4 MVR, LLC v. Warren W. Hill Constr. Co.
| Decision Date | 13 September 2016 |
| Docket Number | Civil Action No. 12-10674-DJC |
| Parties | 4 MVR, LLC, Plaintiff, v. WARREN W. HILL CONSTRUCTION COMPANY, INC. and WARREN W. HILL, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
(Revised) MEMORANDUM AND ORDER
Plaintiff 4 MVR, LLC ("4 MVR") brought this action relating to the construction of a residence in Nantucket, Massachusetts against defendants Warren W. Hill ("Hill") and Warren W. Hill Construction Company, Inc. ("Hill Construction"). 4 MVR has moved for summary judgment. D. 232; D. 240. Hill also moves for summary judgment. D. 234; D. 276. Hill moves to strike certain materials 4 MVR submitted in support of its motion for summary judgment. D. 249; D. 259; D. 262; D. 303. 4 MVR moves to strike certain materials Hill submitted in support of his motion for summary judgment. D. 288; D. 295. For the reasons stated below, the Court DENIES in part and ALLOWS in part Hill's motion for summary judgment. The Court DENIES in part and ALLOWS in part 4 MVR's motion for summary judgment. The Court DENIES the various motions to strike.
The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). If the movant meets its burden, the non-moving party may not rest upon the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010) (citation omitted). "As a general rule, that requires the production of evidence that is 'significant[ly] probative.'" Id. (quoting Anderson, 477 U.S. at 249) (alteration in original).
Unless otherwise noted, the following facts are undisputed and drawn from the parties' various statements of fact. D. 239; D. 254; D. 279; D. 283; D. 287; D. 299; D. 300. Hill began building houses on Nantucket in 1976. D. 239 ¶¶ 20-21; D. 283 ¶¶ 20-21. In 1982, Hill formed Hill Construction and began working on commercial and residential construction projects. D. 239 ¶ 24; D. 254 ¶ 5; D. 283 ¶ 24.
4 MVR is a limited liability company that owns the property located at 4 Middle Valley Road in Nantucket (the "Property"). D. 239 ¶ 1; D. 254 ¶ 1; D. 283 ¶ 1. Donald A. Burns ("Burns") controls 4 MVR and 4 MVR's sole member is the Donald Alan Burns Revocable Trust, a trust that was established by Burns. D. 239 ¶¶ 2, 4-6; D. 287 ¶ 2; D. 283 ¶ 2, 4-6.
In 2010, 4 MVR solicited bids to build a residence for Burns on the Property (the "Project"). D. 239 ¶¶ 59-61, 86-91; D. 254 ¶¶ 7, 12-14; D. 283 ¶¶ 59-61. After reviewingcontractors, Burns identified four contractors, including Hill Construction, he deemed qualified to bid on the Project. D. 239 ¶ 65; D. 283 ¶ 65. On February 1, 2010, Hill Construction submitted a bid in the amount of $22,751,741. D. 239 ¶ 86; D. 254 ¶ 12; D. 283 ¶ 86. On that same day, Hill Construction's bid was accepted by 4 MVR as the lowest bid. D. 239 ¶ 88; D. 283 ¶ 88.
4 MVR and Hill Construction thereafter engaged in contract negotiations. D. 239 ¶¶ 99-184; D. 254 ¶¶ 14-16; D. 283 ¶¶ 99-184. 4 MVR and Hill Construction were both represented by counsel during their negotiations. D. 239 ¶¶ 79, 99-103; D. 254 ¶ 22; D. 283 ¶¶ 79, 99-104, 165. Burns was involved with the negotiations on behalf of 4 MVR and representatives from the architecture firm on the Project, Jacobsen Architecture LLC - including Heidi Leinbach ("Leinbach"), Hugh Newell Jacobsen ("Hugh Jacobsen") and Simon Jacobsen - assisted with awarding and finalizing 4 MVR's contract with Hill Construction. D. 239 ¶¶ 36-38, 46, 48, 94-97, 102, 104; D. 283 ¶¶ 36-38, 46, 48, 94-97, 102, 104. Hill was involved in the negotiations on behalf of Hill Construction. D. 239 ¶ 95, 110-111; D. 283 ¶ 95, 110-111. During the negotiations, 4 MVR and Hill Construction discussed, inter alia, sources of funding available to Hill Construction, D. 239 ¶¶ 113-116; D. 254 ¶¶ 16, 31, 71; D. 283 ¶¶ 113-116, and methods and requirements for handling the applications for payment Hill Construction periodically submitted to 4 MVR for work completed ("Pay Application"). D. 239 ¶¶ 160-162, 165; D. 283 ¶¶ 160-162, 165.
At some point during the negotiations between 4 MVR and Hill Construction, 4 MVR attempted negotiations with the second lowest bidder, Woodmeister. D. 239 ¶ 133; D. 254 ¶ 48. The negotiations between Woodmeister and 4 MVR, however, were ultimately terminated and 4 MVR elected to revisit negotiations with Hill Construction. D. 239 ¶¶ 155-157; D. 254 ¶¶ 77, 79; D. 283 ¶¶ 155-157.
