WAYNE & COMPANY, INC. vs. CITY OF BOSTON.

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-1314
WAYNE & COMPANY, INC.
vs.
CITY OF BOSTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the city of Boston (city) refused to reissue a check
in the amount of $150,000, that the plaintiff, Wayne & Company,
Inc. (company), had misplaced in 1998, the company filed a
complaint against the city alleging breach of contract, a "book
account" claim, and unjust enrichment. The city filed a motion
to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754
(1974), which was allowed by a judge of the Superior Court
primarily on the ground that the company's claims were barred by
the applicable six-year statute of limitations. See G. L.
c. 260, § 2. This appeal followed.
Background. Because we are reviewing a dismissal pursuant
to Mass R. Civ. P. 12 (b) (6), we credit the allegations of the

2
complaint, which we summarize as follows. See Ryan v. Holie
Donut, Inc., 82 Mass. App. Ct. 633, 634 (2012). For many years,
the company was on an approved list of construction contractors
for the city. In 1998, the company agreed to perform demolition
services for the city.1 As explained in the complaint, after the
company completed the job and submitted an invoice for services
rendered, the city issued a check dated September 11, 1998, for
$150,000. The company received the check but inadvertently
misplaced it and never presented it for payment until the check
was rediscovered in 2023. The company then asked the city to
issue a new check. Despite multiple demands, the city refused
to do so. The company alleges that the city's refusal
constitutes a breach of contract. The company further alleges
that it was harmed by this breach because the check "did not
escheat to the Unclaimed Funds Department of the Commonwealth's
Treasury Office" from which, presumably, the company could have
obtained payment and avoided a lawsuit. In addition, the
company alleges that the city has been unjustly enriched and
1 The complaint does not specify the nature of the services,
but the company refers to "demolition" services in its brief.

3
that principles of equity demand that the city reissue a check
as requested.2
Discussion. "To survive a motion to dismiss [under
Mass. R. Civ. P. 12 (b) (6)], the facts alleged and the
reasonable inferences drawn therefrom must 'plausibly suggest
. . . an entitlement to relief.'" Arsenault v. Bhattacharya, 89
Mass. App. Ct. 804, 809 (2016), quoting Coghlin Elec. Contrs.,
Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 554 (2015). Our
review of the allowance of a Rule 12 (b) (6) motion is de novo.
See Ryan, 82 Mass. App. Ct. at 635. In this case, however, we
are guided by a well-reasoned memorandum of decision and order
and conclude, as did the judge, that dismissal of the company's
complaint is proper.
First, the company's breach of contract claim is barred by
the six-year statute of limitations for contract claims set
forth in G. L. c. 260, § 2. We note that there is no allegation
that the contract included a provision requiring the city to
reissue a check for any reason, let alone the company's
negligent accounting, or that the city acknowledged the debt or
unconditionally promised to pay when asked to reissue the check.
See Epstein v. Seigel, 396 Mass. 278, 279 (1985).
2 The count alleging a "book account" claim has not been
pursued on appeal and is deemed waived. See Smith v. Bell Atl.,
63 Mass. App. Ct. 702, 725 n.8 (2005).

4
Next, it matters not that the city failed to follow the
requirements of G. L. c. 200A, thereby preventing the check from
escheating to the unclaimed property division. As the city
correctly asserts in its brief, the statute does not create a
private right of action, and in the absence of any direct or
clear intent by the Legislature to do so, we will not oblige.3
See Nordberg v. Commonwealth, 96 Mass. App. Ct. 237, 239 (2019).
Third, the complaint does not properly allege a claim for
unjust enrichment. It suffices to note that there can be no
claim for unjust enrichment where, as here, there is a valid
3 We acknowledge the city's argument that the company has
waived this issue because it did not present any argument
concerning the city's alleged noncompliance in the Superior
Court, and that the language in the complaint, that "the Check
did not escheat to the [unclaimed property division], which
would have avoided the filing of the instant matter in the first
place," was insufficient to preserve the issue in the Superior
Court or on appeal. We assume without deciding that the issue
has not been waived and reject it for the reasons articulated
above.

5
contract. See Metropolitan Life Ins. Co. v. Cotter, 464 Mass.
623, 641 (2013).
Judgment affirmed.
By the Court (Vuono, Meade &
Hillman, JJ.4),
Clerk
Entered: October 13, 2026.
4 The panelists are listed in order of seniority.