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-1117

INTERSHELL INTERNATIONAL CORP.

vs.

GREAT EASTERN MARINE SERVICE, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This action concerns a contract for the defendant, Great 

Eastern Marine Service, Inc. (GEM), to construct a pier for the 

plaintiff, Intershell International Corp. (Intershell). The 

parties dispute whether the agreement included a condition 

precedent that GEM would obtain a building permit such that 

construction would be complete before June 1, 2020. GEM did not 

obtain a building permit in time to do so (through no fault of 

either party), and Intershell then brought this action in which 

both parties alleged, among other claims and counterclaims, that 

the other breached their agreement. After a bench trial, a 

judge of the Superior Court concluded that the agreement did 

contain an unfulfilled condition precedent and, as a result, the 
2

contract was unenforceable. The judge ordered GEM to return the 

$100,000 that Intershell previously had paid GEM, less $5,000 

that GEM expended in preparation to complete the work.

The parties cross-appealed from the judgment. GEM argues 

that the judge's findings that the contract contained a 

condition precedent and that Intershell's $100,000 payment 

constituted a refundable deposit were clear error. Intershell 

counters that it was entitled to prejudgment interest on the 

amount it received under the judgment. We vacate so much of the 

judgment as declined to award prejudgment interest and remand 

for reconsideration.1 We otherwise affirm.

Background. We set forth the undisputed facts as well as 

those found by the judge after trial. We reserve certain facts 

for our later discussion.

Intershell is a commercial fishing business and GEM is a 

marine construction business. Howard Monte Rome is Intershell's 

general manager. Kenneth Taliadoros (Kenneth) is GEM's owner 

and president, and Kenneth's son, Jonathan Taliadoros 

(Jonathan), is an engineer for GEM.2

1 Although the judgment itself does not include the order to 

return the deposit, we treat that order as subsumed in the final 

judgment that entered on April 6, 2023.

2 Because Kenneth and Jonathan share a last name, we refer 

to them by their first names.
3

1. The bid and the contract. In December 2019, Intershell 

sought bids to construct a new pier (project) on its property in 

the city of Gloucester (city).3 Intershell wanted the project 

completed by June 1, 2020,4 which was the start of its busy 

season. To that end, Rome and Kenneth, who were acquainted 

because of the parties' previous business dealings over the 

years, met at the property to discuss the project. At that 

meeting, Rome gave Kenneth copies of certain documents including 

an amended order of conditions (OOC) that Intershell had 

obtained for the project from the city's conservation 

commission.

On January 10, GEM sent a written bid for the project in 

the amount of $357,500 to Intershell. The bid provided that 

"[u]nless specifically modified in the attached 

quotation/proposal, payment terms require [one-third] upon 

acceptance, [one-third] upon [fifty percent] completion and 

[one-third] upon [one hundred percent] completion." In the email message accompanying the bid, Kenneth stated that the 

"quote includes [GEM] pulling the building permit for the 

project." Notwithstanding that representation, the bid 

specified that "[a]ll permits are by owner."

3 My Management Group, LLC, an Intershell affiliate, is the 

record owner of the property.

4 Unless otherwise specified, all events took place in 2020.
4

On January 25, Rome, Kenneth, and Jonathan met to discuss 

GEM's bid. During that meeting, the parties agreed to the terms 

set forth in GEM's bid with the following three oral 

modifications: (1) Intershell's first payment to GEM would be 

in the amount of $100,000 rather than one-third of the bid price 

($117,975); (2) GEM was responsible for obtaining the building 

permit for the project; and (3) the project had to be completed, 

and GEM's equipment and barge removed from the site by June 1. 

The parties signed the bid and Intershell provided GEM with 

$100,000. Of the three bids that Intershell received for the 

project, GEM's bid was the highest. However, Intershell 

selected GEM's bid because GEM was the only bidder prepared to 

complete the project by June 1.

2. Building permit and GEM's preparation work. On 

February 19, Kenneth submitted the building permit application 

to the city. Kenneth believed that the city would quickly issue 

the building permit because Intershell already obtained several 

environmental-related permits, including the OOC. On February 

22, GEM brought a barge and other equipment to the job site. At 

that time, Kenneth informed Rome that he had not yet received 

the building permit. A few days later, Jonathan and another GEM 

employee performed some preparation work on the job site, 

including removing debris and preparing to demolish and remove a 
5

concrete slab. GEM spent between $5,000 and $6,000 to complete 

this work.

On February 27, Kenneth contacted the city's building 

department to inquire about the status of the permit application 

and learned that the conservation commission was "holding up" 

approval of the application. Kenneth then contacted the 

conservation commission and was told that the permit application 

had to be denied because the OOC previously obtained by 

Intershell was not valid. Kenneth immediately told Rome and, in 

turn, Rome took prompt action to obtain a new OOC.

