AMP ELECTRICAL, INC. v. W.M. SCHULTZ CONSTRUCTION, INC. & Another; TOWN OF WEST SPRINGFIELD, Third-Party

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

24-P-941

AMP ELECTRICAL, INC.

vs.

W.M. SCHULTZ CONSTRUCTION, INC. & another;1
TOWN OF WEST SPRINGFIELD, third-party defendant.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, AMP Electrical, Inc. (AMP), appeals from a

summary judgment dismissing its complaint against the

defendants, W.M. Schultz Construction, Inc. (Schultz), and

Endurance Assurance Corporation (Endurance). We affirm.2

Background. We summarize the undisputed material facts on

the summary judgment record, reserving certain facts for later

1 Endurance Assurance Corporation.

2We note that Schultz brought a third-party complaint
against the town of West Springfield, which was also dismissed
on summary judgment. AMP's appeal does not raise any separate
issues regarding the dismissal of Schultz's third-party
complaint.
discussion. The town of West Springfield (town) is the owner of

a public construction project identified as Wastewater Pumping

Station Improvements (project). The town's project engineer

drafted plans and specifications for public bid by general

contractors and subbid contractors pursuant to G. L. c. 149,

§ 44F, for the project.

Schultz was awarded the general construction contract for

the project.3 Thereafter, the town's project engineer held

electrical subcontractor bid meetings, which AMP attended prior

to filing its subcontractor bid. At the meetings, the town

distributed the project's specifications and drawings to the

prospective electrical subcontractors. The town informed

prospective subcontractors of project updates by releasing

addenda to them during the prebidding process, some of which

were in response to questions raised by the prospective

subcontractors.4

As relevant here, the town issued Addendum No. 2 on March

19, 2018, which included the following question and response:

Question 15: "Who is responsible for excavation and
backfill of underground electrical conduits?"

3 Subsequently, the town and Schultz entered into a written
contract naming Schultz as the principal and Endurance as the
surety. Endurance issued Schultz a payment bond for the
project.

4 AMP does not dispute that it received Addendum Nos. 2 and
3 prior to filing its subcontract bid.

2
Response: "The electrical sub-bidder is responsible for
this work."

The town issued Addendum No. 3 on March 26, 2018, and it, among

other things, replaced Drawing Sheet E-401 with Sheet E-401.

The revised Sheet E-401 provided additional trench details

regarding the excavation and backfill of underground electrical

conduits for the project.

On March 29, 2018, AMP filed its electrical subcontractor

bid; it was the lowest subbidder. On July 18, 2018, Schultz and

AMP entered into a written contract (subcontract) whereby

Schultz agreed to pay AMP $1,800,000 for "all work specified in

Division 16 of the specifications for Electrical," "the plans

referred to therein," and Addendum Nos. 2 and 3.5

On June 26, 2019, AMP submitted a change order to Schultz

requesting an increase in price in the amount of $88,730.70.

Among other things, AMP sought the increase for "[e]xcavation

and concrete easement" and "[b]ackfilling and compacting trench

and affected areas [a]sphalt patching." In short, AMP believed

the subcontract did not include excavation and backfilling work

and thus, requested that it be compensated for that additional

work. The town's project engineer rejected AMP's request,

stating that Addendum Nos. 2 and 3 clarified that the work AMP

5 Division 16 described the basic electrical requirements
for the project.

3
now claims as extra was part of the electrical subbidder's

responsibility. Ultimately, on August 25, 2019, AMP informed

Schultz that it would proceed with the excavation and

backfilling work under protest and it provided an updated change

order (PCO #6) for the amount of $83,490.15. Schultz rejected

AMP's request for a change order and acknowledged that AMP would

proceed with the work under protest.

In May 2021, after Schultz failed to pay AMP for the work

it completed pursuant to PCO #6, AMP filed a complaint alleging

two counts against Schultz: breach of contract and unfair and

deceptive practices in violation of G. L. c. 93A, §§ 2 & 11.6

The complaint also sought recovery on a payment bond pursuant to

G. L. c. 149, § 29, from Endurance. The defendants moved for

summary judgment on all counts. AMP cross-moved for summary

judgment on the breach of contract and payment bond claims. The

judge allowed the defendants' motion for summary judgment and

denied AMP's cross motion for summary judgment. AMP timely

appealed from the summary judgment.

6 AMP's complaint alleged breach of contract for both (1)
Schultz's failure to pay for the work it completed pursuant to
PCO #6 and (2) unpaid retainage. However, between the filing of
the complaint and the judge's summary judgment decision, AMP
received payment for the retainage. Thus, this decision only
addresses the remaining breach of contract claim concerning the
work completed pursuant to PCO #6.

4
Discussion. On appeal, AMP asserts that the judge erred in

granting the defendants' motion for summary judgment. We review

the grant of summary judgment de novo. See Le Fort Enters.,

Inc. v. Lantern 18, LLC, 491 Mass. 144, 149 (2023). Where, as

here, the parties filed cross motions for summary judgment, we

view the evidence in the light most favorable to the party whose

motion was denied. See Smiley First, LLC v. Department of

Transp., 492 Mass. 103, 108 (2023). Summary judgment is

appropriate where "there is no genuine issue as to any material

fact" and "the moving party is entitled to a judgment as a

matter of law." Kourouvacilis v. General Motors Corp., 410

Mass. 706, 713 n.2 (1991). We discern no error in the judge's

grant of summary judgment in the defendants' favor.

