B.C. Construction Co., Inc. v. Johnson Roberts Associates, Inc.

APPEALS COURT

B.C. CONSTRUCTION CO., INC. vs. JOHNSON ROBERTS ASSOCIATES, INC.

Docket:

24-P-627

Dates:

March 18, 2025 – October 3, 2025

Present:

Massing, Neyman, & Wood, JJ.

County:

Middlesex

Keywords:

Contract, Interference with contractual relations, Bidding for contract, Construction contract. Municipal Corporations, Contracts. Evidence, Motive. Libel and Slander. Privileged Communication. Practice, Civil, Summary judgment.

Civil action commenced in the Superior

Court Department on June 7, 2021.

The case was heard by Adam L. Sisitsky,

J., on a motion for summary judgment.

Kevin P. Polansky (Joseph P. Murphy also

present) for the plaintiff.

Stephen J. Orlando for the defendant.

WOOD, J.

The plaintiff, B.C. Construction Co., Inc. (B.C.), brought this action

against the defendant, Johnson Roberts Associates, Inc. (JRA), alleging

intentional interference with advantageous business relations and

defamation. A Superior Court judge

granted JRA's motion for summary judgment on both counts and entered a judgment

dismissing the complaint. B.C. appeals. We affirm.

Background.[1] In 2013, the city of Everett (Everett)

awarded B.C. a contract to renovate and construct an addition to Everett's

library building and selected JRA as the project's architect. At the end of the project, B.C. submitted

change orders to Everett, increasing the total project cost. Separately, JRA offered Everett a $20,000

credit for a dispute unrelated to the change orders.

In 2019, the town of Dracut (Dracut) hired

JRA as the architect for the construction of a new fire station and retained

the Vertex Companies, Inc. (Vertex), as its owner's project manager (OPM). Vertex and JRA worked together to evaluate

bids for the fire station project, ultimately identifying B.C. as the lowest

bidder.[2] Vertex sent an e-mail message

to the Attorney General's office (AGO),[3] explaining that it had information

regarding JRA's problematic history with B.C. in connection with the Everett

project, and that Dracut had been informed of other negative experiences with

B.C. In view of that information, Vertex

asked whether Dracut had the right to reject B.C.'s bid. The AGO advised that Dracut should

independently gather client reviews of B.C.'s prior projects and, if it found

negative reviews, then it should give B.C. the chance to respond. The AGO confirmed that after taking these

steps, Dracut would have the right "to reject a low bidder who is not

responsible." Philip O'Brien, a JRA

principal, and Vertex prepared a report for Dracut's building committee

summarizing B.C.'s municipal project references and the AGO's e-mail message

and ultimately recommending a different bidder for the project. Dracut's building committee then offered

B.C.'s president, Michael Cresta, an opportunity to meet and address the negative

project reviews. Following that meeting,

Dracut rejected B.C.'s bid.

Because of budgeting issues, Dracut had to

delay the project and conduct another round of bidding six months later. After B.C. submitted a new bid for the

project as the lowest bidder, JRA again reviewed B.C.'s references and

summarized its findings in a report.[4]

JRA reported that it had contacted some of B.C.'s references from the

first round of bidding and some new references, which generated a mix of

negative and positive reviews. JRA also

identified a reference from an architect reporting that B.C. was "suing

[the architect] and the [municipal client] for unpaid changes," and that

the municipal client was countersuing B.C. for damages. Once again, JRA did not recommend B.C. for

the project, and Dracut again rejected B.C.'s bid, this time with no offer to

discuss the negative reviews.

In late 2019, as Dracut was completing its

second round of bidding, the city of Cambridge (Cambridge) hired JRA as the

architect for the construction of a fire station. After B.C. submitted one of the lowest bids

for the project, another JRA principal, Jeffrey Davis, sent an e-mail message

to Cambridge's project manager apparently referencing JRA's experience working

with B.C. on the Everett project.

Davis's message stated that, "[JRA] worked with [B.C.] in 2013/2014

-- if they weren't the worst, they were among the [two] worst [general

contractors] that we have ever worked with.

As such, we really need to talk to current references to understand if

they still suck." Davis worked with

a JRA associate, Michael Bellefeuille, to prepare a report summarizing JRA's

bid review (Cambridge report), which included client reviews of B.C.'s prior

work. Davis also incorporated

information obtained through reference checks and from JRA's previous reports

on the Dracut project. The Cambridge

report stated that it appeared "that many of [B.C.'s] recently completed

projects may have required formal dispute resolution (including mediation and

litigation) in order to complete the project." Cambridge rejected B.C.'s bid.

