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SJC-13507

BUSINESS INTERIORS FLOOR COVERING BUSINESS TRUST vs. GRAYCOR 

CONSTRUCTION COMPANY INC. & others.1

Suffolk. February 7, 2024. - June 17, 2024.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, 

& Dewar, JJ.

Contract, Construction contract, Subcontract, Performance and 

breach, Impossibility of performance. Practice, Civil, 

Affirmative defense, Judgment, Summary judgment. Payment. 

Time. Judgment.

Civil action commenced in the Superior Court Department on 

September 15, 2020.

The case was heard by Diane C. Freniere, J., on a motion 

for summary judgment, and entry of separate and final judgment 

was ordered by her.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Matthew B. Lysiak (Mark B. Lavoie also present) for Graycor 

Construction Company Inc.

Andrew R. Dennington (Ryan O. Forgione also present) for 

the plaintiff.

1 Pacific Theatres Exhibition Corp.; Podium Developer LLC; 

and Podium Owner, LP.
2

Joseph A. Barra, for Associated Subcontractors of 

Massachusetts, Inc., amicus curiae, submitted a brief.

Joel Lewin, Christopher W. Morog, Robert T. Ferguson, Jr., 

Garrison Doodlesack, & Isha Kumar, for Construction Industries 

of Massachusetts, Inc., amicus curiae, submitted a brief.

KAFKER, J. The prompt pay act, G. L. c. 149, § 29E (prompt 

pay act or act), which we interpret for the first time in this 

case, requires that parties to a construction contract approve 

or reject payment within strict time limits and provides 

procedures for doing so. If the payor does not approve or 

reject a payment application within the act's set time limit, 

the application is "deemed to be approved." G. L. c. 149, 

§ 29E (c).

Graycor Construction Company Inc. (Graycor), a general 

contractor for a movie theater project in Boston's North End

section, entered into a subcontract with Business Interiors 

Floor Covering Business Trust (Business Interiors). Graycor

failed to approve or reject three separate applications for

periodic payments made by Business Interiors for the flooring 

work it performed on the project. Business Interiors sued 

Graycor in the Superior Court for breach of contract and other 

claims. The Superior Court granted Business Interiors's motion 

for summary judgment on its breach of contract claim and entered 

separate and final judgment. Graycor appealed.
3

On appeal, Graycor asserts that there is a question of 

material fact as to whether the original contract is a "contract 

for construction" within the meaning of the act, because the 

prompt pay act references liens pursuant to G. L. c. 254, §§ 2 

and 4, in its definition of a contract for construction, and no 

such lien could have been imposed at the time of the lawsuit. 

Additionally, Graycor argues it has a valid impossibility 

defense to its failure to pay. Business Interiors argues 

Graycor waived any such claims and, regardless, Graycor's 

arguments are without merit.

We hold that the prompt pay act cross-references liens that 

"may be established under sections 2 or 4 of chapter 254" for a 

limited purpose: to define in broad terms the types of 

contracts subject to the act. G. L. c. 149, § 29E (a). The 

strict compliance requirements for enforcement of particular 

liens do not apply, as Graycor contends. Additionally, we hold 

that under the act, a party does not waive its defenses by 

failing to approve or reject an invoice within the strict time 

requirements established by the act. However, a party that 

neither approves nor rejects a payment application within the 

requisite time must first make the payment in order to pursue 

any defenses in a subsequent proceeding related to the invoices, 

as the invoices have been deemed "approved." The invoice 

payments must be made prior to, or contemporaneous with, the 
4

raising of the defenses, or the defenses cannot be raised. As 

Graycor sought to exercise its defenses in this litigation

without ever paying the invoices, it may not pursue the 

defenses. Summary judgment was therefore properly allowed on 

the breach of contract claim. 

This case also raises an important procedural question 

regarding the proper application of separate and final judgment 

pursuant to the prompt pay act. The fact that a payment has 

been withheld in violation of the act does not, alone, merit the 

entry of a separate and final judgment as the Appeals Court held

in Tocci Bldg. Corp. v. IRIV Partners, LLC, 101 Mass. App. Ct. 

133 (2022) (Tocci), a decision relied upon by the motion judge 

in the instant case. Rather, claims, cross claims, and

counterclaims must all be carefully examined together to 

determine whether the various elements of Mass. R. Civ. P. 

54 (b), 365 Mass. 820 (1974), are satisfied. Here, no such 

examination took place, so we vacate and remand the rule 54 (b) 

certification to the motion judge for reconsideration.2

1. Background. a. Facts. In November 2018, Graycor 

entered into a general contract with Pacific Theatres Exhibition 

Corp. (Pacific) for the construction of a multi-screen movie 

2 We acknowledge the amicus briefs submitted by Associated 

Subcontractors of Massachusetts, Inc.; and Construction 

Industries of Massachusetts, Inc., and Utility Contractors 

Association of New England, Inc.
5

theater known as ArcLight Boston Garden on property that Pacific 

leased from Podium Owner, LP, the owner of the property. The 

original maximum price for constructing the movie theater was 

$18,962,890. Graycor in turn executed a subcontract with

Business Interiors for Business Interiors to complete the 

flooring for the movie theater. The subcontract had an original 

total price of $528,426. Change orders increased the final 

subcontract price to $608,158. 

The subcontract includes various provisions addressing 

periodic payments, including the requirement that 

"[t]he Subcontractor [Business Interiors] shall submit its 

periodic applications for payment of the Subcontract Price 

(the 'Periodic Application') on a form acceptable to 

Contractor [Graycor] not later than the 15th calendar day 

of the month . . . .

