United States District Court, D. Massachusetts
Order Filed Date April 28, 2016
GEORGE A. O'TOOLE. JR. UNITED STATES DISTRICT JUDGE
ORDER ON REPORT AND RECOMMENDATION
The magistrate judge to whom this matter was referred has filed a Report and Recommendation (dkt. no. 126) ("R&R") dealing with the several lengthy motions for full or partial summary judgment. One thing made clear from the extensive briefing is that, absent settlement, this case is moving to trial. After having carefully reviewed the relevant pleadings, party submissions, the R&R, and the objections to the R&R, I ADOPT the magistrate judge's recommendations.
Specifically, I agree with the magistrate judge, for essentially the reasons presented in the R&R, that summary judgment is appropriate in favor of Michael J. Cave, Corp. ("Cave Corp.") for (1) the claims for contractual indemnity in Count II of the Third-Party Complaint (dkt. no. 53), (2) the good faith and fair dealing claims in Count III of Third-Party Complaint, and (3) William Burn's claim in Count IV of the Third-Party Complaint. Because there appears to be no material difference in the indemnity claims, absent a later showing otherwise, summary judgment is also appropriate in favor of pro se party James J. Amirault d/b/a Jim's Pro Plastering as to the claims for contractual indemnity in Count VI of the Third-Party Complaint.
I agree as well with the magistrate judge that the plaintiffs motion for partial summary judgment on its Chapter 93 A claim cannot be granted on the disputed record. I go further, however, and conclude that the plaintiff has established as undisputed that, in the transactions at issue, it was not engaged in "trade or commerce" for the purposes of Massachusetts General Laws Chapter 93 A, Section 11. The First Circuit has stated that "where a nonprofit [party] is acting in furtherance of its core mission, " it is not engaged in "trade or commerce" within the meaning of Chapter 93 A. See Kunelius v. Town of Stow. 588 F.3d 1, 18 (1st Cir. 2009). Here, the evidence is clear that the plaintiff was seeking at all times to further its core charitable mission, maintaining the physical structure of the church as a safe and sound place for its religious services. There is no contrary evidence. It is not sufficient for the defendants to point out, for example, that repair of a capital asset could be deemed action in the course or advancement of trade or commerce. The evidence in the summary judgment record does not arguably point in different directions. It points unequivocally to the conclusion that the church stewards wanted the church property maintained in good condition so it could continue to be used safely as a church. The facts of the cases cited by the defendants where a nonprofit was found to be acting in the "business context" are vastly dissimilar to those in this case. Cf. Linkage Corp. v. Trs. of Bos. Univ.. 679 N.E.2d 191, 207-09 (Mass. 1997) (finding a university engaged in "trade or commerce" where it cut a private company out of a lucrative market). The plaintiffs Chapter 93 A claim is therefore appropriately grounded in Chapter 93A's Section 9, not Section 11.
As explained above, I ADOPT the magistrate judge's R&R (dkt. no. 126). The plaintiffs Motion for Partial Summary Judgment (dkt. no. 91) is DENIED, except that the claim is to be understood as properly asserted under Section 9 of Chapter 93A. Cave Corp.'s Motion for Summary Judgment (dkt. no. 92) is GRANTED in part to the extent described above and otherwise DENIED. The defendants' Motion for Summary Judgment (dkt. no. 95) is DENIED. The defendants' Motion to Deem Its Statement of Undisputed Material Facts Admitted (dkt. no. 109) is DENIED as determined by the magistrate judge.
It is SO ORDERED.
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)
MARIANNE B. BOWLER United States Magistrate Judge
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. (Docket Entry ## 92, 95). 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.
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, 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);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).
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. Corporacion De Puerto Rico Para La Difusion Publica, 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. 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).
