COSTA BROTHERS MASONRY, INC. v. TOWN OF HINGHAM & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-1021

COSTA BROTHERS MASONRY, INC.

vs.

TOWN OF HINGHAM & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Costa Brothers Masonry, Inc. (Costa), filed

a complaint in the Superior Court seeking declaratory relief

pursuant to G. L. c. 231A, § 1, against the defendants town of

Hingham (town), Colantonio, Inc. (Colantonio), and Kaestle Boos

Associates, Inc. (Kaestle). Costa claimed that the defendants

violated the public bid statute, G. L. c. 149, § 44F (1) (a), by

requiring it to perform work not specified in the town's

advertisement for bid for a public construction project known as

the "New Public Safety Facility" (the project). The disputed

work involved the installation of stone veneer at the site walls

and an entry sign, granite cap, and cast stone. The town and

1 Kaestle Boos Associates, Inc., and Colantonio Inc.
Kaestle filed motions to dismiss pursuant to Mass. R. Civ. P.

12 (b) (1) and (6), 365 Mass. 754 (1974), and Colantonio filed a

motion for judgment on the pleadings pursuant to Mass. R.

Civ. P. 12 (c), 365 Mass. 754 (1974). The judge allowed all

three motions and declared that Costa "is responsible for

performing the Site Work under its subcontract."

We affirm the dismissal of Costa's claim against Kaestle

because there is no "actual controversy" between the two

companies within the meaning of G. L. c. 231A. Because the

record does not include key documents referenced in the

subcontract between Colantonio and Costa, however, we are unable

to affirm so much of the judgment as dismissed the claims

against the town and Colantonio, and we therefore remand for

further proceedings on those claims consistent with this

memorandum and order.

Background. After contracting with Kaestle, an

architectural firm, to prepare plans and specifications for the

project, the town solicited bids in January 2023. In addition

to bids for general contractor, the town solicited "filed sub-

bids" for specific classes of work, including masonry. Its

solicitation directed potential bidders to "become fully

acquainted with conditions as they exist, and thoroughly examine

the Contract Documents" and cautioned that a bidder's failure

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"to visit the site and to examine the Contract Documents shall

in no way relieve the bidder from any obligation with regard to

the bid as submitted." The deadline for filed subbids was April

13, 2023.

In the project manual and specifications, the masonry scope

was specified under Division 04, which listed the following

specifications:

04 00 01 MASONRY FILED SUB BID**
04 20 00 UNIT MASONRY** (included in FSB 04 00 01)
04 72 00 CAST STONE MASONRY** (included in FSB 04 00 01)

The masonry specifications included, in Section 1.4, a

"Description of Work," which stated that the work was shown on a

series of listed drawings. The drawings themselves are not

included in our record. Section 1.4 further stated that the

filed subcontractor "shall also examine all other Drawings and

all other Sections of the Specifications for coordination

requirements therein affecting the Work of this Section, not

just those pertaining to this Sub-trade." Between the

solicitation and bid submission deadline, Kaestle issued three

addenda to the contract documents for subbidders to rely on.

Costa was the lowest responsible and eligible subbidder for

the masonry work. It entered into a subcontract with

Colantonio, the general contractor, on May 16, 2023. The

subcontract provided that Costa

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"agrees to furnish all labor and materials required for the
completion of all work specified in Section No.(s): 04 00
01 – MASONRY FILED SUB BID, 04 20 00 - UNIT MASONRY, 04 72
00 – CAST STONE MASONRY of the Specifications for MASONRY
and the Drawings referred to therein, and ADDENDA NO. 1-3
and ALTERNATE NO. N/A, for the conclusion of: [the public
safety facility]."

The subcontract further stated that Costa

"agrees to be bound to the Contractor by the terms of the
hereinbefore described Drawings, Specifications (including
all General Conditions stated therein) and Addenda No. 1-3
and Alternative No. N/A, and to assume to the Contractor
all the obligations and responsibilities of the Contractor
by those documents assumes to the TOWN OF HINGHAM,
MASSACHUSETTS . . . ."

Colantonio agreed to pay Costa $2,417,000 for its work.

On July 27, 2023, an assistant project manager at

Colantonio sent an e-mail message to Costa to ask when it

planned to submit product data for the stone veneer at the site

walls. After an estimator at Costa wrote, "We don't own any

stone veneer per specifications," Colantonio's assistant project

manager replied, "It was part of Addenda [sic] 2. Please find

excerpt attached." That attachment is not included in our

record.

