Glynn v. City of Gloucester

Decision Date25 March 1980
Citation401 N.E.2d 886,9 Mass.App.Ct. 454
PartiesLawrence R. GLYNN, Receiver, v. CITY OF GLOUCESTER.
CourtAppeals Court of Massachusetts

Norman C. Ross, City Sol., for defendant.

Charles P. Burgess, Waltham, for plaintiff.


GREANEY, Justice.

The city of Gloucester appeals from orders denying its motions (predicated on objections) challenging subsidiary and general findings in a master's report and adopting the report and from a judgment awarding the plaintiff, as receiver of R. & J. Salvucci Corporation (Salvucci), $243,007.05 in damages (and $95,711.47 in interest) for several alleged breaches by the city of its road construction contract with Salvucci. 1 We reverse the judgment, holding that the report in its present form should not have been adopted but rather should have been recommitted for additional findings, summaries of the evidence, and production of certain exhibits.

The procedural background follows. Salvucci contracted to construct a road in and through the Cape Ann Industrial Park in Gloucester. Work commenced around July 1, 1972, and was completed on October 31, 1973. In July, 1976, Salvucci's receiver filed suit against the city. The amended complaint claimed that the contractor had incurred $528,753.76 in damages stemming from certain activities by the city in violation of the contract, among them a refusal to provide a disposal area for inorganic debris removed from the job, a failure seasonably to designate areas where suitable off-site borrow could be obtained, and a refusal to grant reasonable relief when the contractor encountered subsurface soil conditions at variance with those to be anticipated from the plans and test borings. The master, acting under a non-jury order of reference with evidence to be left unreported, found that the city had breached the contract: (1) by misrepresenting the subsurface soil conditions on the plans and thereafter refusing to allow Salvucci to deal with the actual conditions in a reasonable and economical fashion; (2) by seeking to impose a charge for use of the city dump in violation of a contract provision that promised a free disposal site for inorganic debris; (3) by ordering Salvucci to rebuild the road's embankments after rocks buried in their sides at the engineers' directions had caused concave slopes; and (4) by failing, as required by the agreement, to designate a suitable area for the excavation of usable gravel borrow and fill for the road's subgrade. The master also found that a memorandum signed by Salvucci's president just prior to the job's completion which stated that the contractor had no present or anticipated claims under the agreement against the city, did not constitute a waiver or release of the contractor's rights, and that if the memorandum was held sufficient to waive or release Salvucci's claims, it was signed under duress. Finally, the master found that, although Salvucci had failed to comply with the contract procedure for claiming payment for extras, the city was "aware that the corporation was incurring . . . extra costs and intended to make a claim in connection therewith."

Following the filing of the report, the city, punctiliously adhering to the requirements of Mass.R.Civ.P. 53, as amended, 367 Mass. 917 (1975), and Superior Court Rule 49(7) (1976), as explained by the cases (see post-1976, Miller v. Winshall, --- Mass.App. ---, --- - ---, a 400 N.E.2d 1306 (1980)), filed fifteen specific and detailed objections which challenged the legal sufficiency of specific parts of the report. Wherever the objections questioned the adequacy of the underlying evidence to support the master's subsidiary findings, fair summaries of the evidence were requested, and annexed to each such objection, as required by the rule, were references to the portions of the approved transcript (by volume, page and line) where the material and relevant testimony necessary for each summary could be found. Wherever the objection depended on a documentary exhibit, the exhibit or specific portion thereof that was needed was identified with particularity. Each objection, wherever pertinent, reasonably synopsized the city's view of the contents of the evidence it relied upon for support. Together with the objections, the city filed motions to strike the master's ultimate findings or to recommit for summaries of the evidence. Bills v. Nunno, 4 Mass.App. 279, 282-283, 346 N.E.2d 718 (1976).

1. The central task confronting the court based on the report's findings was one of contract interpretation. Daley v. J. F. White Contr. Co., 347 Mass. 285, 288, 197 N.E.2d 699 (1964). Gil-Bern Constr. Corp. v. Medford, 357 Mass. 620, 623, 260 N.E.2d 160 (1970). As discussed more fully in part 2 of this opinion, the judge needed to determine whether Salvucci's claims arose in connection with its performance of the contract. If so, recovery for extras would hinge on the contractor's showing that it had complied with the notice, claim and cost adjustment clauses in the agreement (paragraphs 17, 21, and 22 of the General Conditions), and with applicable provisions of the "Standard Specifications for Highways, Bridges and Waterways" adopted by the Commonwealth's Department of Public Works (the Blue Book), or in the alternative, that the city had waived or excused compliance with the necessary formalities. Certain statutes governing claims of this sort, as will be noted, also might apply to Salvucci's right to recover.

