Cumberland Farms, Inc. v. Tenacity Construction, Inc. (Lawyers Weekly No. 12-161-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT CIV. NO. 15-1589 BLS 2 CUMBERLAND FARMS, INC., Plaintiff vs. TENACITY CONSTRUCTION, INC. Defendant MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT This case arises from a project for the construction of facilities located in Rhode Island and Massachusetts. The plaintiff Cumberland Farms, Inc. (CFI) is the owner of the properties on which the facilities were built. The defendant Tenacity Construction, Inc. (Tenacity) was the general contractor. CFI instituted this action to recover the difference between what it believes that it was obligated to pay Tenacity for its work and what it ended up paying, taking into account those amounts that CFI paid to Tenacity’s subcontractors on Tenacity’s behalf. Tenacity counterclaimed, maintaining that CFI wrongfully failed to pay Tenacity for costs attributable to winter conditions and that, to the extent it could not pay its subcontractors, this was due to CFI’s breach of contract. CFI now moves for summary judgment as to Tenacity’s counterclaims against it. Tenacity has cross moved as to the same claims, asking this Court to enter judgment in its favor. This Court concludes that CFI’s Motion must be Allowed and that Tenacity’s Motion must be Denied. BACKGROUND The following facts in the summary judgment record are undisputed.1 CFI owns properties 1 As CFI points out in its Reply Memorandum, Tenacity’s response to several of CFI’s fact allegations contain improper argument or unsupported denials. This does not comply with Rule 9(A)(b)(5). This approach is also not effective advocacy, since it obscures rather than illuminates the summary judgment record without advancing Tenacity’s position on the issues in any respect. 2 located at 15 Main Street in Northborough, Massachusetts (the Northborough Property) and at 2643 Hartford Avenue in Johnston, Rhode Island (the Johnston Property). CFI retained Tenacity as general contractor for the construction of a gas station/convenience store on the Northborough Property (the Northborough Project) and construction of a similar facility together with office space on the Johnston Property (the Johnston Project). On September 23, 2013, the parties entered into two construction contracts (the Master Contract) that governed Tenacity’s work. Ex. 8 of Joint Appendix. Under the Master Contract, Tenacity was responsible for paying the subcontractors on both Projects. The Master Contract expressly incorporated two Work Orders, one for each Project. The Northborough Project Work Order provided that work was to start at the Northborough Property on October 7, 2013 and be completed within 112 days (January 27, 2014). The Johnston Project Work Order stated that work was to begin November 4, 2013, and was to be completed within 140 days (March 24, 2013). Both projects were substantially delayed: the Johnston Project was completed May 6, 2014 […]

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