Rome kept Kenneth apprised of the status of the OOC, but 

its issuance was delayed by the conservation commission. When 

it became clear that the new OOC would not issue in time for GEM 

to obtain a building permit and complete the project by June 1, 

Intershell took the position that the contract was null and void 

and offered to cover GEM's costs thus far. GEM continued to 

offer to complete the project once the permit issued.

In April, Rome directed Kenneth to remove its barge and 

equipment, and GEM did so. In May, Rome requested that Kenneth 

return Intershell's $100,000 and stated that the parties could 

discuss GEM performing the work in the coming fall or winter. 

GEM continued to offer to perform under the agreement once the 

permit was obtained. That same month, Rome suggested that GEM 

provide a new bid consistent with the lower bid prices that it 
6

previously received (between $220,000 and $265,000) because the 

parties' agreement was "no longer valid" and Intershell was not 

willing to pay "the premium" price for the project given that 

the June 1 deadline could not be met. In June, Rome notified 

Kenneth that Intershell received the OOC and was ready "to make 

a plan for the work." Kenneth responded that the parties' 

attorneys should have further discussions. Intershell later 

awarded the project to another company for $219,000.

3. The judge's findings. In August, Intershell brought an 

action for breach of contract and violation of G. L. c. 93A.5 

GEM brought counterclaims for breach of contract, breach of the 

covenant of good faith and fair dealing, and violation of G. L. 

c. 93A. The matter proceeded to a jury-waived trial where Rome, 

Kenneth, and Jonathan testified. After hearing the parties' 

evidence, the judge allowed each party's motion for involuntary 

dismissal of the other's c. 93A claim.

Following the trial, the judge entered written findings on 

the parties' breach of contract claims and GEM's breach of the 

covenant of good faith and fair dealing claim, the relevant 

portions of which are summarized as follows. The judge found 

that the parties entered into a valid contact that required GEM 

5 Intershell also brought a fraud claim that was dismissed 

prior to trial. The parties make no argument about that claim 

on appeal.
7

to complete the project, and to remove its equipment and barge 

by June 1. The requirement that GEM obtain a building permit to 

complete the work by June 1 was a condition precedent to the 

parties' performance under the contract. Because that condition 

could not be met through no fault of the parties, the contract 

was unenforceable and neither party was in breach. Intershell 

also did not breach the implied covenant of good faith and fair 

dealing because Intershell acted in good faith and made 

expeditious attempts to obtain a new OOC.

As to the $100,000 that Intershell paid to GEM, the judge 

found that payment was a deposit that must be returned. 

Nonetheless, the judge found that GEM was entitled to be paid 

for the services it rendered under the doctrine of quantum 

meruit and that the fair and reasonable value of the work 

performed by GEM in preparation for the project was $5,000. In 

light of these findings, the judge ordered that GEM return 

$95,000 of the deposit to Intershell. The judge further ordered 

that "[n]o party is entitled to recover interest (because no 

monetary judgment shall enter) or their costs." Judgment then 

entered and this cross appeal followed.

Discussion. "We review a judge's findings of fact under 

the clearly erroneous standard and his conclusions of law de 

novo." Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 

503 (2011).
8

1. Condition precedent. GEM first argues that the judge's 

finding that the contract included a condition precedent was 

clear error. "A condition precedent defines an event which must 

occur before a contract becomes effective or before an 

obligation to perform arises under the contract." Massachusetts 

Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 45 (1991) 

(Massachusetts Mun.). A condition precedent may be expressly 

created by the parties, usually through the use of "[e]mphatic 

words" in the contract (citation omitted). Id. at 46. A 

condition precedent also may be implied in fact if "the intent 

of the parties to create one is clearly manifested in the 

contract as a whole." Id. See Restatement (Second) of 

Contracts § 226 comments a and c (1981); 8 T. Murray, Corbin on 

Contracts § 30.10 (rev. ed. 2018).