"Subject to the other terms of the Subcontract, the 

Contractor will make payment of a Periodic Application for 

payment promptly upon the Contractor's receipt of payment 

from the Owner [Pacific] for the Work that is the subject 

of the Periodic Application, but in no event later than the 

date required by applicable law."

On March 20, 2020, Business Interiors submitted an

application for payment no. 19 to Graycor, seeking to be paid 

$75,745.40. Graycor did not dispute the dollar amount listed, 

nor did it provide written notice rejecting the application. 

Nevertheless, Graycor did not pay Business Interiors any portion 

of the $75,745.40. On April 22, 2020, Business Interiors 

submitted an application for payment no. 20 to Graycor for
6

$26,421.30. Again, Graycor did not dispute the dollar amounts, 

nor did it provide written notice rejecting the application, but 

it did not pay any portion of the $26,421.30 requested. On 

August 18, 2020, Business Interiors submitted its final 

application for payment in the amount of $25,022.30. As with 

the other two applications for payment, Graycor did not dispute 

the dollar amount, provided no written notice rejecting Business 

Interiors's final application for payment, and did not pay any 

portion of the $25,022.30 itemized in the final application for 

payment.

Around the same time, Graycor was itself attempting to get 

paid by Pacific, which was experiencing financial difficulties

due to the COVID-19 pandemic. In late March 2020, a Graycor 

project manager sent an e-mail message to Pacific's director of 

finance to determine the status of several overdue unpaid 

invoices. Pacific's director of finance responded that "due to 

COVID-19, all our theaters were forced to close and at this time 

we do not have any revenue coming in" and "all of our payables 

are being held until further notice." After that, based on the 

record before us, it appears that communication between Pacific 

and Graycor ceased.

b. Procedural history. In September 2020, Business 

Interiors sued Graycor; Pacific; Podium Developer LLC; and 
7

Podium Owner, LP,3 in the Superior Court, seeking to recover the 

unpaid balances. Specifically, Business Interiors sued Graycor 

for breach of contract, breach of the covenant of good faith and 

fair dealing, violation of G. L. c. 93A, and quantum meruit. 

Business Interiors's claims centered on Graycor's failure to pay

or formally dispute the three applications for payment within 

the time period defined by the prompt pay act. Graycor, in its 

answer, brought cross claims against Pacific and Podium for 

breach of contract, quantum meruit, common-law indemnity, 

contribution, unjust enrichment, and violation of G. L. c. 93A. 

In June 2022, Business Interiors served the parties with a 

motion for summary judgment on its breach of contract (count I) 

claim against Graycor. In response, Graycor, for the first 

time, raised an impossibility defense. At a December 2022 

hearing on the motion, Graycor also argued for the first time 

that the subcontract was not covered by the prompt pay act 

because it was not eligible for a lien under G. L. c. 254, § 2 

or 4, at the time the lawsuit was brought. In February 2023, 

the motion judge allowed summary judgment in favor of Business 

Interiors on its breach of contract claim, ruling that Graycor 

committed a breach of its subcontract with Business Interiors by 

3 Podium Owner, LP, was the owner of the underlying real 

estate, and Podium Developer LLC was the ground tenant under a 

long-term ground lease with Podium Owner, LP. We refer to the 

two Podium entities simply as "Podium." 
8

failing to submit written rejections of the three applications 

for payment within the time periods required by the prompt pay 

act. In her decision, the motion judge explained that the 

subcontract had incorporated the act's provisions into the 

subcontract. The motion judge did not address the issue raised 

for the first time at the hearing that the subcontract was not 

subject to the act. Relying on Tocci, 101 Mass. App. Ct. 133, 

the motion judge entered separate and final judgment, pursuant 

to Mass. R. Civ. P. 54 (b), as to the money withheld by Graycor 

in violation of the act. Graycor timely appealed, and we 

transferred the case from the Appeals Court on our own motion.

2. Discussion. a. Standard of review. We review the 

Superior Court's grant of summary judgment de novo. Adams v.

Schneider Elec. USA, 492 Mass. 271, 280 (2023). "Summary 

judgment is appropriate where there is no material issue of fact 

in dispute and the moving party is entitled to judgment as a 

matter of law. We review the evidence in the light most 

favorable to the party against whom summary judgment entered," 

in this case, Graycor (quotations and alteration omitted). Id., 

quoting Le Fort Enters., Inc. v. Lantern 18, LLC, 491 Mass. 144,

148-149 (2023).

b. Prompt pay act. The prompt pay act, like any other 

statute, "must be interpreted according to the intent of the 

Legislature ascertained from all its words construed by the 
9

ordinary and approved usage of the language, considered in 

connection with the cause of its enactment, the mischief or 

imperfection to be remedied and the main object to be 

accomplished, to the end that the purpose of its framers may be 

effectuated" (citation omitted). Reuter v. Methuen, 489 Mass. 

465, 470 (2022). We also do not interpret words in the statute 

in isolation; we "look to the statutory scheme as a whole so as 

to produce internal consistency within the statute" (quotations 

and citations omitted). Plymouth Retirement Bd. v. Contributory 

Retirement Appeal Bd., 483 Mass. 600, 605 (2019).

i. Statutory framework of the act. The act "applies to 

certain private contracts for construction with respect to 

projects for the erection, alteration, repair, or removal of 

buildings or structures, or for other improvements to real 

property, where the 'contract with the project owner has an 

original contract price of $3,000,000 or more.'" Tocci, 101 

Mass. App. Ct. at 134, quoting G. L. c. 149, § 29E (a). 

