SUFFOLK CONSTRUCTION COMPANY, INC.
BENCHMARK MECHANICAL SYSTEMS, INC., & another.
Heard Date: May 2, 2016.
action commenced in the Superior Court Department on April
motion to dismiss was heard by Christine M. Roach, J.; a
motion for judgment on the pleadings was heard by her; cross
motions for summary judgment were heard by Janet L. Sanders,
J.; and entry of separate and final judgment was ordered by
Supreme Judicial Court granted an application for direct
Robert Popeo (Paul J. Ricotta with him) for the plaintiff.
W. Corner (Peter H. Sutton with him) for Benchmark Mechanical
P. Magnuson (Nelson G. Apjohn with him) for Reading
Present: Gants, C.J., Spina, Botsford, Duffly, Lenk, &
Hines, JJ. 
Reading Co-Operative Bank v. Suffolk
Constr. Co., 464 Mass. 543, 551 (2013) (Suffolk
I), we held that "G. L. c. 106, §§ 9-405,
9-607, and 9-608, provide a comprehensive scheme" that
allowed Reading Co-Operative Bank (bank) to require Suffolk
Construction Company, Inc. (Suffolk), to fully perform its
obligations under a collateral assignment of payments under a
subcontract between Suffolk and Benchmark Mechanical Systems,
Inc. (Benchmark), to secure a debt owed by Benchmark to the
bank even if the value of the collateral exceeded the amount
owed to the bank. After that decision, Suffolk commenced this
action to recover the surplus that resulted after the bank
applied that collateral to satisfy Benchmark's debt, plus
costs of collection, pursuant to G. L. c. 106, §
9-608. Suffolk's equitable claims for
implied subrogation and implied indemnification were
dismissed under Mass. R. Civ. P. 12 (b) (6) and 12 (c), 365
Mass. 754 (1974). Its common-law claims were dismissed as
time-barred under Mass. R. Civ. P. 56, 365 Mass. 824 (1974).
Suffolk appealed, and we granted its application for direct
appellate review. We now hold that Suffolk's common-law
claims are time barred, but it has stated equitable claims to
prevent unjust enrichment and a windfall for which relief can
following facts, taken mostly from Suffolk I, are
undisputed. Benchmark assigned to the bank, as collateral for
a loan it had with the bank, payments owed to Benchmark by
Suffolk pursuant to a subcontract. Suffolk agreed to send the
payments to the bank, but mistakenly sent them to Benchmark.
Suffolk sent twelve checks totaling $3, 822, 500.49 to
Benchmark between June 14, 2004, and December 30, 2004.
Benchmark deposited the checks to its account and never
forwarded the monies to the bank. The last deposit was made
on January 3, 2005. Benchmark ceased operations in July,
2005, and turned over its assets to the bank for liquidation.
Benchmark was dissolved as a corporation on May 31, 2007. At
that time Benchmark was indebted to the bank on its loan in
the amount of $1, 499, 149.42. As a result of the liquidation
of Benchmark's assets, the bank applied $430, 402.38 to
Benchmark's indebtedness. The bank then commenced an
action against Suffolk under G. L. c. 106, § 9-405, for
the full amount of the payments Suffolk should have sent to
the bank pursuant to the payment assignment. On appeal, we
held that § 9-405 displaced the common law, that the
bank was entitled to recover the full value of the assigned
collateral ($3, 822, 500.49) under § 9-405 rather than
its actual damages, and that the common-law doctrine of
mitigation did not apply. Id. at 546, 522, 555.
paid the judgment ordered by this court, which, with interest
and costs, amounted to $7, 640, 907.45 (judgment payment).
Suffolk then filed a multicount complaint, as amended, in the
Superior Court against the bank and Benchmark, asserting
common-law claims to establish itself as a judgment lien
creditor of Benchmark under G. L. c. 106, § 9-608 (a.)
(1) (C), or alternatively, as a "debtor" under
§ 9-608 (a.) (4), to recover any surplus remaining after
the bank applied Suffolk's judgment payment to
Benchmark's outstanding debt to the bank and the
bank's collection costs.  It also asserted equitable claims of
implied subrogation and implied indemnification. By agreement
of the parties, a preliminary injunction issued, enjoining
the bank from transferring to Benchmark any portion of the
surplus from Suffolk's judgment payment.
in the Superior Court (rule 12 judge) allowed in part the
bank's motion to dismiss under rule 12 (b) (6), and
Benchmark's motion for judgment on the pleadings under
rule 12 (c) . She dismissed the counts alleging
theories of subrogation and indemnification on grounds that
these claims sought to recover funds for which Suffolk had
been primarily, rather than secondarily, responsible, such
that Suffolk was not entitled to the equitable relief sought.
on cross motions for summary judgment under rule 56, a
different judge (rule 56 judge) allowed Benchmark's
motion as to the counts of Suffolk's complaint alleging
theories of restitution for unjust enrichment, reimbursement,
money had and received, and restitution for money paid by
mistake, on grounds that they were barred by the six-year
statute of limitations applicable to contracts. See G. L. c.
260, § 2. She also dismissed the count seeking a