Civil Action No. 04-5372.Commonwealth of Massachusetts Superior Court. SUFFOLK, SS.
August 28, 2006

PAUL E. TROY, Justice of the Superior Court

Plaintiff, Les Constructions Beauce Atlas, Inc. (“Beauce Atlas”), brought this breach of contract action against defendant, T.R. White Co., Inc. (“TRW”) seeking reimbursement for work Beauce Atlas performed which it argues was outside the scope of the construction contract that existed between the parties. TRW has moved for partial summary judgment asserting that Beauce Atlas was obligated to perform the particular disputed work under the terms of the contract and no further payment is due. For the foregoing reasons, Defendant’s Motion for Partial Summary Judgment is DENIED.

The summary judgment record reflects that TRW was the general contractor for the construction of Pierce Middle School (the Project”) with the Town of Milton (“Town”) and subsequently hired Beauce Atlas as a subcontractor to perform certain structural steel work. Prior to entering into a contract with TRW, Beauce Atlas prepared a bid for steel fabrication and erection for the overall project in the amount of $1,175,000 on July 23, 2002. This quotation specifically excluded “clip angle for C.M.U. wall” otherwise known as restrainer steel angles and channels for bracing tops of masonry partitions and walls (the “restrainer clips”). After submitting the initial bid and negotiating with a TRW representative, Beauce Atlas’ President, Germain Blais (“Germain Blais”), made a decision to reduce Beauce Atlas’ quoted price for the steel fabrication work to $1,165,000. Although the restrainer clips were never mentioned in the negotiations between Beauce Atlas and TRW at that time, Beauce Atlas assumed the reduction in price still reflected its initial quote which did not include the restrainer clips. TRW, in turn, used this price in its general contract bid with the Town and was awarded the general contract.

On or about August 21, 2002, the parties entered into a “Standard Form Agreement Between Contractor and Subcontractor” (the “Agreement”). The Agreement between TRW and Beauce Atlas incorporated by reference the general contract between TRW and the Town. The Agreement also incorporated by reference the following items: “Drawings, Specification, Addenda issued priorto execution of the Agreement between [Town] and [TRW] and Modifications issued subsequent to the execution of the Agreement between the [Town] and [TRW], whether before or after the execution of this Agreement.” (Emphasis added.) One of the drawings/addenda included prior to execution of the Agreement was labeled RS2-7.[1] The RS2-7 sketch plainly showed on its face that the restrainer clips were to be furnished and installed by the “structural steel subcontractor,” or, Beauce Atlas. The addendum supporting this change from the Town, through its design architect, occurred on or about June 24, 2002, almost two months prior to the execution of the Agreement between TRW and Beauce Atlas.

Despite the RS2-7 sketch, the general contract’s project specifications provided that responsibility for the restrainer clips fell upon the subcontractor for metal fabrications, which in this case, was Capco Steel Corporation (“Capco”). Pursuant to project specification § 05500, the metal fabrications subcontractor was responsible for “[r]estrainer steel angles and channels for bracing tops of masonry partitions and walls.” Moreover, project specification § 05500 specifically excluded from Beauce Atlas’ responsibility “metal work generally performed by the miscellaneous metals trade and which are not otherwiseprovided under Section 05100, Structural Steel.” (Emphasis added.) In turn, the scope of work for the structural steel subcontractor in project specification § 05100 included the “[f]urnishing of leveling plates, . . . base plates, bracing and connections (bolted angles, channels, stiffeners, . . . clips,
supports for steel deck at columns, . . . and erection bolts).” Section 05100 also excluded work that was to be performed by the metal fabrications subcontractor pursuant to § 05500 under the general contract. Moreover, the custom within the trade was that the metal fabrications subcontractor, in this case Capco, was responsible for installation of restrainer clips.