According to the act, "contracts for construction" are contracts 

"for which a lien may be established under [G. L. c. 254, § 2 or 

4]." G. L. c. 149, § 29E (a). 

The act provides that 

"[e]very contract for construction shall provide reasonable 

time periods within which: (i) a person seeking payment 

under the contract shall submit written applications for 

periodic progress payments; (ii) the person receiving the 

application shall approve or reject the application, 
10

whether in whole or in part; and (iii) the person approving 

the application shall pay the amount approved."

 

G. L. c. 149, § 29E (c). For submission of payment, the time 

period is a maximum of thirty days, "beginning with the end of 

the first calendar month occurring at least [fourteen] days 

after the person seeking payment has commenced performance." 

Id. For approval or rejection of an application for payment, 

the time period is a maximum of fifteen days after submission of 

the application, though this time period "may be extended by 

[seven] days" for "each tier of contract below the owner of the 

project." Id. Payment must be generally made forty-five days 

after the application for payment is approved. Id. 

According to the act, "[a]n application for a periodic 

progress payment which is neither approved nor rejected within 

the time period shall be deemed to be approved unless it is 

rejected before the date payment is due." G. L. c. 149, 

§ 29E (c). The act requires that a rejection of an application 

for payment "be made in writing" and "include an explanation of 

the factual and contractual basis for the rejection," along with 

a certification that the rejection is "made in good faith." Id. 

If rejected, the application "shall be subject to the applicable 

dispute resolution procedure" provided in the construction 

contract. Id. In addition, the act provides that, subject to a 

few exceptions, any provision in a "contract for construction 
11

which makes payment to a person performing the construction 

conditioned upon receipt of payment from a third person that is 

not a party to the contract shall be void and unenforceable." 

G. L. c. 149, § 29E (e). Further, any contractual provision 

"which purports to waive or limit any provisions of [the act] 

shall be void and unenforceable." G. L. c. 149, § 29E (g).

Under the plain language of the act, Graycor had twenty-two 

days from the date of submission of each of Business Interiors's

three applications for payment to approve or reject the 

application.4 However, Graycor neither approved nor rejected 

Business Interiors's applications within these time periods. 

Thus, according to the act, all three applications for payment 

were "deemed to be approved," and Graycor was required to pay 

them. G. L. c. 149, § 29E (c).

Graycor and Business Interiors appear to agree on this 

basic requirement of the act but disagree over whether this 

decides the question of summary judgment on count I. Graycor 

disputes whether the subcontract between it and Business 

Interiors is a "contract for construction" as defined by G. L. 

c. 149, § 29E (a), arguing that there is a triable issue of fact 

4 Graycor had twenty-two days because it had (a) the initial 

fifteen days prescribed by the act plus (b) an additional seven

days because Business Interiors was a subcontractor and thus was 

one tier below the original contract between Pacific and 

Graycor. 
12

as to whether the contract was eligible for a lien under G. L. 

c. 254, § 2 or 4. Further, Graycor contends it has a viable 

impossibility defense due to the intervening COVID-19 pandemic, 

which resulted in Pacific ceasing payments to Graycor. Business 

Interiors contends that both issues were waived, and if they 

were not, neither has merit. We address each issue in turn. 

ii. Definition of "contract for construction." We 

conclude that the issue whether the subcontract meets the 

definition of a "contract for construction," which was raised

for the first time at the hearing on the summary judgment

motion, was not properly raised, and that it was not an abuse of 

discretion for the motion judge to disregard it. Cf. Boss v. 

Leverett, 484 Mass. 553, 563 (2020) (finding argument not 

properly presented where issue was not clearly raised in cross 

motion for summary judgment). However, because Graycor presents 

an undecided question regarding the meaning of "contract for 

construction" in the act, we address the merits. See Clark v. 

Rowe, 428 Mass. 339, 341 (1998) ("Although the issue was not 

preserved for appellate review, the question . . . is unanswered 

in this Commonwealth. The issue is fully briefed and likely to 

arise in other cases. We choose in our discretion to discuss 

the issue" [footnote omitted]). We conclude, as a matter of 

law, that the subcontract at issue is a "contract for 

construction" under the prompt pay act.
13

The act defines a "contract for construction" as "a 

contract for which a lien may be established under [G. L. 

c. 254, § 2 or 4,] on a project for which the person whose 

contract with the project owner has an original contract price 

of $3,000,000 or more." G. L. c. 149, § 29E (a). Under G. L.

c. 254, § 2:

"A person entering into a written contract with the owner 

of any interest in real property, or with any person acting 

for, on behalf of, or with the consent of such owner for 

the whole or part of the erection, alteration, repair or 

removal of a building, structure, or other improvement to 

real property, or for furnishing material or rental 

equipment, appliances, or tools therefor, shall have a lien 

upon such real property . . . owned by the party with whom 

or on behalf of whom the contract was entered into . . .

when notice of said contract is filed or recorded in the 

registry of deeds . . . ."

While G. L. c. 254, § 4, provides for subcontractor liens:

"Whoever furnishes labor, . . . or who furnishes material, 

or both labor and material, or furnishes rental equipment, 

appliances or tools, or who performs professional services, 

under a written contract with a contractor, or with a

subcontractor of such contractor, may file or record in the 

registry of deeds . . . a notice of his contract . . . .