On or about February 20, 2010, Hill Construction and 4 MVR executed the contract governing the Project. D. 239 ¶¶ 78, 105, 185; D. 254 ¶¶ 21, 23-24. The contract consisted of modified versions of AIA Document A101-2007 (the "Agreement") and AIA Document A201-2007 (the "General Conditions") (collectively, the "Contract"). D. 239 ¶¶ 78, 105, 188; D. 254 ¶ 21. The Contract was a fixed price contract whereby the Project was to be completed for a pre-determined lump sum price plus any change orders. D. 239 ¶¶ 84-85; D. 254 ¶¶ 20, 25; D. 283 ¶¶ 84, 85. The Contract sum was for the stipulated amount of $22,751,741. D. 239 ¶ 186; D. 283 ¶ 186. Pursuant to a contract between 4 MVR and Jacobsen, Jacobsen's responsibilities during the Project included providing administration of the Contract, visiting the construction site, informing 4 MVR as to the progress of the Project and reviewing and certifying Pay Applications. D. 239 ¶ 39; D. 283 ¶ 39.
Over the course of the Project, Hill Construction submitted 42 Pay Applications for work performed and 4 MVR paid certain of the Pay Applications that Hill Construction submitted. D. 239 ¶¶ 220, 324, 326-327; D. 254 ¶¶ 186-188, 267-270. The Project ultimately experienced delays and was expected to exceed the initially agreed upon budget. D. 239 ¶ 375-376, 384-385; D. 254 ¶¶ 297, 302-303; D. 283 ¶¶ 375-376. On January 11, 2012, 4 MVR terminated the contract with Hill Construction. D. 239 ¶ 397; D. 254 ¶ 317; D. 283 ¶ 397. 4 MVR then hired Woodmeister to complete the Project. D. 239 ¶ 399; D. 254 ¶ 319; D. 283 ¶ 399.
On April 16, 2012, 4 MVR instituted this action against Hill and Hill Construction. D. 1. In its amended complaint, 4 MVR asserted claims for breach of contract, breach of express and implied warranty and breach of fiduciary duty against Hill Construction. D. 29 at 1. In its amended complaint, 4 MVR asserted a claim against Hill for misrepresentation. Id. On January 25, 2013, the Court granted Hill's motion to dismiss 4 MVR's misrepresentation claim. D. 50. On March18, 2013, Hill Construction filed a suggestion of bankruptcy with this Court. D. 60; D. 254 ¶ 320. On March 20, 2013, the Court dismissed this action without prejudice to allow for proceedings in bankruptcy court. D. 61.
On January 15, 2014, the Court granted 4 MVR's motion to reopen this action only as against Hill. D. 74. In reopening this action, the Court permitted 4 MVR to file an amended complaint asserting a claim for misrepresentation and a claim for violation of Mass. Gen. L. c. 93A against Hill. Id. On January 16, 2014, 4 MVR filed its second amended complaint. D. 81. Hill, in turn, asserted in its answer a counterclaim against 4 MVR for breach of contract and third party claims against Burns for contribution, violation of Mass. Gen. L. c. 93A, misrepresentation, fraud and breach of contract. D. 82 at 20-22. Hill's claims for breach of contract were dismissed pursuant to an assented to motion. D. 114. On June 24, 2015, the Court allowed 4 MVR's motion for judgment on the pleadings seeking dismissal of Hill's third party claims against Burns for contribution, violation of Mass. Gen. L. c. 93A, misrepresentation and fraud. D. 194. Thus, at this juncture in the litigation, only 4 MVR's claims for misrepresentation and violation of Mass. Gen. L. c. 93A against Hill remain.1
4 MVR moves for summary judgment on all of these claims. D. 232; D. 240.2 Hill moves for summary judgment on the same claims. D. 234. The parties seek to strike certain of the otherparty's filings, D. 249, 259, 262, 288, 295, 303, which the Court addresses below. The Court heard the parties on the pending motions and took these matters under advisement. D. 293.
Hill seeks to strike certain of 4 MVR's allegations as "new fraud allegations." D. 262; D. 263 at 1.
First, Hill contends that the following allegations relating to Pay Applications that appear in 4 MVR's summary judgment motion were not asserted in 4 MVR's second amended complaint: (1) 4 MVR's allegation that Hill made false representations relating to retainage paid to subcontractors for Line Items #33 (cabinet hardware) and #42 (tile & tile floors); (2) 4 MVR's allegation that Hill made false representations regarding the percentage of work completed on the Project and that the work was completed in accordance with the Contract as it related to the tile installation completed by Stephen Silverio Tile ("Silverio Tile"); and (3) 4 MVR's allegation that Hill's representation that work was completed in accordance with the Contract was false...
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