Not all municipalities, however, reached

the same conclusion with respect to B.C.

Around the same time as the Dracut and Cambridge projects, the town of

Newbury (Newbury) sought bids to build a new police station. B.C. was the lowest bidder. Although JRA was not the architect for the

Newbury project, Newbury's permanent building committee obtained a copy of one

of JRA's reports from the Dracut project, which contained unfavorable information

about B.C. Vertex, which was the OPM on

the project, nonetheless found that B.C. was a responsible bidder, and Newbury

awarded the job to B.C.

Discussion. "The allowance of a motion for summary

judgment is appropriate where there are no genuine issues of material fact in

dispute and the moving party is entitled to judgment as a matter of law"

(quotation and citation omitted).

Williams v. Board of Appeals of Norwell, 490 Mass. 684 , 689 (2022). When a party moves for summary judgment on

claims that the opposing party will have the burden of proving at trial, the

moving party must demonstrate "that the party opposing the motion has no

reasonable expectation of proving an essential element of that party's

case." Kourouvacilis v. General Motors

Corp., 410 Mass. 706, 716 (1991). We

review a grant of summary judgment de novo.

See Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018).

a.

Intentional interference with advantageous business relations. To prevail on a claim of intentional

interference with advantageous business relations, B.C. must prove that

(1) it had an advantageous business relationship with a third party,

(2) JRA knowingly induced the third party to forgo the business relations,

(3) JRA's interference was improper in motive or means, and (4) B.C.

was harmed by the interference. See

Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49 , 54 (2020), citing Psy-Ed

Corp. v. Klein, 459 Mass. 697, 715-716 (2011).

The central question in this appeal is whether there is a genuine

dispute of fact as to whether JRA's actions were motivated by an improper

motive or means that harmed B.C.

This turns on the application of Cutting

Edge Homes, Inc. v. Mayer, 103 Mass. App. Ct. 749 (2024) (Cutting Edge). We focus first on improper motive. "To show an improper motive, what is

required is a showing of an intent specifically to harm the plaintiff,

unrelated to any legitimate business purpose" (emphasis omitted). Id. at 755 .

See Cavicchi v. Koski, 67 Mass. App. Ct. 654, 658 (2006) (improper

motive "may include ulterior motive [e.g., wishing to do injury]" as

well as "evidence of retaliation or ill will toward the plaintiff"

[citation omitted]). B.C. argues that

its prior strained relationship with JRA -- evidenced by JRA's comments that it

did not want to work with B.C. following its experience with B.C. on the

Everett project and the fact that B.C.'s bids were rejected on projects where

JRA was the architect but accepted on projects where JRA was not -- creates a

reasonable expectation that B.C. can prove improper motive through ill will. We disagree.[5]

As we explained in Cutting Edge, the

critical inquiry is whether there was any evidence that the alleged

tortfeasor's motive or means were "improper," as defined by the

Restatement (Second) of Torts (1979) (Restatement). Cutting Edge, 103 Mass. App. Ct. at 753. Articulating what is known as the

"honest advice" rule, section 772 of the Restatement states that

"One who

intentionally causes a third person not to perform a contract or not to enter

into a prospective contractual relation with another does not interfere

improperly with the other's contractual relation, by giving the third person

"(a)

truthful information, or

"(b) honest

advice within the scope of a request for the advice."

In its comments,

the Restatement reiterates that it is not improper to "merely give[]

truthful information to another."

Restatement (Second) of Torts § 772 comment b. Further, the comments explain that the honest

advice rule applies where (1) the advice was requested, (2) the

advice given was within the scope of the request, and (3) the advice was

honest. Id. at § 772 comment

c. Advice is deemed "honest"

so long as the advisor exercised good faith.

See id. at § 772 comment e.