Upon filing or recording a notice . . . and giving actual 

notice to the owner of such filing, the subcontractor shall 

have a lien upon such real property . . . owned by the

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

The original contract price is over $3 million, so the only 

issue is whether the subcontract is "a contract for which a lien 

may be established under" G. L. c. 254, § 2 or 4. Graycor 

argues that because any lien that might have been established on 

the real property interest owned by Pacific, the party that
14

entered into the original contract, would have been dissolved 

when Pacific's lease with the owner was terminated, there is a 

triable issue whether Graycor and Business Interiors's

subcontract meets the definition of a "contract for 

construction" under G. L. c. 149, § 29E (a). We disagree.

By referencing contracts for which liens "may be 

established" pursuant to G. L. c. 254, §§ 2 and 4, the prompt 

pay act defines its scope broadly, not narrowly. It does so in 

two respects. First, it refers to construction contracts for 

which liens "may be established," not to contracts for which 

liens have been established, and thus, in defining its scope, it 

does not impose the strict compliance requirements necessary for 

the enforcement of particular liens as apparently argued by 

Graycor. Second, G. L. c. 254, §§ 2 and 4, describe a very wide 

range of construction contracts for which liens may be created.

Thus, G. L. c. 254, §§ 2 and 4, are referenced in the prompt pay 

act not to narrow the act's applicability, but to demonstrate 

that the act encompasses within its ambit a broad scope of

construction contracting. 

Even Graycor recognizes that, at least when the contract 

was entered into, Business Interiors might have established a 

lien pursuant to G. L. c. 254, § 4, against Pacific's leasehold 

interest. It just argues that "[a]t the time [Business 

Interiors] filed this lawsuit on September 15, 2020, Podium 
15

Developer LLC, the holder of the ground lease and landlord for 

the subject project, terminated Pacific's lease," and thus any 

lien would have been dissolved. See Trace Constr., Inc. v. Dana 

Barros Sports Complex, LLC, 459 Mass. 346, 357 (2011) ("As a 

general matter, a lien on a leasehold is extinguished when the 

rights of the lessee expire"). As this is not a lien 

enforcement action, however, the only issue is whether a lien 

may have been established pursuant to this subcontract.5 Here 

that requirement was clearly met at least at the time the 

subcontract was executed. Put more simply, this was the type of 

construction contract for which a lien pursuant to G. L. c. 254, 

§ 2 or 4, might have been established. 

iii. Availability of common-law defenses under the act.

The primary issue presented in this case is whether the prompt 

pay act precludes a general contractor from asserting common-law 

affirmative defenses to a breach of contract claim based on the 

failure to pay. As discussed supra, the act provides: "An 

5 Business Interiors moves to strike from the record 

appendix the lease termination document included by Graycor on 

the ground that, in violation of Mass. R. A. P. 16 (e), as 

appearing in 481 Mass. 1628 (2019), and Mass. R. A. P. 18 (a), 

as appearing in 481 Mass. 1637 (2019), the lease termination 

document was never submitted as part of the record before the 

Superior Court and Graycor failed to obtain leave of this court 

to include the document. Because our decision does not rest on 

the lease termination document, we need not consider the motion. 

See Matter of the Discipline of an Attorney, 442 Mass. 660, 674 

n.29 (2004).
16

application for a periodic progress payment which is neither 

approved nor rejected within the time period shall be deemed to 

be approved unless it is rejected before the date payment is 

due." G. L. c. 149, § 29E (c). The act does not, however,

address common-law defenses. We conclude that common-law

defenses are not precluded by the act, even if a contractor

fails to approve or reject an application for payment as 

required. However, a contractor that does not approve or reject 

an application for payment in compliance with the time periods

and other requirements of the act must pay the amount due prior 

to, or contemporaneous with, the invocation of any common-law

defenses in any subsequent proceeding regarding enforcement of 

the invoices. In the instant case, no such payment was made.6

"[A] statutory repeal of the common law will not be lightly 

inferred; the Legislature's 'intent must be manifest.'" 

Passatempo v. McMenimen, 461 Mass. 279, 290 (2012), quoting 

Comey v. Hill, 387 Mass. 11, 20 (1982). The Legislature's 

6 Justice Wendlandt's opinion, concurring in part and 

dissenting in part (concurrence-dissent), incorrectly states 

that the claim is waived upon the filing of any responsive 

pleading to a claim for breach of contract against a nonpaying 

contractor. See post at . The claim is preserved as long as 

the invoice is paid no later than when the defense is first 

presented in such a proceeding. Put simply, a contractor is 

free to raise defenses, provided it pays the invoice before or 

contemporaneously with raising those defenses. What the 

contractor cannot do is what Graycor did here, raise the 

defenses without paying the invoice.
17

"intent may be 'clearly expressed' in one of two ways: by words 

in the statute itself clearly stating that the statute 

supersedes the common law, or by 'necessary implication.'" 

Chelsea Hous. Auth. v. McLaughlin, 482 Mass. 579, 590 (2019), 

quoting Lipsitt v. Plaud, 466 Mass. 240, 244 (2013). "A statute 

preempts common-law doctrine by necessary implication where the 

doctrine is so repugnant to and inconsistent with the statute 

that both cannot stand" (quotations and citation omitted). 

