Summary
concluding that the gist of action was a tort and thus was barred by the statute of limitations
Summary of this case from Solfisburg v. Glenco, Inc.Opinion
15-P-247
12-04-2015
SUSAN ROBINSON-SIMMONS v. G. DAVID HALL & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a summary judgment entered in the Superior Court. We affirm.
On November 7, 2006, Bernard Tolassi prepared an appraisal report for Hampton Bay Mortgage Co., Inc., on a two-family house in Cambridge which listed the market value of the property as $445,000. The report was cosigned as supervisory appraiser by defendant G. David Hall, the principal of defendant Hall Appraisal of Real Estate LLC (Hall Appraisal). The plaintiff paid Tolassi for the report. On December 1, 2006, the plaintiff purchased the property for $413,000. The plaintiff testified at her deposition that the appraisal report may have been in the folder given to her at the closing, but she did not look at the content of the folder until 2008. The sale was financed by a mortgage from Wells Fargo Bank, N.A. (Wells Fargo). Wells Fargo subsequently foreclosed on the property and sold it on November 14, 2008, for $276,000. The plaintiff knew of the foreclosure and the sale at the time.
On April 17, 2012, the plaintiff filed a complaint against Hall, Hall Appraisal, and Tolassi alleging that she relied on the appraisal report when she bought the property and that the property was not worth the $413,000 sale price. She set out counts for fraud, wilful and negligent misrepresentation, negligence, and breach of contract. After a hearing on August 22, 2013, a judge of the Superior Court granted summary judgment in favor of the Hall defendants, ruling that the plaintiff's complaint was barred by the statute of limitations. The judge denied the plaintiff's subsequent motions for reconsideration and to amend. Judgment then entered in favor of the Hall defendants.
We note that the plaintiff's claim that she relied on the appraisal at the time of her purchase stands in contrast to her contention that she was unaware of it, or its contents, until years later.
The judge also concluded that the plaintiff would be unable to prove that the appraisal report caused her alleged loss because she was not prepared to offer expert testimony on the subject.
Prior to judgment, a stipulation of dismissal entered as to the plaintiff's claims against Tolassi.
1. Summary judgment. The plaintiff alleges that she "became aware of all the facts involving the appraisal in 2010, upon review of her file in an attempt to save her home and modify her loan with Wells Fargo. [She] received a 'Release Deed' for [the property] in April 2010 and began to investigate." Accordingly, she claims, the statute of limitations on her claims against the defendants did not begin to run until April of 2010. We disagree. Under the discovery rule, a statute of limitations "begins to run when a [plaintiff] 'knows or reasonably should know that he or she has sustained appreciable harm as a result of the [defendant's] conduct.'" Lyons v. Nutt, 436 Mass. 244, 247 (2002) (citation omitted). Here, the plaintiff knew no later than November of 2008 that she bought the house for $413,000 in 2006 and that it was sold at a foreclosure sale for $276,000 in 2008. She knew by then of the difference in the two prices and reasonably should have known of the market value listed in the appraiser's report which she had in her possession since December 1, 2006. Because the plaintiff did not file her tort claims by November of 2011, her claims are barred by the three-year statute of limitations. See G. L. c. 260, §§ 2A, 4.
At her deposition, the plaintiff testified that her claim that the 2006 appraisal amount was false was based on the 2008 foreclosure sale price. We observe, again (see note 2, supra), that the plaintiff's claim that she relied on the appraisal when she purchased the property stands in contrast to her contention that she was unaware of the appraisal until 2010.
We need not decide whether it is § 2A or § 4 that applies.
The plaintiff argues that even if her tort claims are barred, her contract claim is not. The plaintiff alleged in her contract count that the defendants provided her with a false appraisal report, that the property was not worth $413,000, and that she was damaged "[a]s a result of the fraud and misrepresentations." Looking at the gist of the action, which is negligence or fraud by the appraisers, we conclude that the action is based in tort. Massachusetts Hous. Opportunities Corp. v. Whitman & Bingham Assocs., P.C., 83 Mass. App. Ct. 325, 330 (2013) (the plaintiff may not "escape the consequences of a . . . statute of limitations on tort actions merely by labelling the claim as contractual. The court must look to the 'gist of the action'" [citation omitted]). Here, the count labeled as a claim of breach of contract is, in substance, a claim of tort and is, therefore, barred by the statute of limitations.
Even if we were to consider the contract claim on its merits, we would conclude, as did the motion judge, that the plaintiff would be unable to prove that her damages were caused by the defendants without expert testimony (which she did not furnish).
2. Motion for reconsideration. After the judge allowed the Hall defendants' motions for summary judgment, the plaintiff moved for reconsideration. The judge denied the motion. A judge's denial of a motion for reconsideration is one within his discretion. See Commissioner of Rev. v. Comcast Corp., 453 Mass. 293, 312-313 (2009); Care & Protection of Georgette, 54 Mass. App. Ct. 778, 787-788 (2002). The plaintiff's claim in her motion for reconsideration that a six-year statute of limitations was applicable to her action was previously made by her at the summary judgment stage and rejected by the judge. There was no error.
We also note that, to the extent the plaintiff relies on the affidavit of a sales agent which was attached to her motion for reconsideration in support of her claim of damages, the information in that affidavit did not constitute newly discovered evidence and the plaintiff offered no explanation why she did not produce it in opposition to the Hall defendants' summary judgment motions. See Commissioner of Rev. v. Comcast Corp., 453 Mass. at 312-313.
3. Motion to amend. After the discovery deadline passed and the judge granted summary judgment for the Hall defendants, the plaintiff moved to amend the complaint to add a count against all defendants under G. L. c. 93A. The judge did not abuse his discretion in denying the motion because, as he wrote, the motion was untimely and would likely result in prejudice to the defendants. See Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 292-293 (1977).
In any event, the proposed claims under c. 93A would have been futile as the plaintiff did not timely send demand letters to the defendants.
Judgment affirmed.
By the Court (Green, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 4, 2015.