Opinion
11-P-911
04-05-2012
MATTEO GALLO v. JAMES E. CORSANO, executor, & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court judge allowed defendant James E. Corsano's motion to dismiss and defendant Alfred Pace's motion for judgment on the pleadings, and thus dismissed plaintiff Matteo Gallo's complaint for contribution under G. L. c. 231B. On appeal, Gallo claims the judge erred. We affirm, but for reasons different from those relied upon by the judge. See Hawthorne's, Inc. v. Warrenton Realty, Inc., 414 Mass. 200, 210 n.6 (1993), and cases cited.
At some unknown time prior to June 2, 1971, Wedgewood Arms, Inc. (Wedgewood), the owner of an apartment building located at 216 Main Street in Woburn, caused the walls of various units in the building to be painted with lead paint. Vincent E. Corsano (Corsano) and Alfred Pace were officers and principals of Wedgewood.
On June 2, 1971, Wedgewood sold the building to plaintiff Matteo Gallo. At that time, Alice Tucker (Alice) was a tenant of one of the units and was pregnant. On October 28, 1971, Alice gave birth to a son, Jose Tucker (Jose), who lived in the unit until he was ten years old. On October 19, 1983, Wedgewood was dissolved as a corporation by the Secretary of the Commonwealth under G. L. c. 156B, § 101.
On November 15, 1971, the Legislature enacted 'An Act Providing for a Comprehensive Program of Lead Paint Poisoning Prevention and Control,' codified in part as G. L. c. 111, §§ 190 et seq., which became effective on January 1, 1973. St. 1971, c. 1081, §§ 1, 3. Section 199 provides for strict liability for an owner's noncompliance with statutory requirements for the removal of materials containing dangerous levels of lead. Smola v. Higgins, 42 Mass. App. Ct. 724, 725 n.4 (1997). Bellemare v. Clermont, 69 Mass. App. Ct. 566, 569 (2007).
On August 17, 2006, Jose brought an action against Gallo pursuant to G. L. c. 111, §§ 190 et seq., and also alleged claims of interference with quiet enjoyment under G. L. c. 186, § 14; breach of the warranty of habitability; negligence; and violation of G. L. c. 93A. On April 22, 2009, after mediation, the matter was settled for $100,000. Neither Corsano nor Pace was aware that Jose Tucker had brought suit against Gallo or that the matter had been settled.
On August 27, 2009, Gallo commenced an action for contribution against Corsano's executor and Pace, which essentially claimed that Gallo was entitled to contribution based on Corsano and Pace's application of lead paint to Alice's apartment, failure to delead the apartment, failure to warn Alice when she became pregnant, and failure to inform Gallo of the lead paint when he purchased the property. After a hearing, the judge allowed Corsano's and Pace's motions for dismissal, concluding that the lead paint law did not apply insofar as it was not in effect at the time the building was sold to Gallo and was not retroactive; Jose was born after the building was sold to Gallo and before the effective date of the statute, and thus neither of the defendants was an 'owner' of the property while a child under the age of six resided there. See Underwood v. Risman, 414 Mass. 96, 99 (1993). We agree the motions were properly allowed, but our reasoning differs from the judge's.
To the extent that Gallo brought allegations under G. L. c. 93A (nondisclosure to Alice or to himself), the judge determined that neither established a basis for recovery against the defendants as joint tortfeasors under G. L. c. 231B.
As current owner of the building, Gallo claims a right of contribution against other parties potentially at fault, including the defendants as prior owners. See Ankiewicz v. Kinder, 408 Mass. 792, 795-796 (1990) (stating in dictum that owner could bring claims for contribution against joint tortfeasors, such as 'negligent building inspectors, lead-based paint manufacturers, and paint removal contractors'). Assuming, without deciding, that on these facts Gallo is correct, the prior owner of the premises from which Gallo obtained title was Wedgewood, which was dissolved in 1983. Pursuant to G. L. c. 156B, § 102, as amended through St. 1987, c. 206, Wedgewood's corporate existence continued for three years after its dissolution
So far as it appears, Gallo's complaint was brought within one year after payment of the settlement to Jose, and thus compliant with G. L. c. 231B, § 3(d).
'for the purpose of prosecuting and defending suits by or against it and of enabling it gradually to settle and close its affairs, to dispose of and convey its property to any person and to make distributions to its stockholders of any assets remaining after the payment of its debts and obligations . . . .'
Upon the expiration of this three-year period, Wedgewood ceased to exist even for that limited purpose, and any claim Gallo may have had for contribution against Wedgewood is thus barred. See Alexander v. Casco Music Sys., Inc., 3 Mass. App. Ct. 716, 716 (1975). To the extent Gallo suggests that he may bring a claim for contribution against Corsano or Pace (or the estate of either), he neither cites to any authority nor does he offer any reasoned argument as to why that should be so. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Judgment affirmed.
By the Court (Mills, Meade & Rubin, JJ.),