"Where, as here, the terms of an oral agreement are in 

dispute, the finder of fact determines the terms of any 

agreement 'from the conversation of the parties and their 

conduct'" (citation omitted). Twin Fires Inv., LLC v. Morgan 

Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005). "Where 

the dispute concerns a condition precedent, 'a court looks to 

the parties' intent to determine whether they have created a 

condition precedent. To ascertain intent, a court considers the 

words used by the parties, the agreement taken as a whole, and 

surrounding facts and circumstances'" (citation omitted). Id.
9

Here, the judge made explicit findings that at the time 

they entered into the agreement, the parties clearly understood 

and agreed to the following. First, that the work on the 

project could not be performed until GEM secured the building 

permit from the city. Second, that the project must be 

completed, and GEM's barge and equipment must be removed from 

the job site by June 1, as this deadline was an essential and 

material term of the parties' agreement. Although those terms 

were not reduced to writing, the judge's finding that the 

parties orally agreed to these terms was adequately supported by 

Rome's testimony at trial and the parties' written 

communications in evidence.6

The judge properly considered this evidence when 

determining that the parties intended the contract to contain a 

condition precedent. This was not clear error. See Tilo 

Roofing Co. v. Pellerin, 331 Mass. 743, 746 (1954) (parties 

orally agreed to condition precedent that written agreement not 

effective until defendants satisfied as to quality of 

plaintiff's work). See also Twin Fires Inv., LLC, 445 Mass. at 

6 The judge did not credit Kenneth's testimony that the June 

1 deadline was not firm and that GEM could complete the work in 

the fall. On that point, the judge instead credited Rome's 

testimony and other evidence to the contrary, and we defer to 

the judge's findings on that point. See Twin Fires Inv., LLC, 

445 Mass. at 421 (judge's findings resolving disputes over 

content of oral conversations entitled to deference).
10

421 (where parties' intent must be deduced from conflicting 

testimony, "we accord particular deference to the judge's 

findings"). Moreover, where that condition precedent was 

unfulfilled through no fault of the parties, the judge correctly 

concluded that the contract was unenforceable and thus neither 

party was in breach.7 See Massachusetts Mun., 411 Mass. at 45.

2. Order to return deposit. a. Deposit. GEM next argues 

that it was entitled to keep the $100,000 paid by Intershell at 

the January 25 meeting because it was a nonrefundable 

installment payment and not a deposit. In support, GEM points 

to written bid that sets forth "payment terms," which required 

the first of the three payments to be made on acceptance of the 

bid.

As an initial matter, we note that the bid discusses 

"payment terms" but not deposits or installments. Regardless, 

the judge found that the parties orally agreed to modify the 

payment terms at the January 25 meeting by reducing the amount 

due on acceptance. More importantly, the judge made a specific 

7 For the same reasons, GEM's claim that Intershell breached 

the covenant of good faith and fair dealing fails, see Uno 

Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 

385 (2004) (implied covenant of good faith and fair dealing does 

not "create rights and duties not otherwise provided for in the 

existing contractual relationship"), as does its related claim 

for a violation of G. L. c. 93A.
11

finding that the parties intended for the payment made at the 

January 25 meeting to be treated as a deposit.

Conflicting evidence was presented on the nature of the 

payment, but there was ample evidence to support the judge's 

finding of a deposit. For example, ten days before the January 

25 meeting, Rome informed Kenneth via text message, "I will go 

ahead with your offer and will be ready with a deposit early 

next week." Kenneth did not contest Rome's characterization of 

the deposit and simply responded, "Great I'll plan on seeing you 

next week." Moreover, Rome testified that the parties 

negotiated "a requirement of [a] deposit for $100,000." The 

nature of the payment turned on the parties' intent and we defer 

to the judge's finding on this point. See Twin Fires Inv., LLC, 

445 Mass. at 421. See also Rood v. Newberg, 48 Mass. App. Ct. 

185, 191 (1999) ("If the trial judge makes one of several 

possible choices of what facts are supported by the evidence, 

the judge's choice is not clearly erroneous" [citation 

omitted]).

b. Cost of GEM's preparation work. GEM next argues that 

the judge committed clear error by disregarding its evidence of 

the costs for its preparation work. However, the judge's 

finding that "the value of the labor and materials to GEM for 

bringing the barge and equipment to the job site, and for 

performing the preparation work was approximately $5,000 to 
12

$6,000," was amply supported by Jonathan's own testimony. 

Jonathan testified as to the work that GEM completed between 

February and April. When asked if he had "any estimate as to 

the costs incurred for that period of time," Jonathan responded, 

"I think in the tune of, direct out-of-pocket cost, for those 

specific items, was probably 5 or $6,000."

Although GEM also sought to recover additional costs from 

Intershell (including $50,000 for the two-month period that 

equipment owned by GEM was at the project site and $20,000 for 

business overhead), the evidence on these costs consisted only 

of brief testimony from Jonathan and a single-page spreadsheet 

that Jonathan created in preparation for GEM's bid on the 

project. The judge did not commit clear error in rejecting that 

minimal evidence of GEM's additional costs and instead 

determining that $5,000 constituted a fair and reasonable value 

for the services rendered.

c. Prejudgment interest. Intershell's sole argument on 

cross appeal is that it was entitled to prejudgment interest 

under G. L. c. 231, §§ 6C and 6H. GEM counters that no such 

interest is permitted because the judge's order to return the 

deposit did not constitute a damages award.