The summary judgment record before us

established that in each project bid, JRA's municipal client asked it to

provide advice about B.C. The record

also established that, in each instance, JRA provided advice within the scope

of the request; that is, advice relevant to whether B.C. was a

"[r]esponsible" bidder. G. L.

c. 149, § 44A (1). Finally, B.C. has no

reasonable expectation of proving that JRA's advice was not honest because it

failed to demonstrate that there was a genuine issue of fact regarding JRA's

exercise of good faith. JRA gathered and

summarized multiple reviews -- both positive and negative -- by B.C.'s prior

municipal clients and then relied on that summary as the basis of its opinion

that B.C. was not a responsible bidder.[6]

We agree with the judge that nothing in

the record supports B.C.'s contention that JRA implied in bad faith that

municipalities had difficulty getting B.C. to finish the construction phase of

projects. That JRA's negative statements

may have been imprecise does not suggest an improper motive. For example, B.C. argues that JRA's statement

in the Cambridge report that "many of [B.C.'s] recently completed projects

may have required formal dispute resolution (including mediation and

litigation) in order to complete the project," along with JRA's assertion

to Cambridge's project manager about its negative impression of B.C., creates a

genuine factual dispute about whether JRA acted with improper motive. However, the record does not support an

inference that JRA's statements about B.C. were made in bad faith. B.C. argues only that the fee disputes

underlying JRA's statements invariably occurred after B.C. had completed the

construction phase of the projects, and that JRA's failure to identify any

projects that B.C. required litigation to complete establishes that JRA knew

its statements were false.

In fact, JRA clearly explained the basis

for its statement that many of B.C.'s recent projects "may have required

formal dispute resolution" to complete in the Cambridge report. Prior to writing that report, JRA spoke with

participants from seven municipal projects that B.C. commenced between 2015 and

2018. JRA reported that, "Based on

news reports and anecdotal respondent comments, we understand that several

projects resulted in dispute resolution, including litigation and mediation,

between [B.C.] and [o]wners and/or [d]esigners." JRA reported further that, "Numerous

respondents noted that [B.C.] sometimes performed unauthorized work outside of

the contract requirements."

Finally, JRA stated that, "Several respondents noted excessive and

unfounded claims for change orders by [B.C.].

Several respondents noted that [B.C.] sought additional compensation for

work that was included in the [c]ontract [d]ocuments." In short, this was relevant information

within the scope of JRA's duty to provide honest advice. Because JRA's statement that some projects

"may have required formal dispute resolution" to complete was founded

on factual information that it gathered from references and news reports, the record

does not support B.C.'s contention that JRA deliberately made a false claim

about litigation being necessary to complete its projects.[7]

We also agree with the judge that, even if

JRA's recommendation was influenced by a prior negative experience with B.C.,

which caused bias and greater reliance on negative reviews, that fact would

have been, at most, evidence of negligence, which is insufficient to raise a

genuine dispute as to improper motive or means.

See Cutting Edge, 103 Mass. App. Ct. at 754 (in order to establish

"improper" conduct for purposes of tortious interference claim,

"[i]t is not sufficient to show that the advisor was negligent, or made

negligent or even grossly negligent misrepresentations"). See also Restatement (Second) of Torts

§ 772 comment c ("If the[] conditions [for honest advice] are

present, it is immaterial that the [advisor] . . . dislikes the third

person and takes pleasure in the harm caused to him by the advice"). In fact, where the record demonstrates that

JRA was providing advice for a legitimate business purpose -- selecting a

responsible bidder for a municipal construction project -- JRA's negative

impression of B.C., based on its prior experience working with B.C. on a

municipal construction project, was highly relevant. Cutting Edge, supra at 755 (improper motive

requires "an intent specifically to harm the plaintiff, unrelated to any

legitimate business purpose").

Accordingly, JRA's prior negative experience with B.C. does not create a

genuine issue of material fact as to whether JRA failed to provide "honest

advice within the scope of a request for the advice." See Restatement (Second) of Torts § 772.[8] Accordingly, JRA was entitled to summary

judgment as to the claim of intentional interference with advantageous business

relations.

b.

Defamation. "To prevail on a

claim for defamation, a plaintiff must establish that (1) the defendant

published a defamatory statement of and concerning the plaintiff; (2) the

statement was a false statement of fact (as opposed to opinion); (3) the

defendant was at fault for making the statement, and any privilege that may

have attached to the statement was abused; and (4) the plaintiff suffered

damages as a result, or the statement was of the type that is actionable

without proof of economic loss."

Lawless v. Estrella, 99 Mass. App. Ct. 16 , 18-19 (2020).

B.C. again focuses on this statement from

the Cambridge report: "It appears

that many of [B.C.'s] recently completed projects may have required formal

dispute resolution (including mediation and litigation) in order to complete

the project." JRA argues that

B.C.'s defamation claim fails for several reasons, including that the

common-interest privilege protects JRA from liability. We agree.

