CALM Golf, Inc. v. Read, et al. (Lawyers Weekly No. 09-055-17)
COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 13-01214
CALM GOLF, INC.
vs.
RENE J. READ, IN HIS CAPACITY AS TOWN MANAGER OF THE TOWN OF
DUXBURY, AND ROBERT TROY, ESQ.
MEMORANDUM OF DECISION AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This action arises out of an award to plaintiff, CALM Golf, Inc.(“Calm”), from the Town
of Duxbury (represented by its Town Manager, Rene Read) (“Duxbury”), to operate the North
Hill Country Club and Golf Course (“North Hill”).1 Calm alleges that Duxbury is liable to it for
breach of contract (Count I), violation of Chapter 93A (Count IV), and violation of the
Massachusetts Public Bidding Statute, G. L. 30(b) (Count VI).
Before the Court is Duxbury’s motion for summary judgment. A proper review of the
record shows that the core facts are largely undisputed. It also shows that this case boils down to
two simple, controlling propositions. First, did Duxbury’s award to Calm equate to a contract,
either express or implied? Second, was Duxbury required to conclude a formal contract with
Calm despite the fact that, as the result of litigation brought by a disappointed bidder – the thenextant
manager of North Hill, Johnson Golf Management, Inc. (“Johnson) – this Court ordered
Duxbury not to contract with Calm but rather to continue its contract with Johnson?
1 Count II, alleging misrepresentation against Duxbury, and Counts III and V, all of the counts against defendant
Robert Troy, were previously dismissed by this Court.
As the answer to both questions is “no,” Duxbury’s motion for summary judgment is
ALLOWED.
BACKGROUND
The following relevant facts are either undisputed or presented in the light most favorable
to the non-moving party, in accordance with the dictates of Mass. R. Civ. P. 56.
In September 2008, Duxbury published a Request for Proposal (“RFP”) pursuant to G.L.
30B for a five-year contract to operate North Hill. Johnson was then the manager of North Hill.
Calm and Johnson bid for the contract. In December 2008, and for reasons not relevant here,
Duxbury rejected all bids.
On December 12, 2008, Johnson sued Duxbury in this Court (Middlesex Superior Court)
in Johnson Golf v. Town of Duxbury, et al., 08-04641, arising from the bid process (“the
Johnson Litigation”). On January 8, 2009, the Court in the Johnson Litigation issued a
temporary restraining order requiring that “Johnson Golf Management Inc., shall continue to
manage the North Hill Country Club Golf Course until such time as defendant Town of Duxbury
has awarded a new management contract pursuant to G.L. c. 30B rebidding process that is to
begin on January 9, 2009 or until further order of the Court.”
On or about January 9, 2009, Duxbury issued a second RFP for the operation of North
Hill for five years. Johnson and Calm bid again. Calm’s bid was in excess of $ 500,000.
By memorandum dated January 15, 2009, Duxbury awarded the contract to Calm, writing
that it “make[s] the Award to Calm Golf, subject to the execution of a contract reflecting the
terms of the RFP acceptable to the Town.”
No such contract was ever entered into after this award.
On January 20, 2009, Johnson filed an amended complaint in the Johnson Litigation. On
January 21, 2009, the Court in that case issued a second temporary restraining order, prohibiting
Duxbury “from executing a contract with the defendant CALM Golf and from awarding the
contract to any person or entity other than Johnson Golf.”
Thereafter, on February 2, 2009, the Court in the Johnson Litigation allowed Johnson’s
request for injunctive relief, ordering that “Johnson Golf Management, Inc. shall continue to
manage the North Hill Country Club and Course until such time as [the Johnson Litigation] is
resolved or until further order of this Court,” and ordering that the then-agreement between
Duxbury and Johnson “shall remain in place and in force until the resolution of the [Johnson
Litigation] or until further order of this Court.”
On or about October 20, 2010, while the Court’s February 2, 2009 order was still in
force, Calm’s principals met with the Duxbury, at which meeting Duxbury asked, and Calm
confirmed, that it was ready, willing and able to take over North Hill on a temporary basis in the
fall of 2010 if needed. No written agreement resulted from this meeting, and Calm did not step
in to manage North Hill in the fall of 2010 or at any other point.
On October 25, 2010, the Court in the Johnson Litigation vacated the February 2, 2009
injunction, but re-instated it on November 24, 2010, writing that “[i]t was not the Court’s
intention…to permit the town to award the contract to another company during the pendency of
this action.” The Court again enjoined Duxbury “from executing a contract for operation of the
North Hill Golf and Country Club until the conclusion of this litigation or further order of this
Court,” and ordered that Johnson “shall continue to manage” North Hill under the terms of
Johnson’s contract with Duxbury until the Johnson Litigation was concluded or until further
order of the Court. The Court also noted, however, that its order “does not forbid the Town of
Duxbury from rebidding the contract.”
Following the November 24, 2010 order, Duxbury rejected all bids from the January
2009 bidding process, revoked its award to Calm, and indicated it would re-bid the contract
under G.L. c. 30B. In March 2011, Duxbury issued a new RFP for North Hill. Neither Calm nor
Johnson submitted bids; in fact, only one bidder submitted a bid. On March 24, 2011, that
bidder was awarded the contract.