On appeal, AMP asserts that it was only required to

complete the work designated in Division 16 of the subcontract.

AMP relies on language in G. L. c. 149, § 44F, and insists that

because the excavation and backfilling work described in

Addendum Nos. 2 and 3 was "neither a 'specification' nor a

contract term" and "was not directed to the electrical subbidder

in particular," AMP was not required to complete that work.

The judge determined that "Addendum No. 2 clarified that

the electrical subcontractor is responsible for all backfilling

and excavating." Further, the judge concluded that "[t]he

contract documents made clear that AMP was required to excavate

5
and backfill underground electrical conduits." We discern no

error in the judge's determination.

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
class of work will exceed $25,000: . . . (o) electrical
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). This language requires each class

of work to be listed in separate sections of the specifications,

but those specifications incorporate "number[ed] sheet[s] of

plans." Id. Here, Division 16, in listing the electrical

"[w]ork to be done," referenced Sheet E-401. That sheet, as

amended by Addendum 3, showed the requirements to provide a

concrete encased ductbank thirty-six inches below grade and to

backfill the resulting trench. Nothing in G. L. c. 149, § 44F

prohibits an awarding authority from clarifying a class of work

in addenda, as AMP suggests it does. Indeed, during the

prebidding process, questions arise and clarifications must be

provided, and that is what occurred here. Here, the town

provided clarification in the form of Addendum Nos. 2 and 3,

both of which AMP received before it submitted its bid, and

6
AMP's bid was in response to the specifications and supplemental

documents, including the addenda.

AMP acknowledges that it received notice of Addendum Nos. 2

and 3, yet insists that excavation and backfilling are not

customary electrical work, and thus, are the contractor's

responsibility. However, AMP did not proffer any evidence to

support this assertion on summary judgment. Contrast John F.

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

494, 499 (1979) (court permitted evidence of business custom in

construction and plumbing industry to resolve ambiguity with

respect to plumbing subcontractor's duty to install certain

toilet room accessories). Because no such evidence was

proffered here, our analysis focuses on the language of the

contract before us.7

AMP was on sufficient notice that its subcontract included

the work it now claims was extra. AMP signed the subcontract

which stated that AMP "agree[d] to furnish all labor and

materials required for the completion of all work specified in

Division 16 of the specifications for Electrical and the plans

7 At oral argument, AMP maintained that the town engineer's
suggestion that AMP could "sub out" the excavation and
backfilling work signaled that such work was not customary
electrical work. However, the affidavit from AMP's president
does not sufficiently address the custom of the electrical
industry. Without a sufficient affidavit or other evidence, we
remain unpersuaded that there was a genuine issue of material
fact barring summary judgment.

7
referred to therein and Addenda . . . No. 2 dated 3/19/18, and

No. 3 dated 3/26/18." See John F. Miller Co., 7 Mass. App. Ct.

at 499 ("Sections of a construction contract, as of any other

kind, ought to be construed to give a reasonable effect to

each"). Thus, the subcontract clearly included the excavation

and backfilling work as described in Addendum Nos. 2 and 3.

Additionally, the "E" in Sheet E-401 from Addendum No. 3 stands

for "electrical." Such a designation at the very least signaled

to AMP that it should review the update because it contained

electrical work therein.

AMP was on notice of Addendum Nos. 2 and 3's requirements

when it submitted its bid; any confusion it may have had

regarding whether the excavation and backfilling work were its

duties should have been resolved by AMP clarifying such. See

John F. Miller Co., 7 Mass. App. Ct. at 498. Even reviewing the

evidence in the light most favorable to AMP, we discern no error

in the judge's determination that the subcontract included the

excavation and backfilling work.8 Accordingly, where all of

AMP's claims turned on its allegation that the subcontract did

8 We pause to note that, as a public policy matter, parties
to a construction contract must be able to confidently rely upon
project updates communicated via addenda and other similar
forms. It would be unworkable and inefficient if the entirety
of a project's specifications were to be updated each time a
question arose.

8
not include the excavation and backfilling work, summary

judgment properly entered in favor of the defendants.9

Judgment affirmed.

By the Court (Blake, C.J.,
Sacks & D'Angelo, JJ.10),

Clerk
Entered: July 31, 2025.

9 The defendants and town seek appellate attorney's fees and
double costs, pursuant to Mass. R. A. P. 25, as appearing in 481
Mass. 1654 (2019), on the ground that AMP's appeal is frivolous.
Considering the subcontract's language and totality of the other
circumstances, we agree that AMP's appeal is frivolous and
therefore an award of fees is appropriate. Pursuant to Mass.
R. A. P. 26 (a), as appearing in 481 Mass. 1655 (2019), single
costs will be awarded to the defendants and town. Consistent
with the requirements of Fabre v. Walton, 441 Mass. 9, 10
(2004), the defendants and town may file a request for appellate
attorney's fees and single costs, with supporting documentation,
within fourteen days of the issuance of the decision in this
case. AMP shall have fourteen days thereafter within which to
respond. See id.

10 The panelists are listed in order of seniority.

9