On August 16, 2023, Costa sent a letter to Colantonio

disputing ownership of the disputed work. It asserted that

"[t]he plans and specifications make it clear that this work is

not ours" and that "[t]he addenda that were released during the

bid timeframe never provided any instruction that the

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procurement and execution of this scope, which clearly falls

under Division 32, was to be included within Division 04 Filed

Sub-Bid Mason responsibilities." Kaestle responded in a letter,

stating that "[b]ased on our review of the claim, and previous

addenda responses, we find that there was adequate information

and data provided to outline the ownership of the site walls and

entry sign throughout the Bidding process as identified in the

claim to the Masonry Filed Sub-Bidder."

On September 18, 2023, Costa requested that the town issue

a change order for additional costs required to do the disputed

work. After the town declined to issue a change order, Costa

filed this action.

Discussion. We review the dismissal of a complaint under

either rule 12 (b) (1) or (6) de novo. See Pinti v. Emigrant

Mtge. Co., 472 Mass. 226, 231 (2015), citing Curtis v. Herb

Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We similarly

review the allowance of a motion for judgment on the pleadings

de novo. See Mullins v. Corcoran, 488 Mass. 275, 281 (2021).

1. Declaratory judgment claim against Kaestle. The judge

properly dismissed Costa's claim for declaratory relief against

Kaestle because no actual controversy exists between the two

companies.

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In evaluating the dismissal of a claim for declaratory

relief, we first determine whether it is "properly brought,"

meaning that the plaintiff has demonstrated that an actual

controversy exists, the plaintiff has standing to sue, and all

necessary parties have been joined. Buffalo-Water 1, LLC v.

Fidelity Real Estate Co., LLC, 481 Mass. 13, 18 (2018). See

G. L. c. 231A, §§ 1, 8. An actual controversy is

"a real dispute caused by the assertion by one party of a
legal relation, status or right in which he has a definite
interest, and the denial of such assertion by another party
also having a definite interest in the subject matter,
where the circumstances attending the dispute plainly
indicate that unless the matter is adjusted such
antagonistic claims will almost immediately and inevitably
lead to litigation."

Gay & Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass.

132, 134-135 (2002) (GLAD), quoting Bunker Hill Distrib., Inc.

v. District Attorney for the Suffolk Dist., 376 Mass. 142, 144

(1978). A complaint for declaratory relief must provide "clear

allegations of specific facts to state a case for any relief, or

to show that any real controversy exists" (citation omitted).

Penal Inst. Comm'r for Suffolk County v. Commissioner of

Correction, 382 Mass. 527, 531 (1981). A controversy in the

abstract is not enough and "conclusory allegations as to . . .

potential future conflicts will not do" (citation omitted).

Boston Herald, Inc. v. Superior Court Dep't of the Trial Court,

421 Mass. 502, 504 (1995).

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That Kaestle is, as Costa contends, "involved in literally

all of the processes at issue," fails to establish an actual

controversy with respect to the specific declaratory relief

requested by Costa. Costa seeks (1) a declaration that Costa is

not responsible for performing the disputed work, and (2) the

invalidation of the town's determination that the disputed work

is within the scope of masonry work. That relief would apply to

the town, as the awarding authority, and to Colantonio, its

general contractor and counterparty to Costa's subcontract, but

not to Kaestle. In its complaint, Costa asserts that the town,

Colantonio, and Kaestle are all "necessary parties" to the

action because "their contractual rights and obligations under

each of their respective contracts would be affected by the

declaratory relief sought." That conclusory allegation,

however, is not supported as to Kaestle. Kaestle is not a party

to the contracts between the town and Colantonio, or between

Colantonio and Costa. Costa alleges only that Kaestle

contracted with Hingham, prepared the masonry specifications at

issue, and issued a letter to Colantonio in September 2023

concluding that the site work fell within Colantonio's scope of

work. Thus, the declaration that Costa seeks would have no

impact on Kaestle's legal rights.

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Costa's suggestion that, if Kaestle's dismissal is

affirmed, it may sue Kaestle "for its negligence in the

preparation of the pre-bid documents," has no bearing on this

conclusion. The possibility of a future dispute based on the

outcome of this matter does not establish that, "unless the

matter is adjusted," the claim that Costa asserts here "will

almost immediately and inevitably lead to litigation." GLAD,

436 Mass. at 134-135, quoting Bunker Hill Distrib., Inc., 376

Mass. at 144. See Boston Herald, 421 Mass. at 504. Whether the

disputed work falls within the scope of the subcontract is

distinct from any liability that an architectural firm like

Kaestle may have for having prepared the plans and

specifications for the project. See Trustees of Tufts College

v. Volpe Constr. Co., 358 Mass. 331, 340 (1970) (not all who

"might ultimately be affected" are necessary parties where

dispute "can be resolved by a declaration of the rights and

duties" of parties under contract).