On March 30, 2011, the Court in the Johnson Litigation vacated its November 24, 2010
order.
Trial was thereafter conducted in the Johnson Litigation. On April 24, 2013, the jury
found in favor of Johnson that Duxbury had violated G.L. c. 30B by awarding the North Hill
contract to Calm following the January 2009 RFP process.
DISCUSSION
Summary judgment is appropriate when the record shows that “there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Mass. R. Civ. P. 56(c); see DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The
moving party bears the initial burden of demonstrating that there is no triable issue and that he or
she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing
Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass.
706, 716 (1991). In reviewing a motion for summary judgment, the Court views the evidence in
the light most favorable to the non-moving party and draws all reasonable inferences in his or her
favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll.
of the Holy Cross, 388 Mass. 16 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co.,
429 Mass. 196, 197 (1999).
As noted above, the first question in this case is whether Duxbury’s award to Calm
equated to an express or implied contract. On its face, the award was not a contract, and was
expressly subject to a contract later being negotiated between Duxbury and Calm. See G.L. c.
30B, §17(a) (“All contracts in the amount of $ 10,000 or more shall be in writing”); G.L. c. 259,
§1 (contracts for performance in excess of one year must be in writing signed by the party to be
charged); see also, e.g., Mangano v. Town of Wilmington, 51 Mass. App. Ct. 857, 860–61
(2001) (citations, footnote omitted) (“The request for bids was merely a solicitation for offers.
No steps were taken by the town which could be interpreted as an acceptance of [the] offer. See
Dunham v. Boston, 94 Mass. 375, 12 Allen 375, 377, 1866 WL 6376 (1866) (no contract where
municipal board voted to recommend sale of a parcel of land, vote was approved by the mayor,
and the city solicitor prepared the deed, but the deed was not signed because alderman objected);
Edge Moor Bridge Works v. Inhabitants of County of Bristol, 170 Mass. 528, 531–533, 49 N.E.
918 (1898) (no contract where county commission had invited bids for a project, accepted the bid
of the plaintiff, notified the plaintiff of the acceptance but then refused to execute a contract for
construction, because “[t]he vote was but a step in the negotiation … [and] execution of the
contract was an act to be done in the future”); Al’s Lunch, Inc. v. City of Revere, 324 Mass. 472,
474–476, 87 N.E.2d 5 (1949) (no contract found where city council voted to authorize the city
solicitor to take further steps toward sale of real estate, even where vote was communicated to
plaintiff). Compare Whiting, 370 Mass. at 672, 351 N.E.2d 493 (contract found where
commissioners voted to approve and accept bid, communicated acceptance to bidder, and
requested and received balance of bid); Hunt, 25 Mass.App.Ct. at 627, 521 N.E.2d 751 (sellers
accepted bid offer by congratulating highest bidder, returning checks to other bidders, depositing
check of highest bidder, and signing purchase and sale agreement)”). Nor did the subsequent
discussions between the parties in October 2010 ripen into a contract.
There is law that “[w]here the bid solicitor is a governmental entity, numerous cases
impose liability on an implied contract theory … creat[ing] an implied contract obligating the bid
solicitor to those conditions” which can result in an award of bid preparation costs for “the
failure to give fair consideration to a bidder in accordance with the statutory procedure,” New
England Insulation Co. v. Gen. Dynamics Corp., 26 Mass. App. Ct. 28, 30–32 (1988), or, if bad
faith is shown, lost profits under certain facts. See, e.g., Peabody Const. Co. v. City of Boston,
28 Mass. App. Ct. 100, 105–06 (1989) (citations omitted) (“in the absence of bad faith, a bidder
wrongfully deprived of a contract may recover only his bid preparation costs. However, if a
bidder has complied with all requirements but is deprived of the contract through some conduct
of the awarding authority tantamount to bad faith, then the recovery of lost profits is the measure
of damages”). However, in this case, no rational fact finder could find that there was a contract,
either express or implied, or that Duxbury acted out of bad faith by failing to conclude a contract
with Calm. Simply put, it is indisputable that this Court specifically prohibited Duxbury from
concluding a contract with Calm and specifically ordered Duxbury to continue its contract with
Johnson. Duxbury thus had no choice but to abandon the January 2009 bid process and start
anew.
Accordingly, the first question – was there a contract here – must be answered no. The
second question posed by this case – was Duxbury required to conclude the contract with Calm
despite the Court’s order – must also be no. Had Duxbury done so, it would have been in
violation of this Court’s clear orders and been liable for contempt.
Under these facts, Calm cannot as a matter of law show that Duxbury breached a contract
(Count I) and also cannot show that Duxbury violated Chapter 93A (Count IV) or violated G. L.
30(b) (Count VI).
ORDER
For the foregoing reasons, Duxbury’s motion for summary judgment on Counts I, IV and
VI is ALLOWED.
______________________________
MICHAEL D. RICCIUTI
Justice of the Superior Court
Dated: December 15, 2017