Well after the Project was underway, a dispute arose regarding the responsibility for installation of the restrainer clips. Under protest, Beauce Atlas performed the work without a modification in the contract price and after notifying TRW that the clips were specifically excluded in its initial bid. As late as December 10, 2003, TRW had continuing correspondence with its metal fabrications subcontractor, Capco, about the clips. Beauce Atlas argues that this demonstrated a mutual mistake existed because TRW also believed that Capco was responsible for furnishing and installing the restrainer clips.

DISCUSSION Summary Judgment Standard
1 Summary judgment shall be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso
v. Comm’r of Correction, 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v.Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial.Flesner v. Technical Communications Corp., 410 Mass. 805, 809
(1991); Kourouvacilis v. General Motors Corp.,410 Mass. 706, 716 (1991).

The non-moving party cannot conjure up genuine issues of material fact or merely rely on the allegations or denials of her pleading. See Mass. R. Civ. P. 56(e). Conclusory statements, general denials, and allegations not based on personal knowledge are insufficient to avoid summary judgment. Madsen v. Erwin,395 Mass. 715, 721 (1985). Rather, the non-moving party bears the burden of introducing enough countervailing data to demonstrate the existence of a genuine issue for trial. See Wooster v.Abdow Corp., 46 Mass. App. Ct. 665, 673 (1999).

A mistake is a “belief that is not in accord with the facts.” Restatement (Second) of Contracts § 151. See also Dover PoolRacquet Club, Inc. v. Brooking, 366 Mass. 629, 632-633 (1975). The mistake must be with respect to a fact material and essential to the contract which precludes the essential “meeting of the minds” necessary for the formation of a valid contract. LaFleur
v. C.C. Pierce Co., Inc., 398 Mass. 254, 258 (1986).

Mistakes are generally categorized as either mutual or unilateral. A mutual mistake is one shared by both parties to the contract and it is necessary that both parties to the contract be mistaken about a basic assumption on which the contract was made.Mickelson v. Barnet, 390 Mass. 786, 791 (1984). O’Reilly’sCase, 258 Mass. 205, 208 (1927). The existence of a mutual mistake makes the contract voidable at the option of the adversely affected party. O’Reilly’s Case, 258 Mass. at 208. On the other hand, a unilateral mistake occurs when only one party is mistaken as to a material, essential fact within the contract, or the other party knew or should have known of the mistake. SeePolaroid Corp. v. The Travelers Indemnity Co., 414 Mass. 747, 756 (1993). The mistaken party may avoid a contract on the grounds of unilateral mistake if he does not bear the risk of the mistake and (1) enforcement of the contract would be unconscionable or (2) the other party caused or had reason to know of the mistake. First Safety fund Nat’l Bank v. Friel,23 Mass. App. Ct. 583, 588 (1987). See also Restatement (Second) of Contracts § 153. A party seeking recovery or reformation of a contract based upon unilateral mistake must present full, clear, and decisive proof that a mistake occurred, and “[t]he parole evidence rule does not bar extrinsic proof of intent in these circumstances.” Polaroid, 414 Mass. at 756.

Based upon the contract read as a whole and the conduct of the parties, summary judgment must be denied because: (1) there is a dispute of fact reflected in the record as to who was responsible for the furnishing and installation of the restrainer clips; and (2) even if this court were to determine from the face of the Agreement that Beauce Atlas was responsible, there is a factual issue as to whether a mutual mistake had been made. The record reflects that after Germain Blais negotiated with TRW as to the overall contract price, the price was reduced $10,000 with both parties understanding that the initial quotation, with exclusions, remained in effect; the general contract specifications incorporated by reference in the parties’ Agreement reflected that the metal fabricator — here, Capco — was responsible for the clips, and not Beauce Atlas as the structural steel subcontractor despite the RS2-7 drawing; and, the correspondence between TRW and Capco presents a factual issue of mutual mistake in that TRW itself was at least initially unclear about who was responsible for the restrainer clips.

For the foregoing reasons, it is hereby ORDERED that Defendant’s Motion for Partial Summary Judgment be DENIED.

[1] Also included were Drawings S4-1-5 S4-1-6 but for purposes of this motion, only reference to Drawing RS2-7 is relevant.