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. (Docket Entry # 100, ¶ 2) (Docket Entry # 112, ¶ 2). SSHC's principle place of business is located at the same address. (Docket Entry # 100, ¶ 3) (Docket Entry # 112, ¶ 3). 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. (Docket Entry # 100-1, ¶¶ 7, 8) . On or about the summer of 1997, the Church was 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. (Docket Entry # 90, ¶ 6) (Docket Entry # 104, ¶ 6). 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." (Docket Entry #90-1, ¶ 9) . In his deposition, Lofgren testified that the Church seriously considered Artech and one other contractor. (Docket Entry 115-2, p. 44).
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 # 90-8, pp. 93-94). At one point, they discussed the existing roof. (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). The quote identified Cave as "Artech Project Manager." (Docket Entry # 90-5). Thomas Burns attests that Cave was not an employee of Artech. (Docket Entry # 97-3).
Burns signed the final quote as president. (Docket Entry # 90-5) . 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." (Docket Entry # 90-5). Below this language is a line for a "Purchaser 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. (Docket Entry # 90-5). 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". (Docket Entry # 90-5). 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." (Docket Entry # 90-5). 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 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. (Docket Entry # 100, ¶ 8) (Docket Entry # 112, ¶ 8). 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. (Docket Entry # 97-3). When Cave "first came on the job, " Lofgren asked him "to make darn sure that the exterior was watertight" before doing 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. (Docket Entry # 90-8, p. 36). 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). Goehle testified that the power washing uncovered and loosened mortar on the Church's exterior. (Docket Entry # 90-17, pp. 176-177). 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." (Docket Entry # 90-8, pp. 35, 129). 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. (Docket Entry # 90-12, pp. 140-141). 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 brick. (Docket Entry # 90-12, pp. 36-38) (Docket Entry # 90-19). After the repointing, the construction workers applied a Comproco Shield MX waterproof sealer. (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." (Docket Entry # 90-8, pp. 47-48). There was no single written document setting out the contract between Cave and Artech. (Docket Entry # 94, ¶ 5) (Docket Entry #102, ¶ 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 list" of 20 items requested by the building committee. (Docket Entry # 90-21). 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 , first week in October everything was completed." (Docket Entry # 90-8, p. 241). 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. (Docket 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. (Docket Entry # 115-1, p. 57). The insurance representative observed lifted shingles on the roof above the altar. (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." (Docket Entry 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. (Docket Entry # 90-8, pp. 242-44). 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. (Docket Entry # 90, ¶ 35) (Docket Entry # 104, ¶ 35). 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 "the response we need" from Cave. (Docket Entry # 90-47) (Docket Entry # 115-2, p. 79) (Docket Entry # 90, ¶ 37) (Docket Entry # 104, K 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. (Docket Entry # 90-47) (Docket Entry # 115-2, pp. 79-80). 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 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, 2 010, 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. (Docket Entry # 90, ¶ 42) (Docket Entry # 104, ¶ 42). 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." (Docket Entry # 90-50). 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 # 9-35) .
On November 13, 2010, Cave went to the Church to perform the repairs and repointing. (Docket Entry # 90, ¶ 43) (Docket 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." (Docket Entry # 90-52). 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). Burns did not respond to the email. (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 performed by Machnik and overseen by Cave, was "poorly done and not in accordance with industry standards." (Docket Entry # 90-56, p. 4). 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."(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." (Docket Entry # 90-58, p. 9). 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).
In addition to the improper repointing, Wilkin opined that the high pressure water cleaning process exposed formerly sealed mortar joints that were never repointed. (Docket Entry # 90-56, p. 4) . 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).
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." U.S. Const, art. Ill. § 2, cl. 1. As explained in the August 2014 Report and Recommendation, SSHC bears the burden to establish standing. 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." Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012). More specifically, it requires a "concrete and particularized injury, 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 Pagan v. Calderon, 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. 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 where under 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) . 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.
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, 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"). When asked about his relationship to SSHC during his deposition, Bourikas responded, "Who is South Shore Hellenic Church?" (Docket Entry # 115-1, p. 15). 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 ...