SOEP PAINTING CORP. v. GRAYCOR CONSTRUCTION COMPANY, INC., & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1173
SOEP PAINTING CORP.
vs.
GRAYCOR CONSTRUCTION COMPANY, INC., & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an amended separate and final
judgment, entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass.
820 (1974), awarding the plaintiff $299,538.46 on its breach of
contract claim. The judgment resulted from the allowance of the
plaintiff's motion for partial summary judgment, which was based
on its claim that the defendant had violated the Prompt Payment
Act, G. L. c. 149, § 29E. In essence, the defendant's argument
on appeal is that, even assuming that it violated the provisions
of the Prompt Payment Act, judgment should not have entered
until its impossibility defense had been adjudicated. 2
1 Office Tower Owner LP, Pacific Theatres Exhibit Corp., Podium
Developer LLC, and Podium Owner GP LLC, none of which are
involved in this appeal.
2 The defendant did not assert impossibility as an affirmative
defense in its answer. "Affirmative defenses are waived when
they are not raised in the first responsive pleading."
To begin with, we note that the defendant failed to furnish
an adequate record to support its arguments on appeal. See
Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019);
G.B. v. C.A., 94 Mass. App. Ct. 389, 397 n.13 (2018).
Specifically, the defendant did not include in the appellate
record the motion for partial summary judgment, the opposition
thereto, the statement of undisputed facts, or the verified
complaint. Nonetheless, on our own initiative, we have obtained
the relevant filings directly from the trial court, and
therefore proceed to the merits of the appeal.
In Le Fort Enterprises, Inc. v. Lantern 18, LLC, 491 Mass.
144, 151–152 (2023) (Le Fort), the Supreme Judicial Court
recently explained the doctrine of impossibility in the context
of the COVID-19 pandemic.
"The modern impossibility doctrine provides:
'[W]here from the nature of the contract it appears
that the parties must from the beginning have
contemplated the continued existence of some
particular specified thing as the foundation of what
was to be done, then, in the absence of any warranty
that the thing shall exist, the contract is to be
construed not as a positive contract, but as subject
Aronovitz v. Fafard, 78 Mass. App. Ct. 1, 8 (2010). That said,
the defendant's thirteenth affirmative defense asserted
frustration of purpose which is a "companion rule" to
impossibility. Chase Precast Corp. v. John J. Paonessa Co., 409
Mass. 371, 374 (1991), quoting Mishara Constr. Co. v. Transit-
Mixed Concrete Corp., 365 Mass. 122, 129 (1974). Accordingly,
for the sake of argument in this appeal, we will treat the
defense as having been timely raised.
2
to an implied condition that the parties shall be
excused in case before breach performance becomes
impossible from the accidental perishing of the thing
without the fault of either party . . . . The
misfortune which has occurred releases both parties
from further performance of the contract and gives no
right to either to claim damages from the other'
(ellipses in original)."
Id., quoting Boston Plate & Window Glass Co. v. John Bowen Co.,
335 Mass. 697, 700 (1957). The question here is whether the
summary judgment record could sustain the defendant's burden to
show that its performance was rendered impossible because of the
COVID-19 pandemic. See Le Fort, supra at 154. The defendant
failed to meet its burden because, as in Le Fort, the "absence
of a causal link is fatal." Id. at 155. Specifically, the
summary judgment record did not raise a triable issue of fact
that the owner's financial difficulties made it impossible for
the defendant, who was the general contractor, to perform its
obligations under the contract to the plaintiff, who was the
subcontractor.
"The fact that one is unable to perform a contract because
of the inability to obtain money . . . will not ordinarily
excuse nonperformance in the absence of a contract
provision in that regard. . . . [S]imply positing two facts
-- that the pandemic has occurred, and that a party finds
it very difficult or even impossible to perform its
contractual obligations -- is not enough." (Quotations and
citations omitted.)
Id. at 156.
3
Because the defendant did not raise a triable issue of fact
concerning impossibility of performance in this case, we need
not decide whether -- as an abstract matter -- an impossibility
defense must always be adjudicated before rendering judgment on
a subcontractor's breach of contract claim based on violation of
the Prompt Payment Act. Where, as here, the record was
insufficient to establish an impossibility defense, the judge
was correct to conclude the court's decision in Tocci Bldg.
Corp. v. IRIV Partners, LLC, 101 Mass. App. Ct. 133 (2022),
controlled in all material respects.
The amended separate and final judgment entered pursuant to
Mass. R. Civ. P. 54 (b) on August 1, 2022 is affirmed, and the
case is remanded for further proceedings. 3
So ordered.
By the Court (Wolohojian,
Shin & Ditkoff, JJ. 4),
Clerk
Entered: September 20, 2023.
3 We deny the plaintiff's request, made under Mass. R. A. P. 25,
as appearing in 481 Mass. 1654 (2019), for attorney's fees and
costs on appeal. The legal issue presented on appeal was not
frivolous.
4 The panelists are listed in order of seniority.
4