"Massachusetts courts have recognized

that a person may possess a conditional privilege to publish defamatory

material if the publication is reasonably necessary to the protection or

furtherance of a legitimate business interest" (citation omitted). Kilnapp Enters., Inc. v. Massachusetts State

Auto. Dealers Ass'n, 89 Mass. App. Ct. 212, 218 (2016). "[A] publication will be deemed

conditionally privileged if the publisher of the statement and the recipient

have a common interest in the subject and the statement is reasonably

calculated to further or protect that interest" (quotation and citation

omitted). Downey v. Chutehall Constr.

Co., 86 Mass. App. Ct. 660, 666 (2014).

The privilege does not apply if there is evidence that the publisher

either "(1) acted out of malice, (2) knew the information was

false, (3) had no reason to believe the information to be true,

(4) acted in reckless disregard of the truth or the defendant's rights, or

(5) published the information unnecessarily, unreasonably, or

excessively." Id. at 667 . "Negligence is not enough to cause the

loss of the privilege." Id. To establish recklessness, "[t]here must

be sufficient evidence to permit the conclusion that the defendant in fact

entertained serious doubts as to the truth of his publication" (citation

omitted). Id. "Where, as here, a defendant in a

defamation action establishes the existence of a privilege, the burden rests

upon the plaintiff to raise a trial-worthy issue of an abuse of that

privilege." Id. at 665 .

We agree with the judge that "[t]he

record contains no evidence from which the court may infer that JRA

'entertained serious doubts as to the truth of' the statement at

issue." See Downey, 86 Mass. App.

Ct. at 667 ("Recklessness is a difficult standard to meet"). Indeed, as discussed supra, JRA reported that

its statement that B.C.'s "recently completed projects may have required

formal dispute resolution" was based on reference checks with B.C.'s prior

municipal clients. This information

supports the judge's conclusion that there is no genuine dispute that JRA made

the allegedly defamatory statement in good faith, fulfilling its professional

obligation to its municipal client and furthering their common interest in

selecting a responsible bidder. B.C.

produced no evidence demonstrating that JRA should have doubted the honesty and

accuracy of those references, which were provided by B.C. itself as part of the

bidding process. There can be no doubt

that a municipality selecting a contractor for a construction project would

have an interest in knowing the contractor's recent history of seeking payment

for similar projects through dispute resolution, including litigation and

mediation. See Lawless, 99 Mass. App.

Ct. at 23-24 (statements made by defendant in response to request to assess

plaintiff's job performance as town treasurer fell within conditional

privilege). Because JRA's statement was

privileged, the judge properly allowed JRA's motion for summary judgment on

B.C.'s defamation claim.

Judgment

affirmed.

footnotes

[1] "We

summarize the evidence in the summary judgment record in the light most

favorable to [B.C.], the nonmoving party."

Adams v. Schneider Elec. USA, 492 Mass. 271 , 274 (2023).

[2] Under

G. L. c. 149, § 44A (2) (C), certain construction

projects by public agencies "shall be awarded to the lowest responsible

and eligible general bidder on the basis of competitive bids." Under G. L. c. 149,

§ 44A (1), being a "[r]esponsible" bidder means

"possessing the skill, ability and integrity necessary to faithfully

perform the work called for by a particular contract, based upon a

determination of competent workmanship and financial soundness in accordance

with the provisions of [G. L. c. 149, § 44D]."

[3] The Attorney

General's fair labor division provides guidance to municipalities and other

interested parties on compliance with public bidding laws. See Office of the Attorney General, Public

Bidding, https://www.mass.gov/public-bidding [https://perma.cc/YCC7-A79V].

[4] There is no

indication in the record that Vertex continued to serve as the OPM for this

second round of bids.

[5]

"Improper means include violation of a statute or common-law precept,

e.g., by means of threats, misrepresentation, or defamation." Cavicchi, 67 Mass. App. Ct. at 658 . B.C. does not allege JRA violated a

statute. We address its claim of

defamation, and the related allegation that JRA misrepresented B.C.'s business

practices, below.

[6] To the extent

that B.C.'s bids were accepted on municipal projects where JRA was not the

architect, that is irrelevant to whether JRA provided honest advice on projects

where it was the architect.

[7] There is no

record support for B.C.'s claim that JRA treated it "more severely than

other contractors" by "withholding clear positive references, and

outright misrepresenting others."

[8] In the

context of taxpayer-funded public construction projects, such as this one, a

narrow reading of the honest advice rule would be contrary to the public interest,

as it could discourage architects and OPMs, hired by municipalities to evaluate

the responsibility of bidders, from sharing critical reports that may

articulate a justifiable reason to reject a bid or bidder.