In our view, the master's findings, both subsidiary and general, are insufficient to permit a judge to address adequately the dispositive legal questions. The report does not (as it should) disclose on its face all the subsidiary findings which the master had in mind and upon which he based his general findings. Bills v. Nunno, supra, 4 Mass.App. at 282, 346 N.E.2d 718, and cases cited. The subsidiary findings on several of the vital issues are vague and non-specific and leave the general findings ultimately predicated thereon lacking in sufficient foundation. See Lattuca v. Cusolito, 343 Mass. 747, 752-753, 180 N.E.2d 658 (1962), and cases cited. By way of examples, the report fails to indicate what action Salvucci took to clarify an obvious deviation from the terms of the contract when the city sought to charge Salvucci for the use of its dump for disposal of inorganic as well as organic materials 2 (see John F. Miller Co. v. George Fichera Constr. Corp., --- Mass.App. ---, ---, b 388 N.E.2d 1201 (1979)); it fails to indicate precisely what the preliminary test-borings indicated; 3 it fails to find whether the extras had written or express approval by the project engineer, implying that one claim may not have (screening plant) and that another might have (slope reconfigured at engineers' "direction"); it leaves the damages only loosely accounted for with much emphasis on reasonableness. The report is replete with rulings of law which were not expressly addressed by the judge. Some of the other defects in the report are noted in the margin. 4 The master also failed to incorporate all relevant portions of the contract and such of the documents integrally related to it (plans, specifications, Blue Book and borings) that are needed for analysis of the legal questions. Only a few provisions of the contract are set out in the report, and as to one of those provisions, the city has made it appear that the provision quoted contains a serious omission which might affect and fatally impair certain general findings. 5 The Blue Book's provisions concerning scope and control of the work, and materials specifications should be made a part of the report. The judge should have exercised his right to call for the contract documents but did not, 6 and it will not help things for us to do so because resolution of the issues first requires additional findings of fact and completion of the summaries of evidence. A reading of the leading case of State Line Contractors, Inc. v. Commonwealth, 356 Mass. 306, 249 N.E.2d 619 (1969), which deals with claims analogous to the ones in issue here, aptly illustrates that this type of controversy cannot be determined without a study of all the pertinent contract documents based upon complete and detailed findings by the trier. All the areas where further findings or summaries are needed are pinpointed by the objections.

We conclude that the city has demonstrated probable error on the face of the report (Minot v. Minot, 319 Mass. 253, 258, 66 N.E.2d 5 (1946); contrast H. Piken & Co. v. Planet Constr. Corp., 3 Mass.App. 246, 248-249, 326 N.E.2d 725 (1975)), and that a sufficient foundation has been laid by the objections to necessitate the making of additional subsidiary findings or to make the absence of evidentiary support for the findings apparent. Bills v. Nunno, 4 Mass.App. at 282-283 n. 3, 346 N.E.2d 718. We also conclude that the judge could not have settled the legal questions raised by the report without examination of the pertinent exhibits specified by the objections, particularly the contract, and the various reports, documents, plans and specifications incorporated therein. Under these circumstances, the judge abused his discretion in denying the city's motions designed to put the report in a posture where it could be intelligently studied. S. D. Shaw & Sons v. Joseph Rugo, Inc., 343 Mass. 635, 639-640, 180 N.E.2d 446 (1962). Contrast Tzitzon Realty Co. v. Mustonen, 352 Mass. 648, 651, 227 N.E.2d 493 (1967); H. Piken & Co. v. Planet Constr. Corp., 3 Mass.App. at 248, 326 N.E.2d 725.

2. To speed disposition of the case, we briefly comment on the legal principles that are to be applied to the facts once the report is put in good order.

On a public construction contract, if actions or requirements of the public agency necessitate changes in the work as it progresses, thereby causing the contractor to perform extra work or incur...

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