McLaughlin, supra at 591. In other words, "[c]an the common-law 

doctrine [at issue] and the statute reasonably coexist in 

harmony, or must the common-law doctrine necessarily give way in 

order to effectuate the purpose of the statute?" Id.

We emphasize that the act does not expressly preempt all 

common-law defenses to breach of contract. If the Legislature 

intended for the failure to accept or reject payment within the 

tight time frames established by the act to eliminate all 

common-law defenses, "we think it would have done so explicitly"

(citation omitted). See Lipsitt, 466 Mass. at 248-249. We 

likewise conclude that the act does not completely eliminate 

common-law defenses by necessary implication. Rather the

statutory requirements and the common-law defenses can coexist, 

so long as payment is required to be made prior to, or 

contemporaneous with, the raising of any such defenses in any 

proceeding relating to the enforcement of such invoices. See 
18

McLaughlin, 482 Mass. at 591. More precisely, as explained by 

Associated Subcontractors of Massachusetts, Inc. (ASM), in its 

amicus brief: "To the extent the [contractor] has any viable 

contract or common[-]law defenses to payment, such defenses are 

still available for presentation in a subsequent forum. 

However, the contractor must first pay the funds purportedly 

owed and then seek to disgorge such funds in a succeeding 

adjudication."7

In sum, payment of overdue approved invoices must be made 

prior to, or contemporaneous with, raising common-law defenses, 

or the defenses cannot be raised.8

7 This reading of the act is buttressed by the legislative 

history. While the act provides significant protections to 

subcontractors, the legislation was subject to heavy lobbying by 

both contractors and subcontractors, and it was ultimately the 

product of a hard-fought compromise. Cheney, New Law Requires 

"Prompt Pay" for Construction Contractors, State House News 

Service, Aug. 16, 2010. While contractors had previously 

opposed a broader version of the bill, "the most objectionable 

elements" of the legislation, in their view, were successfully 

"negotiated out." Id. The informed interpretation of the ASM

in its amicus brief, which we discuss and adopt supra, reflects 

this hard-fought compromise. See generally Bantz, Legislation in 

Mass. Promises Major Changes for Construction Law Bar, 

Massachusetts Lawyers Weekly, Aug. 30, 2010 (noting that ASM 

"spent five years working to get the bill passed"). The 

legislation did not eliminate contractor defenses altogether, as 

Business Interiors argues, or have no meaningful consequence, as 

Graycor contends, but rather requires a contractor to pay the 

invoices in order to exercise its defenses.

8 In some cases, preliminary injunctions ordering immediate 

payment of outstanding invoices may also be justified when the 

failure to pay an invoice causes irreparable harm to a 
19

We conclude that such a reading of the statute is a 

necessary implication of it. The Legislature's determination --

that the failure to accept or reject a periodic payment 

application within the defined time requirements is deemed an 

approval of the payment -- must have meaningful consequences.9

Allowing common-law defenses to be raised and pursued without 

paying the now "deemed to be approved" invoices would render 

subcontractor's business. See Massachusetts Port Auth. v. Turo 

Inc., 487 Mass. 235, 247 (2021), quoting GTE Prods. Corp. v. 

Stewart, 414 Mass. 721, 724 (1993) ("A plaintiff experiences 

irreparable injury if there is no adequate remedy at final 

judgment"). While economic harm alone does not usually rise to 

the level of irreparable harm, economic loss "may constitute 

irreparable harm where the loss threatens the very existence of 

the movant's business." Hull Mun. Lighting Plant v. 

Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640, 643 

(1987). Moreover, the combination of noneconomic and economic 

harm may constitute irreparable harm. See Loyal Order of Moose, 

Inc., Yarmouth Lodge # 2270 v. Board of Health of Yarmouth, 439 

Mass. 597, 603 (2003) (smoking ban caused irreparable harm to 

lodge where ban caused both substantial decrease in revenue and 

"the likelihood that employees will be laid off and the hours of 

operation diminished"). We do not decide whether such 

injunctive relief would have been justified in the instant case, 

as no such injunctive relief was sought.

 

9 The concurrence-dissent asserts that "[t]he act provides 

no private right of action or alternative mechanism to 

subcontractors to secure prompt payment." Post at note 2. This 

ignores the explicit statutory mandate to include the prompt 

payment provisions in all applicable construction contracts, 

which are of course then enforceable by the private parties in a 

breach of contract claim. See G. L. c. 149, § 29E (c), (d) 

("Every contract for construction shall provide reasonable time 

periods . . ." [emphasis added]). Moreover, any contract terms

contrary to the act are void and unenforceable. G. L. c. 149, 

§ 29E (g). 
20

this approval to be of no import.10 This "is so repugnant to and 

inconsistent with the statute that both cannot stand"

(quotations and citation omitted). McLaughlin, 482 Mass. at 

591. Thus, in contrast to a complete waiver, the payment of the 

amounts due in order to raise common-law defenses is a necessary 

implication of the "deemed approved" provision in the statute.

In the instant case, however, Graycor sought to raise and 

pursue defenses without ever paying the invoices. This it 

cannot do. Summary judgment was therefore properly allowed on

count I of Business Interiors's complaint. 

c. Separate and final judgment. Relying on the reasoning 

of the Appeals Court in Tocci, the Superior Court issued a

separate and final judgment on count I of Business Interiors's

10 According to the concurrence-dissent, the only 

consequence to a contractor that fails to pay an approved 

invoice is that the contractor would be in material breach of 

the contract. See post at , . It is not surprising that 

this issue is neither raised nor addressed by the parties. That 

is perhaps because there is "little doubt" that the repeated 

failure to pay approved invoices would be a material breach and 

would excuse the nonbreaching party from its obligations for 

further performance under the contract. See G4S Tech. LLC v. 

