RIVERVIEW CONSTRUCTORS, LLC v. RCS LEARNING CENTER, INC., & Others (And a Consolidated Case).

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

23-P-1386

RIVERVIEW CONSTRUCTORS, LLC

vs.

RCS LEARNING CENTER, INC., & others1 (and a consolidated case2).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This construction dispute originated in a failed real

estate deal by which defendants RCS Learning Center, Inc. and

RCS, Behavioral and Educational Consulting LLC (collectively,

RCS) planned to purchase adjacent parcels of land in Framingham

(the property) from defendants Northside LLC and Ann B. Pratt,

1RCS, Behavioral and Educational Consulting LLC; Northside
LLC; and Ann B. Pratt, trustee of the Nobscot Realty Trust; and
trustee defendants Brookline Bank, Commerce Bank & Trust Co.,
Middlesex Savings Bank, and Santander Bank, N.A. The trustee
defendants did not file a brief in this appeal.

2Maine Drilling & Blasting, Inc. vs. Riverview
Constructors, LLC; RCS Learning Center, Inc.; RCS, Behavioral
and Educational Consulting LLC; Northside LLC; and Ann B. Pratt,
trustee of the Nobscot Realty Trust.
trustee of the Nobscot Realty Trust (collectively, Nobscot).

Before RCS and Nobscot consummated that transaction, RCS

contracted, with Nobscot's written consent, for plaintiff

Riverview Constructors, LLC (Riverview), to build a school on

the property. After Riverview and a subcontractor, Maine

Drilling & Blasting, Inc. (Maine Drilling), performed work, the

defendants' real estate deal fell apart, leading to this and

other litigation.3 Riverview filed suit in Superior Court

against RCS for breach of contract and related claims, and

against Nobscot to enforce its mechanic's lien on the property.4

Maine Drilling filed suit against Riverview, RCS, and Nobscot to

enforce its mechanic's lien on the property.5

The cases were consolidated for a jury trial.6 The jury

returned a special verdict finding RCS in breach of a written

3 See Ria K. McNamara, Inc. v. Pratt, 104 Mass. App. Ct.
1118 (2024); RCS Learning Ctr., Inc. v. Pratt, 103 Mass. App.
Ct. 1118 (2024).

4 Riverview also sought trustee process against four banks
holding RCS assets. Three of those banks deposited funds into
court, but the banks did not otherwise participate in the
litigation.

5 Maine Drilling also brought contract and related claims
against Riverview, and claims against Riverview and RCS for
violations of G. L. c. 93A and the prompt payment law, G. L.
c. 149, § 29E. Those claims settled before trial.

6 Riverview's claims against RCS for violation of G. L.
c. 93A and for fraudulent transfer of funds were bifurcated
before trial. Ultimately the judge found for RCS on those
claims. The issues raised by those findings are not before us.

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contract for $1.6 million and the corresponding covenant of good

faith and fair dealing, causing Riverview damages of $530,190;

and in breach of an implied contract for work pursuant to a

change order, for which Riverview was entitled to recover

$149,000 in quantum meruit. Judgment entered for Riverview.

RCS filed motions for a new trial and for judgment

notwithstanding the verdict, arguing that Riverview did not

prove the existence of a contract for $1.6 million or RCS's

breach of that contract, Riverview failed to plead and prove

damages, and the judge erred in instructing the jury on damages.

Nobscot moved for discharge of the mechanic's liens of Riverview

and Maine Drilling, arguing that neither had a written contract

with Nobscot, and alternatively that any contract between

Riverview and Nobscot was limited to a contract price of

$84,500. The judge denied the postjudgment motions. RCS and

Nobscot appeal, making those same contentions. We affirm.

Discussion. 1. Sufficiency of evidence of contract. RCS

and Nobscot challenge the sufficiency of the evidence underlying

Riverview's contract claims.

a. Scope of contract. RCS and Nobscot argue that any

contract between RCS and Riverview permitted Riverview to

perform only $84,500 worth of work and not the entire $1.6

million contract price.

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In June 2016, Riverview sent RCS a site work proposal

listing thirty-three categories of work it would perform to

build the school on the property. The proposal specified that

Riverview's "Total Base Bid" was in the amount of $1.6 million.

RCS's project manager Peter Cullinan drafted a "letter of

intent to contract " (letter of intent) that incorporated by

reference Riverview's proposal. Cullinan did not draft a formal

contract because RCS did not have financing in place and, as the

letter of intent stated, "final value engineering and

construction details remain to be resolved." On August 17,

2016, principals for RCS, Nobscot, and Riverview signed the

letter of intent. The letter of intent stated that, "with the

consent of [Nobscot]," RCS was authorizing Riverview to start

building the school by performing the first six items listed on

Riverview's proposal, not to exceed a cost of $84,500. The

letter of intent stated, "Work is to be initiated as soon as

possible, and if the project is placed on hold for reasons not

in [Riverview]'s control, [it] shall be compensated for the

costs [it] has incurred to the point of stoppage."