Costa's reliance on Long Island Painting Corp. v. Beacon

Constr. Co., 345 Mass. 567 (1963), is unavailing. That case was

brought by a subcontractor, and the Supreme Judicial Court

reversed the declaratory decree it obtained in the Superior

Court because the decree purported to affect the rights of the

general contractor, which had been dismissed from the case

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earlier. See Long Island Painting Corp., 345 Mass. at 570-572.

Unlike the general contractor in that case, Kaestle is not a

necessary party here because its rights would not be affected by

the declaratory relief that Costa seeks. Nor do we discern any

risk of "inconsistent judgments," as Costa asserts.

2. Declaratory judgment claims against the town and

Colantonio. Because the record does not include key documents

referenced in the subcontract between Colantonio and Costa, we

are unable to review the judge's decisions to allow (1) the

town's motion to dismiss the declaratory judgment claim against

it, and (2) Colantonio's motion for judgment on the pleadings on

the declaratory judgment claim against it.

The key issue in this case is whether Costa agreed to

perform the disputed work under its subcontract with Colantonio.

In its complaint, Costa maintained that it did not because the

disputed work "is not specified in the Masonry Specs, and, thus

is not part of Costa's scope of work."

The statutory scheme set forth in G. L. c. 149, §§ 44A-44J,

governs bidding procedures for public construction projects.

Subcontractor bidding is governed by G. L. c. 149, § 44F. As

relevant here, G. L. c. 149, § 44F, states,

"[e]very contract subject to [G. L. c. 149, § 44A] shall
include specifications . . . . Such specifications shall
have a separate section for each of the following classes
of work if in the estimate of the awarding authority such

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class of work will exceed $25,000: . . . (q) masonry work;
. . . . Each separate section in the specifications . . .
shall specify by number each sheet of plans showing work to
be done by the subcontractor under such section, . . . .
Each class of work set forth in a separate section of the
specifications pursuant to this section shall be a sub-
trade designated in the appropriate category of the general
bid form and shall be the matter of subcontract made on the
basis of the sub-bids. . . ."

G. L. c. 149, § 44F (1) (a). Thus, each class of work, such as

masonry, must be listed in a separate section of the

specifications, but the "work to be done by the subcontractor"

shall be shown in "number[ed] sheet[s] of plans" listed under

each section. Id.

Here, the materials attached to Costa's complaint show that

the specifications for the disputed work are set forth in

Division 32 of the project manual, which governs "Site

Improvements." Those specifications include a "stone monument

sign and stone veneer retaining wall" and a "granite seat wall."

The town did not solicit subbids for the site improvement scope

of work because it is not a mandatory filed sub-trade bid

section under G. L. c. 149, § 44F (1) (a).

Costa's subcontract does not refer to Division 32 or the

site improvements specifications. Nor are those specifications

directly referenced under the masonry specifications. The

defendants argue that the masonry specifications show the scope

of the masonry work on a series of drawings, and that one of

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those drawings, Drawing L-704, "unambiguously" refers to and

incorporates the specifications within Division 32. Drawing L-

704 is not in the record before us, however, and we may not go

outside the record in reviewing the judge's decision. See Melia

v. Zenhire, Inc., 462 Mass. 164, 165-166 (2012), citing Schaer

v. Brandeis Univ., 432 Mass. 474, 477 (2000) ("In reviewing a

dismissal under rule 12 (b) (6), we may consider the allegations

in the complaint, items appearing in the record, and exhibits

attached to the complaint"). Thus, we cannot determine whether,

through Drawing L-704, the masonry specifications incorporated

by reference the relevant specifications in Division 32.

Nor do the addenda to the bidding documents fill this

analytical gap. The subcontract between Costa and Colantonio

incorporated Addenda Nos. 1 through 3 by reference. However,

those addenda are not in our record either. Two of the addenda

are partially excerpted in the correspondence between the

parties that Costa attached to its complaint, and those excerpts

appear to bear on whether the specifications for the disputed

work were incorporated by reference into the masonry

specifications. Kaestle's letter to Colantonio dated September

8, 2023, quoted a portion of Addendum No. 2 in which the

following response to a request for information by a potential

bidder was provided: "Yes, Division 04 00 01 Mason, should

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carry the procurement and installation of the stone veneer, cast

stone sign and granite cap for the entry signs and stone wall as

indicated on Sheet L704." Costa's letter to Colantonio dated

August 16, 2023, quoted both that response and a portion of

Addendum No. 3 in which the response to a different request for

information stated that one entry sign on a stone wall was in

"Cast Stone" and that the scope for it and another entry sign

was "owned under specification section 32 28 00 and as depicted

on sheet L-704" (without any other reference to the masonry

specifications).

