WAYNE COMPANY INC v. CITY OF BOSTON (2026)

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 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 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).

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 contract. See Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 641 (2013).

Judgment affirmed.

FOOTNOTES

1.   The complaint does not specify the nature of the services, but the company refers to “demolition” services in its brief.

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).

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.