AGGREGATE INDUSTRIES - NORTHEAST REGION, INC.
HUGO KEY AND SONS, INC., & another.
Heard: April 13, 2016.
action commenced in the Superior Court Department on October
case was heard by Timothy Q. Feeley, J., and a motion for a
new trial was considered by him.
William T. Harrington for the defendants.
M. Young for the plaintiffs.
Present: Wolohojian, Kinder, & Neyman, JJ.
plaintiff subcontractor, Aggregate Industries - Northeast
Region, Inc. (Aggregate), contracted with the defendant
general contractor, Hugo Key and Sons, Inc. (Hugo Key), for
the supply of material and labor for a public works
construction project in Salem. A dispute arose about payment,
and Aggregate filed a complaint in the Superior Court
asserting contract and quantum meruit claims under G. L. c.
149, § 29, the Commonwealth's bond statute for
publicly funded construction projects, and violations of G.
L. c. 93A (c. 93A). Following a jury-waived trial, judgment
entered in favor of Hugo Key on all counts of the complaint,
with the exception of a discreet quantum meruit award, not
under the bond statute, in favor of Aggregate. Judgment also
entered in favor of Hugo Key on a c. 93A counterclaim.
Aggregate appeals, claiming the judge erred in his
application of contract principles and in his analysis of the
statutes at issue. We affirm in part, and reverse in part.
summarize the facts as found by the judge, supplemented by
undisputed information from the record. In 2011, Hugo Key and
Salem entered into a contract for the construction of the
Salem Wharf project. The contract was secured by a payment
bond in the amount of $1, 336, 925, furnished by the
defendant Argonaut Insurance Company (Argonaut). Hugo Key, in
turn, solicited bids from subcontractors for the portion of
the project that required bituminous concrete pavement work.
On or about January 14, 2011, Aggregate submitted an estimate
for the pavement work, which included two provisions relevant
to the present dispute. The first stated: "Grader
Service: $400.00/HR." The second was an escalation
clause, which provided for additional per ton charges for
bituminous concrete if the base price of liquid
asphalt increased. Aggregate submitted two revised
estimates in May, 2011. Hugo Key did not sign or accept any
of the estimates, and its representative, Sandy Key, informed
the Aggregate salesman, Vincent Venturo, "that Hugo Key
would not deal with Aggregate if the agreement included an
escalation clause for liquid asphalt."
reached no agreement, Hugo Key sent Aggregate a purchase
order dated May 17, 2011, that included the revised estimate,
but was silent as to grader service and the escalation
clause. Venturo signed the purchase order and returned it by
fax with a handwritten notation attempting to incorporate the
escalation clause into the agreement. In response, Sandy Key
immediately rejected the term; the trial judge found that
"Sandy Key told Venturo, and Venturo knew, that if
Aggregate insisted on the escalation clause, Hugo Key would
not give Aggregate the pavement work." Sandy Key then
prepared a new purchase order dated May 23, 2011, removing
Venturo's handwritten addition and adding "Purchase
order based on liquid asphalt price of $460.00 per ton"
for the express purpose of excluding the escalation clause.
With the approval of his manager, Venturo signed and accepted
the purchase order and work commenced. During the paving
project, Hugo Key determined that it required grading
services from Aggregate, which Aggregate performed, and then
billed at the price, quoted on the original estimate, of $400
completion of the project, by invoice dated July 6, 2011,
Aggregate billed Hugo Key $89, 989.90. Of that sum, $11, 400
was for "grader rental" and $10, 064.50 was for
"liquid asphalt escalation." Having received no
payment, on October 31, 2011, Aggregate commenced the present
action. The complaint alleges claims for breach of contract
and quantum meruit, with payment under the bond statute, G.
L. c. 149, § 29, and violations of c. 93A for the
wrongful withholding of the funds due. Shortly after the
complaint was filed, by check dated November 8, 2011, Hugo
Key paid Aggregate $68, 525.40, the sum not in dispute, and
indicated a willingness to pay a reasonable fee for the
grader rental. Aggregate refused the offer of payment,
and Hugo Key filed a counterclaim alleging violations of c.
a one-day bench trial, the judge issued his written findings
of fact and conclusions of law. He concluded that the
contract formed between Aggregate and Hugo Key did not
incorporate the escalation clause or the grader rental fee,
but that Aggregate was entitled to the fair and reasonable
sum of $7, 125 on its quantum meruit claim for grader rental.
Nevertheless, the judge dismissed the portions of the
complaint seeking recovery under G. L. c. 149, § 29,
reasoning that "[f]airness would be the victim if this
court permitted Aggregate to recover under the bond, with its
right to attorneys' fees, on a quantum meruit claim that
Hugo Key was ready, willing, and able to resolve at the fair
and reasonable value of the services provided at or about the
time this action was commenced." As for the competing c.
93A claims, the judge found in favor of Hugo Key, on the
ground that Aggregate commenced the present litigation as a
form of extortion, by means of the attorney's fee
provision of G. L. c. 149, § 29, to force Hugo Key to
pay for the escalation clause that it knew was not a part of
the contract. Rather than awarding damages on the c. 93A
judgment, however, the judge withheld the prejudgment and
postjudgment interest on Aggregate's $7, 125 quantum
meruit award. Aggregate moved for a new trial, which the
judge denied without a hearing. On Hugo Key's motion for
c. 93A attorney's fees and costs, the judge awarded a
total of $67, 319.
review the trial judge's findings of fact, including all
reasonable inferences that are supported by the evidence, for
clear error. See Twin Fires Inv., LLC v. Morgan Stanley
Dean Witter & Co., 445 Mass. 411, 420 (2005);
Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). The
judge's conclusions of ...