Massachusetts Tech. Park Corp., 479 Mass. 721, 734 (2018). 

This, however, does not address the issue of defenses, as a 

breaching party may of course raise defenses to a material 

breach of contract. See Anthony's Pier Four, Inc. v. HBC 

Assocs., 411 Mass. 451, 470-471 (1991) (analyzing breaching 

party's defense that nonbreaching party's postbreach conduct 

waived its claim). The concurrence-dissent therefore provides 

no significant meaning or consequence to the "deemed approved" 

provision of the act. See Ropes & Gray LLP v. Jalbert, 454 

Mass. 407, 412 (2009) ("A statute should be construed so as to 

give effect to each word . . ."). 
21

complaint. Because we conclude that the prompt pay act, 

particularly as clarified by our decision today, requires a 

traditional and not truncated Mass. R. Civ. P. 54 (b) analysis, 

we briefly address this issue as well, and vacate the rule 

54 (b) certification decision. See Long v. Wickett, 50 Mass. 

App. Ct. 380, 385 n.6 (2000) ("because important policy 

interests are implicated . . . we raise and resolve the issue 

[of rule 54 (b) certification] sua sponte")

In Tocci, 101 Mass. App. Ct. at 142-143, rather than 

conducting a traditional analysis of the factors required for 

rule 54 (b) certification, the Appeals Court concluded that 

separate and final judgment was proper because "[t]o allow the 

defendants to retain the moneys wrongfully withheld in violation 

of the statute until the final resolution of their 

postcompletion contract action would eviscerate the scheme for 

prompt payment or rejection-and-resolution created by the 

Legislature." Nothing, however, in the act's text indicates 

that the Legislature intended the prompt pay act to provide for 

immediate appeals of the failure to accept or reject a periodic 

payment.11 See DeCosmo v. Blue Tarp Redev., LLC, 487 Mass. 690, 

11 Moreover, nothing in the legislative history indicates 

any inclination by the Legislature to permit interlocutory 

appeals. The legislative record is entirely silent on the 

question of appellate review. 
22

695 (2021) ("If the [statute's] language is clear and 

unambiguous, it must be interpreted as written" [citation 

omitted]). "[A]bsent special authorization, an appellate court 

will reject attempts to obtain piecemeal review of trial rulings 

that do not represent final dispositions on the merits"

(quotations and alteration omitted). Fabre v. Walton, 436 Mass. 

517, 520-521 (2002), S.C., 441 Mass. 9 (2004), quoting Ashford

v. Massachusetts Bay Transp. Auth., 421 Mass. 563, 565 (1995). 

The unduly expansive interpretation of the preemptive effect of 

the act's "scheme" set out in Tocci, and adopted by the motion

judge here, undermines the ordinary principles cautioning 

against interlocutory appeals.

We therefore emphasize that the traditional rule 54 (b) 

requirements apply in prompt pay act cases and the truncated 

analysis applied by the Appeals Court in Tocci does not.12 In 

the instant case, we have multiple claims by Business Interiors

12 We note that the Appeals Court in Tocci, and the motion 

judge here, did not have the benefit of this decision. Also, as 

a practical matter, the requirement that a contractor pay the 

invoices prior to, or contemporaneous with, the raising of any

common-law defenses should address the particular problem with 

which the Superior Court was presented here under rule 54 (b), 

that is, whether to allow a patent violation of the prompt pay 

act to go unresolved while the litigation over that violation

continued. When the invoice is actually paid to preserve the 

defense, the issue that was of most concern to the Superior 

Court in this case and the Appeals Court in Tocci is, for rule

54 (b) purposes, obviously no longer present.
23

against Graycor, Pacific, and Podium in addition to its prompt 

pay act claim,13 and cross claims by Graycor against Podium and 

Pacific.14 All of these additional claims should have been 

considered as part of the motion judge's rule 54 (b) analysis,

but they were not, due to the motion judge's reliance on the 

abbreviated analysis in Tocci. See Barbetti v. Stempniewicz, 

490 Mass. 98, 104 (2022), quoting Long, 50 Mass. App. Ct. at 391 

("To satisfy the requirements of rule 54 [b] . . . the claim 

[finally] adjudicated must be a 'claim for relief' separable 

from and independent of the remaining claims in the case"); 

Long, supra at 390-391 ("Although claims and counterclaims are 

generally considered separate claims under rule 54 [b], the 

presence of a counterclaim weighs heavily against the grant of 

54 [b] certification, particularly when there is a substantial 

interdependence and overlap between dismissed claims and pending 

counterclaims" [citations, quotations, and alterations

13 Business Interiors brought additional claims alleging 

breach of the covenant of good faith and fair dealing, violation 

of G. L. c. 93A, and quantum meruit against Graycor, as well as 

quantum meruit claims against Pacific and quantum meruit and 

unjust enrichment claims against Podium. It also represents 

that it is prepared to dismiss its claims against Graycor if the 

invoice payment is made and its attorney's fees are paid.