Riverview began work in August 2016, and submitted monthly

applications for payment to RCS. Each of Riverview's payment

applications stated that the "ORIGINAL CONTRACT SUM" was $1.6

million. For several months, RCS paid Riverview promptly. By

the end of October, the total amount that Riverview had billed

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and RCS had paid was more than twice the $84,500 amount set

forth in the letter of intent. Cullinan testified that the work

continued beyond the scope of the first six items listed on the

letter of intent because "RCS wanted to continue to proceed."

RCS's president, Denise Rizzo-Ranieri, testified that RCS paid

Riverview because RCS had agreed to the payments and wanted to

"make good" on the work Riverview had done, with which she was

content.

The scope of the parties' agreement was a question of fact

for the jury. See Situation Mgt. Sys., Inc. v. Malouf, Inc.,

430 Mass. 875, 879 (2000). The letter of intent signed by

principals for RCS, Nobscot, and Riverview sufficed to establish

a meeting of the minds on the material terms of the contract.

The letter of intent stated that Riverview was authorized "to

initiate the development of the Project," a term defined earlier

in the letter to mean the building of the entire school. See

Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 215

(2018) (mutual assent occurs where there is offer by one party

and acceptance by other "in the terms in which [the offer] is

made" [citation omitted]). The jury was not required to believe

that RCS and Nobscot only agreed to six items of work at a cost

of $84,500, especially because RCS paid Riverview far more than

that amount, on invoices referencing $1.6 million as the

"ORIGINAL CONTRACT SUM." The jury could find that, by their

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course of conduct, the parties excused the failure to execute a

formal contract as contemplated by the letter of intent. See

Situation Mgt. Sys., Inc., supra at 878-879; Prism Group, Inc.

v. Slingshot Tech. Corp., 104 Mass. App. Ct. 785, 796 n.7

(2024).

b. Maine Drilling's blasting work. Riverview's proposal,

which was incorporated by reference into the letter of intent,

listed an alternate task, "Drill Blast & Remove Ledge Boulders,"

for the amount of $343,062 that was included within the $1.6

million contract price. [In late September 2016, RCS authorized

that blasting work. Riverview subcontracted the blasting to

Maine Drilling, which performed that work between December 2016

and early March 2017. The parties stipulated that Riverview and

Maine Drilling's subcontract was worth $285,973.14, of which

Riverview had paid $28,000, leaving a balance of $257,973.14.

RCS's president testified that RCS "agreed to do the

blasting" and that she knew that Maine Drilling was performing

that work. The letter of intent signed by principals for both

RCS and Nobscot incorporated by reference Riverview's proposal

describing the drilling and blasting work. Nobscot never

questioned why blasting work was being done on its property.

Based on the evidence, the jury could have found that RCS

authorized Riverview to subcontract Maine Drilling's work. To

prove that Nobscot consented to Maine Drilling's work,

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"something more than awareness of an intent to perform work, or

awareness of ongoing work, and a failure to object" was

required. Trace Constr., Inc. v. Dana Barros Sports Complex,

LLC, 459 Mass. 346, 355 (2011). As discussed above, the jury

could interpret the letter of intent to mean that RCS and

Nobscot agreed to Riverview's entire proposal, and not just the

first six items.

c. Change order. RCS argues that there was insufficient

evidence to support the jury verdict for an implied contract for

$149,000 arising from a change order. RCS contends that it did

not approve the change order, and alternatively that Riverview

waived its right to payment.

Riverview's principal, Bruce Ross (Ross), testified that in

January 2017, RCS informed Riverview of changes to the plans

necessitated by issues including zoning requirements. Riverview

performed that additional work and submitted a change order in

the amount of $149,070, but RCS did not pay it. Based on that

evidence, the jury had ample basis to conclude that RCS did in

fact approve that work and then breached the implied contract.

As for RCS's claim that Riverview waived its right to

payment under the change order by accepting late payments on its

invoices for November and December 2016 and by delaying in

submitting an invoice for the change order, it is unavailing.

Ross testified that, after he learned that RCS was having

7
problems obtaining financing, he did not demand prompt payment

from RCS but he still expected RCS to pay Riverview. "Mere

acceptance of a partial payment of monies owed under a contract

does not waive the entitlement to the full amount due." Prism

Group, Inc., 104 Mass. App. Ct. at 791.

