record, even if it constitutes a violation, did not shift
the burden to this court to organize the evidence or impose any
additional burden on this court.

Accordingly, this court, in

its discretion, forgives any violation.
As to paragraph 55, this court included and considered the
fact that neither Lofgren nor Bourikas stated to Artech that he
was acting on behalf of SSHC when addressing the standing issue.
This court also recognized that the prior drafts of the contract
and the contract do not refer to SSHC.

The request to consider

the statement in paragraph 55 as an admitted fact is therefore
moot.

In the alternative, SSHC’s failure to cite to the record,

even if it constitutes a violation, did not shift the burden to
this court to organize the evidence or impose any burden on this
court.

Accordingly, this court, in its discretion, forgives any

violation of the rule.
Paragraph 58 seeks to establish that, “The contract . . .
provided for, in a part labeled, ‘Exterior Waterproofing’ solely
the following work: power washing the exterior, repointing
‘[a]all [sic] loose and missing mortar joints’ and coating stone
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work with a waterproof sealant.”
(emphasis added).

(Docket Entry # 97, ¶ 58)

The exterior waterproofing category and

subcategories are set out in the factual background and part of
the record.

SSHC’s response states that the paragraph is “in

dispute” and cites to the contract (Docket Entry # 9-13) as
containing a more complete and accurate statement of the
category and subcategories.
omitted).

(Docket Entry # 98, ¶ 58) (emphasis

SSHC therefore adequately complied with Local Rule

56.1.
Likewise, SSHC’s response to paragraph 60 complied with
Local Rule 56.1.

SSHC stated that the statement was “in

dispute,” i.e., controverted, and provided citations to the
record.
CONCLUSION
In accordance with the foregoing discussion, it is
RECOMMENDED53 that defendants’ summary judgment motion (Docket
Entry # 95) and SSHC’s motion for summary judgment (Docket Entry
# 91) be DENIED.

The standing issue raises factual questions as

53

Any objections to this Report and Recommendation must be
filed with the Clerk of Court within 14 days of receipt of the
Report and Recommendation to which objection is made and the
basis for such objection should be included. See Fed.R.Civ.P.
72(b). Any party may respond to another party’s objections
within 14 days after service of the objections. Failure to file
objections within the specified time waives the right to appeal
the order.  
104

to whether SSHC was the contracting party.

It is also

RECOMMENDED54 that Cave’s summary judgment motion (Docket Entry #
92) be:

(1) ALLOWED as to the implied contractual indemnity

claim in Count II of the third party complaint, the good faith
and fair dealing claim in Count III of the third party
complaint, the breach of contract claim brought by Burns in
Count III of the third party complaint, and Burns’ claim in
Count IV of the third party complaint; and (2) DENIED as to
Count I of the third party complaint, Artech’s claim in Count IV
of the third party complaint, the tort-based indemnity claim in
Count II of the third party complaint, and the breach of
contract claim brought by Artech in Count III of the third party
complaint.

The motion to deem SSHC’s responses to defendants’

Local Rule 56.1 statement admitted (Docket Entry # 109) is
DENIED except to the limited extent set forth previously in
Roman numeral V.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

54

See the previous footnote.

105