14 In its answer to Business Interiors's complaint, Graycor 

brought cross claims against Pacific and Podium alleging breach 

of contract, quantum meruit, common-law indemnity, contribution, 

unjust enrichment, and violation of G. L. c. 93A.
24

omitted]). See also Yanis v. Paquin, 96 Mass. App. Ct. 134, 140 

n.12 (2019) (extending counterclaim analysis in rule 54 [b]

context to cross claims). All of this requires a reversal and 

remand of the rule 54 (b) certification.15

3. Conclusion.16 The certification and entry, pursuant to 

Mass. R. Civ. P. 54 (b), of the partial judgment for Business 

Interiors on count I of the complaint is vacated; the order on 

summary judgment is restored to its status under the second 

sentence of rule 54 (b); and the case is remanded to the 

Superior Court for further proceedings consistent with this 

opinion. 

So ordered.

15 Finally, the concurrence-dissent's suggestion that we 

leave the plaintiff with a Pyrrhic victory is confusing to say 

the least, especially given its recognition that separate and 

final judgment was improperly allowed. See post at . We 

have not definitively ruled on the rule 54 (b) motion, we have 

just stated that the correct legal standards need to be applied. 

We have also in no way suggested that a preliminary injunction 

would not have been appropriate here, if the requirements of 

irreparable harm had been met, but no such relief was requested. 

Consequently, it is the concurrence-dissent, by not requiring

the payment of invoices prior to, or contemporaneous with, the

exercise of defenses, that leaves all subcontractors with less

protection, or in the words of the concurrence-dissent, a 

Pyrrhic victory, against such improper payment practices by 

contractors in the future. 

16 Because multiple claims and cross claims remain 

outstanding, we do not reach the question whether Business 

Interiors is entitled to attorney's fees and costs. As the 

Superior Court stated, "the case has not been entirely 

resolved," and thus, "the issue of attorney's fees and costs is 

best addressed all at once at the conclusion of the litigation."
WENDLANDT, J. (concurring in part and dissenting in part, 

with whom Dewar, J., joins). Time is of the essence under the 

prompt pay act, G. L. c. 149, § 29E (act), as the name suggests; 

it mandates that construction contracts include provisions that 

require timely payment of invoices. G. L. c. 149, § 29E (c) 

("Every contract for construction shall provide reasonable time 

periods within which: [i] a person . . . shall submit written 

applications for . . . payments; [ii] the person receiving the 

application shall approve or reject the application . . . ; and 

[iii] the person approving the application shall pay the amount 

approved"). These prompt payment provisions, the court rightly 

concludes, required Graycor Construction Company Inc. (Graycor) 

to accept or reject Business Interiors Floor Covering Business 

Trust (Business Interiors) invoices within the specified time

frame. See ante at . Having not done so, the invoices are 

"deemed to be approved," see G. L. c. 149, § 29E (c), and 

Graycor was required to promptly pay the owed funds.1 In other 

words, Graycor is in material breach of the agreement not only 

because it failed to pay Business Interiors's invoices but 

1 The time frame for payment pursuant to the act was 

incorporated into the contract. The price and billing 

requirements attachment to the contract states, "the Contractor 

will make payment of a Periodic Application for payment promptly 

upon the Contractor's receipt of payment from the Owner for the 

Work that is the subject of the Periodic Application, but in no 

event later than the date required by applicable law" (emphasis 

added). See ante at .
2

because it failed to pay those invoices promptly. G4S Tech. LLC

v. Massachusetts Tech. Park Corp., 479 Mass. 721, 733-734 

(2018), quoting EventMonitor, Inc. v. Leness, 473 Mass. 540, 546 

(2016) ("a material breach of a contract occurs when the breach 

concerns an 'essential and inducing feature of the contract'"). 

I also agree with the court that, under the act, failure to 

make timely payments does not waive defenses to breach of 

contract. See ante at . Nothing in the act itself suggests 

such a waiver. See G. L. c. 149, § 29E (c)-(g). And, such a 

waiver is unsupported by the legislative history, which shows 

the act's terms were the result of a hard-fought compromise in 

which the Legislature ultimately chose not to enact stronger 

statutory remedies to address untimely payments. See Cheney, 

New Law Requires "Prompt Pay" for Construction Contractors, 

State House News Service, Aug. 16, 2010 ("The bill was the 

subject of a torrent of lobbying," and during "contentious" 

negotiations, "[c]ontractors . . . negotiated out" certain 

elements of bill). See, e.g., House Bill No. 1789 (Jan. 2007) 

(earlier version of bill providing additionally for recovery of 

interest on unpaid amounts as well as attorney's fees). As a 

result, the court properly concludes that such defenses are 

preserved and may be asserted in a subsequent claim. See, e.g., 

Suffolk Constr. Co. v. Benchmark Mechanical Sys., Inc., 475 

Mass. 150, 154-155 (2016) (allowing contractor to pursue unjust 
3

enrichment claim against subcontractor and bank after it 

mistakenly paid subcontractor). 

And I agree with the court's holding that the act provides 

no basis for dispensing with our usual stringent standard for 

entry of separate and final judgment under Mass. R. Civ. P. 

54 (b), 365 Mass. 820 (1974). See Barbetti v. Stempniewicz, 490 

Mass. 98, 103 (2022). In the absence of a specific provision so 

stating, the act's goal that subcontractors be paid timely does 

not dispense with the ordinary rules of civil procedure and 

their disfavor for piecemeal appeals.