2. Damages. a. Pleading requirement. RCS argues that

lost profits are special damages that Riverview was required to

allege in its complaint, and RCS was unfairly surprised when it

learned from the joint pretrial memorandum filed shortly before

trial that Riverview was seeking its lost profits. We are not

persuaded.

In its complaint, Riverview alleged that, but for RCS's

breach, Riverview would have received $1.6 million plus $149,070

for the change order. As discussed below, Ross explained at

trial that Riverview's profit was subsumed in the $1.6 million

contract price. As required by the mechanic's lien statute,

G. L. c. 254, § 5, the complaint alleged that the outstanding

balance due on the contract was $552,195.7 Contrary to RCS's

argument, the allegation of the outstanding balance was not an

impermissible "ad damnum" because it was "ascertainable by

calculation" and supported by the sworn statement of Riverview's

7 The complaint alleged that $991,750 was the value of the
work that Riverview had performed on the contract and the change
order, minus the $439,375 RCS had paid, equaling $552,195.

8
manager. G. L. c. 231, § 13B. Contrast Friedman v. Globe

Newspaper Co., 38 Mass. App. Ct. 923, 924 (1995) (within judge's

discretion to dismiss libel complaint alleging damages which

were neither liquidated nor ascertainable by calculation).

b. Ross's testimony about Riverview's anticipated profit.

RCS moved in limine to preclude Riverview from presenting

evidence of its "lost profits," arguing that those were

"special" damages that Riverview was required to specifically

plead pursuant to Mass. R. Civ. P. 9 (g), 365 Mass. 751 (1974).

The judge denied the motion. RCS contends that the judge erred

in permitting Ross to testify about Riverview's anticipated

profits, those damages were speculative, and Riverview was

required to present expert testimony to support them.

Ross, who had worked in the construction industry for

forty-eight years, testified that the $1.6 million contract

amount included fifteen percent for Riverview's profit, i.e.,

$240,000, because profit was Ross's purpose in running a

business and that was what he anticipated making on the project.

"The basic principle of contract damages is that the

aggrieved party should be put in as good a position as if the

other party had fully performed." Laurin v. DeCarolis Const.

Co., 372 Mass. 688, 691 (1977). As to breach of a construction

contract, damages "may include . . . anticipated profits."

Lawrence v. Falzarano, 380 Mass. 18, 28 (1980). See Situation

9
Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 880 (2000)

("award of 'expectancy' damages may include lost profits"). See

generally Restatement (2nd) Contracts § 346 (2024). Ross's

testimony about Riverview's anticipated profit was not

speculative and did not require testimony of a witness with any

expertise beyond his. Contrast LightLab Imaging, Inc. v. Axsun

Technologies, Inc., 469 Mass. 181, 191 (2014) (plaintiff's

expert's opinion on lost profits damages was based on "dubious

assumption about brand loyalty" and thus speculative).

Riverview's anticipated profits were not "special" damages

within the meaning of Rule 9 (g), because they "necessarily

ar[o]se from the act complained of" (citation omitted).

Reporter's Notes to Rule 9 (g), Mass. Rules of Court, Rules of

Civil Procedure, at 22-23 (Thomson Reuters 2024). RCS misplaces

its reliance on Anthony's Pier Four, Inc. v. HBC Assocs., 411

Mass. 451, 479 (1991), which referred to lost profits as

"special damages" in the context of describing that appellant's

argument that "in this case lost profits are too speculative and

too remote a measure of damages."

c. Jury instruction on damages. RCS contends that the

judge erred in instructing the jury on damages. RCS requested a

jury instruction that Riverview was not entitled to recover

expectancy damages or lost profits. The judge denied the

request.

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The judge instructed the jury to determine Riverview's lost

profits as follows:

"First, you determine the parties' agreed contract price.
Next, you determine how much, if any, payment RCS Learning
Center made. Third, you determine what labor or material
costs or other expenses Riverview Constructors LLC would
have had to pay in order to complete its obligation under
the contract. Finally, you calculate the amount of lost
profit. To do this, you take the agreed contract price and
then subtract the amount RCS Learning Center paid and any
labor or material costs or other expenses that Riverview
Constructors LLC would have had to pay in order to complete
its end of the contract. The result is Riverview
Constructors LLC's lost profit."

That language tracked that of the Superior Court's model jury

instruction on lost profits in contract cases. See Superior

Court Model Jury Instructions on Contract Damages and Other

Special Contract Issues, 10-11 (Aug. 2021).

