Opinion
No. 11–P–1823.
2012-07-3
ANNESE ELECTRICAL SERVICES, INC. v. TOWN OF BILLERICA.
By the Court (GRAHAM, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28
This appeal concerns a claim for construction payment for extra-contractual labor and materials that the plaintiff contractor, Annesee Electrical Services, Inc. (Annese), performed on a public construction project at the Marshall Middle School in Billerica involving an emergency replacement of the school's fire alarm system. It is undisputed that Annese performed the work in a timely and satisfactory manner. Annese subsequently submitted a change order seeking payment in the amount of $55,539 that the defendant Town of Billerica (town), the awarding authority for the work, refused to pay, thus prompting Annese to file a complaint in the Superior Court for money damages or, alternately, for damages in quantum meruit.
The town moved for summary judgment and the motion was allowed.
On appeal, Annese argues that there are genuine issues of material fact as to (1) whether the town wiring inspector's order to perform the additional work binds the town to pay for it, and (2) whether the town by the conduct of its officials and employees waived any contractual provision requiring that Annese obtain prior written approval and authorization of the additional work so as to receive compensation for it. We affirm. Background. Annese was hired under a written contract to replace the fire alarm system, which had failed during an inspection in late May, 2009. The contract, which identified Annese as the “Contractor,” the Billerica Public Schools as represented by its assistant superintendent of business (Frank J. Antonelli) as the “Owner,” and the contract price as $286,000, provides in relevant part:
The Supplementary General Conditions of the contract identified “THE OWNER” as “The Town of Billerica as represented by the School Committee.”
“In accordance with M.G.L.C. 44, Section 31C, this is to certify that an appropriation in the amount of this contract is available therefore and that the School Committee has been authorized to execute the contract and approve all requisitions and change orders.”
Paragraph I of the Supplementary General Conditions of the contract, entitled “ Building Laws,” provides:
“1. All work and materials shall comply in every respect with building laws, state and town regulations and the directions of the inspector of buildings and such building laws, regulations and directions are to be considered a part of the Contract to which it relates.”
The contract also allowed for minor change orders with prior approval of the town's project manager, but Annese does not argue that it ever obtained such approval.
The work was performed under an emergency waiver of the public bidding laws to allow completion before the next school year. During the work, Daniel P. Vitale, the town's wiring inspector, directed Annese to install additional box supports for devices located in the drop ceilings. According to an affidavit submitted by Annese's project manager, the parties considered “[t]he additional box supports that Mr. Vitale directed Annese to install ... [to be] additional work that was not included within Annese's original scope of work under the applicable contract.” Annese performed this additional work and, on or about September 16, 2009, submitted a proposal or request for payment of $55,539 for such work. The town disapproved the request, citing three grounds: (1) that Annese completed the additional work without following proper procedure for change orders and that the work was performed without authorization or approval by the town; (2) that the town had no funds available for this additional work; and (3) that the town wiring inspector maintained that this additional work is not extra work based on his direction to Annese during the rough wiring inspection and his interpretation of the State Electrical Code.
This work was also described as “additional work” in a letter dated September 9, 2009, to Antonelli from the town's project engineer: “2. Annese requested that the Billerica Wiring Inspector perform a ‘rough’ inspection. Although not required by the Mass. State Building Codes or NFPA, the Wiring Inspector required that all new fire alarm devices installed in the suspended ceilings be chained or cabled directly to the roof structure. Annese has complied with this requirement and has performed this additional work.” Finally, Annese alleged in its complaint that installation of the box supports “constituted additional work that was not included within Annese's original scope of work under the Contract.”
The September 16 submission refers to itself as a “proposal for cost associated with this additional work,” rather than a change order. In denying the proposal, the town's project engineer also referred to it as a change order. Either way, even Annese believed it required separate approval for the additional work, and sought it, belatedly, by this submission.
Discussion. “The standard of review, with respect to a grant of summary judgment is whether, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Beal v. Selectmen of Hingham, 419 Mass. 535, 539 (1995). In reviewing a grant of summary judgment, the reviewing court will “resolve all evidentiary inferences in favor” of the non moving party. Simplex Technologies, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).
The general conditions of the contract provide, in no uncertain terms, that “the Owner ... may order extra work or make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly.” It further provides that “[t]he Project Engineer has authority to make minor changes in the work, not involving extra costs and not inconsistent with the purpose of the building, but, otherwise, except in an emergency endangering life or property, no extra work or change shall be made unless in pursuance “of a written order from the Owner.” Nowhere in the contract is there authorization for the installation of additional box supports, which are the subject of this litigation, or for payment for such work.
The law in Massachusetts is clear that a municipality can only be legally bound to a contract it enters into upon full compliance with all statutory requirements. See Dagastino v. Commissioner of Correction, 52 Mass.App.Ct. 456, 458 (2001), and the doctrine of apparent authority to contract does not apply to officials of the Commonwealth or its municipalities. White Constr. Co. v. Commonwealth, 11, Mass.App.Ct. 640, 647 (1981). Furthermore, it is clear that a person who contracts with a public officer must be aware of the limits of that person's authority, and acts at his peril in ascertaining the extent of authority of the public officer with whom he deals. See Potter & McArthur, Inc., v. Boston, 15 Mass.App.Ct. 454, 459 (1983).
Finally, the clearly established law of the Commonwealth is that a claim for recovery of payment for work performed by a contractor or vendor in violation of the limitations on the contracting powers of municipal officers cannot be made upon the equitable principle of quantum meruit. Adalian Bros., Inc. v. Boston, 323 Mass. 629, 630–632 (1949).
In sum, the plaintiff failed to provide the judge with evidence that the owner, as defined in the contract, or his duly authorized agent, provided written approval or authorization for any amendment or modification to the contracted scope of work or any increase in the contract. Accordingly, for these, as well as the reasons set forth in the town's brief at pages 10–19, the judgment is affirmed.
So ordered.