I write separately because I disagree with the court's 

further creation of a remedy unsupported by the act -- namely, 

its decision to deem these defenses, which the court agrees are 

preserved, nevertheless, to be waived upon the filing of any 

responsive pleading to a claim for breach of contract against a 

nonpaying contractor like Graycor. Once the responsive pleading 

to the suit is filed, the previously preserved defenses vanish, 

according to the court. See ante at note 6.

But the act merely requires the inclusion of specific terms 

in construction contracts governing the processing of payments, 

which can be enforced through a breach of contract claim.2 The 

2 The act provides no private right of action or alternative 

mechanism to subcontractors to secure prompt payment.
4

Legislature chose to go no further. Contrast, e.g., House Bill 

No. 4730 (May 8, 2008) (earlier version of bill more broadly 

establishing "rights and obligations prescribed by . . . 

statute," including that parties to construction contracts 

"shall make all payments in accordance with the terms of that 

contract, which shall be in accordance with the provisions of 

this section"). For better or worse, this is a feature of the 

act, not a latent error to be fixed by judicial fiat. See 

Commonwealth v. Calvaire, 476 Mass. 242, 245 (2017) ("We do not 

read into the statute a provision which the Legislature did not 

see fit to put there, nor add words that the Legislature had an 

option to, but chose not to include" [citation omitted]). 

Indeed, analysis of the act and its history shows, as the court 

concludes, that no such waiver formed any part of the compromise 

legislation. See ante at note 7.

Contrary to the court's assertion, see ante at , the act 

still has "meaningful consequences." For example, subject to 

certain conditions, the act renders "void and unenforceable" 

contractual terms that purport to require a subcontractor who 

has not been paid timely to continue to work. G. L. c. 149, 

§ 29E (f). Moreover, payment delayed beyond the time frame set 

forth by the contractual provisions required by the act 

constitutes a material breach giving rise to a claim for breach 

of contract. This does not mean that a subcontractor always 
5

must await resolution of defenses to the breach of contract 

claim before obtaining payment for the invoices "deemed . . . 

approved"; a subcontractor can bring a motion for a preliminary 

injunction, if it can show (1) a likelihood of success on the 

merits;3 (2) that irreparable harm will result from denial of the 

injunction;4 and (3) that, in light of its likelihood of success 

on the merits, the risk of irreparable harm outweighs the 

potential harm to the breaching party.5 See Boston Firefighters 

3 The likelihood of success on the merits prong of the 

preliminary injunction standard is met where, as here, a 

subcontractor has not been paid timely as required by the 

contractual provisions mandated by the act. See Doe v. 

Worcester Pub. Sch., 484 Mass. 598, 601-603 (2020) (likelihood 

of success on merits where school district's action failed to 

abide by unambiguous statutory language that expelled student 

receive hearing with superintendent). 

4 Economic loss can meet this prong only where nonpayment 

"threatens the very existence of [the] business." Hull Mun. 

Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 

Mass. 640, 643 (1987) (municipal lighting company's nonpayment 

constituted irreparable harm to electric wholesaler because 

wholesaler "relie[d] solely on payments from municipal lighting 

companies to meet its bond obligations"). Thus, while a 

preliminary injunction will be unavailable to parties who are 

not at risk of such dire consequences, the tool may be used by 

the most vulnerable parties whom the act targeted for 

protection. See Cheney, New Law Requires "Prompt Pay" for 

Construction Contractors, State House News Service, Aug. 16, 

2010 (describing act as "a lifeline to aggrieved construction 

[sub]contractors . . . many of which . . . reduced staffing 

levels or [went] out of business altogether" and for which "slow 

payment ha[d] become [the] single most important business 

issue").

5 The act demonstrates the Legislature's balancing in favor 

of those who do not receive timely payment of invoices. See 

G. L. c. 149, § 29E (c)-(g).
6

Union, Local 718, Int'l Ass'n of Fire Fighters, AFL-CIO v. 

Boston, 491 Mass. 556, 562 (2023), citing Garcia v. Department 

of Hous. & Community Dev., 480 Mass. 736, 747 (2018); Hull Mun. 

Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 

Mass. 640, 642-643 (1987) (affirming "preliminary injunction 

ordering [plaintiff] to continue making payments to [defendant] 

as required by [their contracts]"). This garden-variety tool, 

if granted, comports with the act's intent to ensure 

subcontractors receive prompt payment, see G. L. c. 149, 

§ 29E (c), without quashing a contractor's ability to marshal 

defenses. See ante at ("We emphasize that the act does not 

expressly [or by implication] preempt all common-law defenses to 

breach of contract"). Of course, a party so enjoined, which 

fails to pay, is subject to contempt. United Factory Outlet, 

Inc. v. Jay's Stores, Inc., 361 Mass. 35, 37 (1972) (upholding 

civil contempt decree against defendants who failed to abide by

preliminary injunction). 

By contrast, the court grants Business Interiors a Pyrrhic 

victory. On the one hand, it affirms summary judgment in favor 

of Business Interiors. On the other hand, it remands the case 

for further proceedings, further delaying any payment to 

Business Interiors, having concluded, albeit correctly, that the 

Superior Court judge's entry of separate and final judgment on 
7

the breach of contract claim was improper under Mass. R. Civ. P. 

54 (b).6 For these reasons, I respectfully dissent in part.

6 Here, of course, the claims, counterclaims, and cross 

claims stem from the same facts. See Barbetti, 490 Mass. at 103 

(rule 54 [b] requires claim to be "separable from and 

independent of the remaining claims in the case" and not 

"inextricably intertwined" with them [citations omitted]).