The instruction on lost profits conveyed "the proper legal

standard." Luppold v. Hanlon, 495 Mass. 148, 159 n.11 (2025)

("Instructions that convey the proper legal standard,

particularly when tracking model jury instructions, are deemed

correct" [citation omitted]). As the judge explained, contract

damages are determined by calculating the damage to the

plaintiff from the defendant's breach. See 477 Harrison Ave.,

LLC v. JACE Boston, LLC, 483 Mass. 514, 523 (2019).

c. Amount of damages. RCS argues that the judge erred in

denying its motion for a new trial on the grounds that the jury

award of $530,190 in damages to Riverview was excessive. "[T]he

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allowance of a motion for a new trial based upon an inadequate

or excessive award of damages, and the direction of an addition

or remittitur, rests in the sound discretion of the judge."

Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 (2009),

quoting Blake v. Commissioner of Correction, 403 Mass. 764, 771

(1989). We apply a "highly deferential" standard in assessing

the evidence supporting a jury's award of damages and will

overturn such an award only if it is "clearly excessive in

relation to what the plaintiff's evidence ha[d] demonstrated

damages to be." Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10

(2020), quoting Ayash v. Dana-Farber Cancer Inst., 443 Mass.

367, 404, cert. denied sub nom. Globe Newspaper Co. v. Ayash,

546 U.S. 927 (2005).

We conclude that the judge acted within her sound

discretion in denying the motion for a new trial. We note that

the jury award was less than the $552,195 alleged in Riverview's

complaint as the balance due on the contract. The jury had

before it ample evidence to support the award, including

Riverview's invoices.

3. Mechanic's liens. Nobscot contends that the judge

erred in denying its motions for discharge of Riverview's and

Maine Drilling's mechanic's liens.

A mechanic's lien is a "creature of statute, which compels

strict compliance in order to obtain relief" (quotation and

12
citation omitted). Bruno v. Alliance Rental Group, LLC, 103

Mass. App. Ct. 170, 174-175 (2023). To obtain relief,

Riverview, as contractor, was required to record in the registry

of deeds notice that it had a written construction contract with

either the property owner, i.e., Nobscot, "or with any person

acting . . . with the consent of such owner," i.e., RCS. G. L.

c. 254, § 2. See Trace Constr., Inc., 459 Mass. at 352 ("a

contractor can establish a valid lien on a property interest

when he or she contracts with a person acting with the consent

of the owner of that property interest"). In May 2017,

Riverview recorded its notice of contract. Riverview's notice

of contract stated that its mechanic's lien was "by virtue of a

written contract dated August 17, 2016," i.e., the letter of

intent signed by RCS, Nobscot, and Riverview.

Nobscot argues that there was insufficient evidence that

Riverview had a contract with Nobscot. In denying the motion

for discharge of Riverview's mechanic's lien, the judge

concluded that "Nobscot participated in the creation and

execution of the written letter of intent, which, when

considered along with the series of other writings including the

June 2016 proposal, invoices, and checks, formed the basis upon

which the jury found that a valid and binding contract existed

between the parties in the present actions." See Brewster

Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.

13
App. Ct. 582, 600 (2007) (multiple writings read together

constituted contract satisfying Statute of Frauds).

As to Maine Drilling's subcontractor mechanic's lien, Maine

Drilling was required to record in the registry of deeds notice

that it furnished labor, equipment, and construction services

"under a written contract with a contractor," i.e., Riverview;

upon giving actual notice of that filing to the property owner,

Maine Drilling "shall have a lien upon" the property "owned by

the party who entered into the original contract." G. L.

c. 254, § 4. In May 2017, Maine Drilling recorded its notice of

contract, of which it sent copies to RCS and Nobscot.

Nobscot argues that because Maine Drilling's subcontractor

mechanic's lien was derived from Riverview's contract with RCS,

that lien was extinguished when the real estate deal between RCS

and Nobscot fell apart. The argument is unavailing, because, as

the jury found, Nobscot was also a party to the contract

documented in the letter of intent. Contrast Trace Constr.,

Inc., 459 Mass. at 356-357 (where property owner was not party

to contract between tenant and contractor, G. L. c. 254, § 4 did

not permit mechanic's lien for subcontractor). In those

circumstances, as the judge put it, "Maine Drilling is only

required to have a written contract with Riverview in order to

maintain its mechanic's lien on the property, which it does."

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See Business Interiors Floor Covering Business Trust v. Graycor

Constr. Co., 494 Mass. 216, 224-225 (2024).

We discern no error or abuse of discretion in the judge's

denial of Nobscot's motion for discharge of the mechanic's liens

of Riverview and Maine Drilling.

Judgment affirmed.

Orders dated September 19,
2023, denying motions for
judgment notwithstanding
the verdict, for a new
trial, and for discharge of
mechanic's liens, affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.8),

Clerk

Entered: March 18, 2025.

8 The panelists are listed in order of seniority.

15