We reject the defendants' contention that judgment in the

town's and Colantonio's favor can be affirmed because (1) it is

undisputed that the subcontract incorporates the work specified

in Addendum No. 2, and (2) the cited excerpt from that addendum

states that the masonry specifications "should carry" the

disputed work "as indicated on Sheet L704." First, because

Drawing L-704 is absent from our record, we cannot surmise what

it means when other documents refer to that drawing. More

generally, it is axiomatic that, in interpreting a contract,

"[t]he objective is to construe the contract as a whole, in a

reasonable and practical way, consistent with its language,

background, and purpose. The words of a contract must be

considered in the context of the entire contract rather than in

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isolation." Krumsiek v. Collins Elec. Co., 105 Mass. App. Ct.

214, 219 (2025), quoting Rubin v. Murray, 79 Mass. App. Ct. 64,

75-76 (2011).

As the judge correctly explained in her decision, the test

for resolving disputes about the scope of work in a public

construction subcontract is "the degree of obviousness" of any

"omission, error or discrepancy in the specifications." John F.

Miller Co. v. George Fichera Constr. Corp., 7 Mass. App. Ct.

494, 498 (1979). If a discrepancy is subtle, so that a

subcontractor who examines the specifications reasonably

conscientiously "might miss a requirement which is out of

sequence or ineptly expressed," the burden of the error falls on

the issuer of the specifications. Id. On the other hand, if an

omission, error, or discrepancy in the specifications is

obvious, the subcontractor has a duty to "at least ask for

clarification if he intends 'to bridge the crevasse in his own

favor.'" Id. at 499, quoting Beacon Constr. Co. v. United

States, 314 F.2d 501, 504 (Ct. Cl. 1963). Here, without the

benefit of all the pertinent bidding materials (including but

not limited to Drawing L-704 and the full pre-bid addenda), we

cannot determine whether there was an omission, error, or

discrepancy -- obvious or otherwise -- in the masonry

specifications with respect to the disputed work. The

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incomplete record similarly precludes us from assessing whether

there are any ambiguous provisions in the bidding materials that

would allow, as Costa argues, the consideration of evidence

regarding business customs applicable to the masonry trade as an

aid in interpretation. See John F. Miller Co., supra at 499,

citing Hardware Specialties, Inc. v. Mishara Constr. Co., 2

Mass. App. Ct. 277, 279 (1974). See also Balles v. Babcock

Power Inc., 476 Mass. 565, 572 (2017) ("To determine whether the

language at issue is ambiguous, we look both to the contested

language and to the text of the contract as a whole").

By this remand, we do not suggest that this type of dispute

cannot be resolved at the pleading stage. The problem here is

with the record, not the law. Costa attached only some of the

relevant bidding materials as exhibits to its complaint: i.e.,

the masonry specifications but not Drawing L-704 referenced

therein, and letters setting forth excerpts of the addenda but

not the addenda themselves (other than the first page of the

nine-page Addendum No. 3). Under the rules of civil procedure,

those exhibits became a part of the complaint "for all

purposes." Mass. R. Civ. P. 10 (c), as amended, 456 Mass. 1401

(2010). Although Costa could have facilitated the more

efficient resolution of this case by providing a full record in

support of its complaint, it was not required to do so. See

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id., Reporter's Notes (1973) ("Rule 10 [c] does not purport to

require that any document be made part of any particular

pleading. The option remains with the pleader . . . ."). For

their part, the defendants could have attached the missing

materials to their motions but did not. See Marram v. Kobrick

Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004) ("Where, as

here, the plaintiff had notice of these documents and relied on

them in framing the complaint, the attachment of such documents

to a motion to dismiss does not convert the motion to one for

summary judgment"). See also Golchin v. Liberty Mut. Ins. Co.,

460 Mass. 222, 224 (2011); Fraelick v. PerkettPR, Inc., 83 Mass.

App. Ct. 698, 700 n.3 (2013).

Conclusion. So much of the judgment as dismissed the claim

against Kaestle is affirmed. So much of the judgment as

dismissed the claims against the town and Colantonio is vacated,

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and the matter is remanded for further proceedings consistent

with this memorandum and order.2

So ordered.

By the Court (Neyman,
Hershfang & Toone, JJ.3),

Clerk

Entered: May 15, 2026.

2 Kaestle's request for attorney's fees and double costs is
denied. Colantonio's request for attorney's fees and costs is
denied.

3 The panelists are listed in order of seniority.

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