103 Mass. App. Ct. 1107
Mass. App. Ct.2023Background
- Plaintiff (Soep Painting) obtained partial summary judgment and an amended final judgment awarding $299,538.46 under the Prompt Payment Act against defendant Graycor (general contractor).
- Graycor appealed, arguing that an impossibility/frustration-of-purpose defense (attributed to COVID-19 and the owner’s financial troubles) should have been adjudicated before entry of judgment.
- Graycor’s appellate record was incomplete (missing motion papers, verified complaint, statement of undisputed facts); the Appeals Court obtained the missing trial-court filings on its own initiative.
- The panel evaluated impossibility doctrine in light of Le Fort Enterprises (COVID-19 context) and found the summary judgment record lacked a causal link showing Graycor’s performance was rendered impossible by the pandemic or the owner’s finances.
- The court treated the frustration/impossibility defense for argument’s sake (noting it was not asserted in the answer), but held the record did not raise a triable issue; therefore Tocci controlled and summary judgment was proper.
- The Appeals Court affirmed the Rule 54(b) judgment, remanded for further proceedings, and denied the plaintiff’s request for appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judgment on Prompt Payment Act claim could enter before adjudication of impossibility/frustration defense | Prompt Payment Act violation entitles subcontractor to judgment | Impossibility/frustration (COVID/owner insolvency) excused performance and should preclude judgment | Judgment affirmed: defendant failed to show triable issue of impossibility; absence of causal link fatal |
| Whether impossibility defense was timely preserved (waiver) | Defense was not properly pleaded and therefore waived | Argued frustration/impossibility was raised (13th affirmative defense) | Court noted defense was not asserted in the answer but, even treated as raised, record insufficient to defeat summary judgment |
| Adequacy of appellate record | N/A | Defendant failed to include key trial filings in record on appeal | Appeals Court obtained filings sua sponte and proceeded; failure to provide adequate record noted but did not change outcome |
Key Cases Cited
- Le Fort Enterprises, Inc. v. Lantern 18, LLC, 491 Mass. 144 (2023) (articulates modern impossibility doctrine in the COVID-19 context and requires a causal link between the event and nonperformance)
- Tocci Bldg. Corp. v. IRIV Partners, LLC, 101 Mass. App. Ct. 133 (2022) (controls when subcontractor’s Prompt Payment Act claim proceeds absent a viable impossibility defense)
- Boston Plate & Window Glass Co. v. John Bowen Co., 335 Mass. 697 (1957) (classic formulation of excuse for accidental perishing of the thing, underpinning impossibility)
- Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371 (1991) (discusses frustration of purpose as companion to impossibility)
- Mishara Constr. Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122 (1974) (background on impossibility/frustration doctrines in construction-contract disputes)