In relevant part, G. L. c. 231, § 6C, provides as follows:

"In all actions based on contractual obligations, upon a 

verdict, finding or order for judgment for pecuniary 

damages, interest shall be added by the clerk of the court 
13

to the amount of damages, at the contract rate, if 

established, or at the rate of twelve per cent per annum 

from the date of the breach or demand."

The statute also applies to quantum meruit damages. See Peabody 

N.E., Inc. v. Marshfield, 426 Mass. 436, 444-446 (1998). "[T]he 

policy underlying G. L. c. 231, § 6C, is that '[p]rejudgment 

interest serves to compensate [a party] for the loss of use of 

money wrongfully withheld'" (citation omitted). Henry v. 

Morris, 62 Mass. App. Ct. 714, 717-718 (2004).8

We turn then to whether the statute applies to the judge's 

order for the return of Intershell's deposit. The circumstances 

here are analogous to those in National Starch & Chem. Co. v. 

Greenberg, 61 Mass. App. Ct. 906, 906 (2004) (National Starch), 

which pertained to an agreement for the sale of commercial

property. The agreement allowed the seller to retain the 

buyer's deposit as liquidated damages if the buyer breached the 

agreement. See id. The agreement also included a mortgage 

contingency clause that provided that the agreement was "void 

without recourse to the parties" and the buyer was entitled to 

return of her deposit if the buyer provided timely written 

notice that she was unable to obtain financing. Id. The 

8 "General Laws c. 231, § 6H, is a 'catch-all interest 

provision,' that 'reflects the Legislature's intent that 

prejudgment interest always be added to an award of compensatory 

damages'" (citations omitted). Governo Law Firm LLC v. 

Bergeron, 487 Mass. 188, 198–199 (2021).
14

parties disputed whether they agreed to extend the deadline to 

comply with mortgage contingency clause, but ultimately the 

buyer did not obtain financing. See id. at 906-907. Both 

parties requested the deposit from the escrow agent and the 

agent refused to release the funds to either party. See id at 

907. The seller then brought an action to recover the deposit 

on grounds that the buyer was in breach. See id. The court 

concluded to the contrary, finding that the agreement was "void 

without recourse" because the buyer timely exercised her right 

under the mortgage contingency clause. Id. The court ordered 

the deposit to be returned to the buyer and awarded prejudgment 

interest under G. L. c. 231, §§ 6C and 6H. National Starch, 

supra. As to the interest, the court held that the buyer was 

entitled to prejudgment interest because the seller demanded the 

deposit from the escrow agent at the point in time when the 

agreement was void and that demand "did deprive the buyer of 

funds to which she was then rightfully entitled." Id. Cf. 

Henry, 62 Mass. App. Ct. at 718 (prejudgment interest not 

required under National Starch where buyer-plaintiffs did not 

seek return of deposit, only specific performance, and judge 

made no finding that deposit was wrongfully withheld).

Here, after it became clear that the permit would not issue 

in time for the work to be completed by the June 1 deadline, 

Intershell requested that GEM return its deposit less GEM's 
15

expenses for the preparation work. GEM refused to do so and 

took the position that it was "not contractually obligated to 

refund any portion of the first payment due to delays in the 

permit process." Ultimately, Intershell initiated this action 

to recover the $100,000 deposit. Although the judge did not 

explicitly find that the deposit was "wrongfully withheld," the 

facts as found suggest that threshold was met for the same 

reasons as in National Starch.

We recognize that G. L. c. 231, § 6C, sets forth different 

events that trigger the accrual of prejudgment interest -- i.e., 

the date of breach (of which there was none here), demand, or 

commencement of the action. When prejudgment interest begins to 

accrue is a question for the fact finder.9 See Aronovitz v. 

Fafard, 78 Mass. App. Ct. 1, 10 (2010). Accordingly, we remand 

the case for further consideration on the issue of prejudgment 

interest.

Conclusion. We vacate so much of the judgment entered 

April 6, 2023, as declined to award prejudgment interest. In 

all other respects, the judgment is affirmed. The case is 

9 GEM argues that a trial judge may adjust an award of 

prejudgment interest if it would "result in a windfall for 

plaintiffs amounting, in essence, to an award of punitive 

damages." Sterilite Corp. v. Continental Cas. Co., 397 Mass. 

837, 841 (1986). See Nissan Autos. of Marlborough, Inc. v. 

Glick, 62 Mass. App. Ct. 302, 311 (2004). However, the judge 

made no such finding here.
16

remanded for reconsideration of prejudgment interest and entry 

of an amended judgment consistent with this memorandum and 

order.

So ordered.

By the Court (Meade, 

Englander & Hodgens, JJ.10),

Clerk

Entered: October 4, 2024.

10 The panelists are listed in order of seniority.