Opinion
16-P-1088
04-25-2017
Didier J. LELANNIC & another v. Gail L. SMITH& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiffs Didier J. and Catherine S. LeLannic brought this action against defendants Gail L. Smith and her surveying company, North Shore Survey Corp. (collectively, Smith), alleging (1) breach of contract and fiduciary duty, (2) fraud and intentional misrepresentation, and (3) negligence. A Superior Court judge allowed summary judgment and dismissed the first amended complaint. Because we conclude that all of the LeLannics' claims were time-barred, we affirm the judgment. See Doe v. Harbor Schs., Inc., 446 Mass. 245, 247-248 (2006).
As the motion judge noted, the reference to a "breach of contract" in the first count was unsupported by any factual allegations. No contract claim is pursued in this appeal.
Background. We summarize the relevant facts in the light most favorable to the LeLannics. See Miller v. Cotter, 448 Mass. 671, 676 (2007). The LeLannics, California residents, purchased a dilapidated property in Marblehead, intending to build a home for their retirement. On the advice of their real estate agent, the LeLannics retained Smith, a licensed land surveyor. At that time, Smith had been providing surveying services for twenty years to several members of the Rockett family, who owned an abutting apartment complex managed by Yacht Town Realty Trust (Yacht Town).
Smith was initially unaware that the Rocketts owned an abutting property. However, she discovered the connection in the course of her surveying work. She also realized that the interests of Yacht Town conflicted with those of the LeLannics. She did not, however, disclose her relationship with the Rocketts to the LeLannics.
Yacht Town had placed a trash stockade on a triangular portion of land that the LeLannics believed, based upon their deed description, belonged to them. Ownership of the disputed land was important to the LeLannics' building plans.
In her work for the LeLannics, Smith interpreted the survey data in a manner favorable to Yacht Town (and to two other abutters), concluding that the LeLannics did not own the portion of the parcel in dispute. The LeLannics' lot, as surveyed by Smith, had insufficient square footage and setback to qualify as conforming under the town by-laws, a prerequisite to obtaining a building permit.
Upon receipt of Smith's final survey around April 15, 2009, the LeLannics immediately disputed the accuracy of the plan, told Smith her findings were mistaken, and hired another firm, Hayes Engineering, Inc. (Hayes), to resurvey the property. Despite efforts by the LeLannics and their real estate attorney to persuade Smith that her survey was incorrect, Smith stood by her conclusion.
In May, 2009, Hayes concluded that the LeLannics owned the disputed land and produced a plan depicting the lot as conforming. By July, 2009, the LeLannics had fired Smith, compromised her bill, and considered the relationship terminated.
The LeLannics took action to fence the disputed land, which prompted Yacht Town to call the police. At the Rocketts' request, Smith agreed to provide surveying services and to support Yacht Town's interests in a trespass action filed against the LeLannics on July 14, 2010. On the same date, Smith signed an affidavit supporting Yacht Town's claims, which relied on her 2009 survey and plan commissioned by the LeLannics. The LeLannics received notice of the complaint and Smith's attached affidavit at some point before they filed their answer with the court on September 15, 2010. Ultimately, the LeLannic's prevailed in the trespass action after a bench trial.
On May 9, 2014, the LeLannics brought suit against Smith alleging breach of fiduciary duty, fraud, and negligence. They alleged that Smith failed to disclose her relationship with the Rocketts at the beginning of the engagement; failed to prepare an adequate plan of land in violation of her professional duties; fraudulently misrepresented the boundary lines; refused to verify the 1978 subdivision and survey lines; accepted engagements after her termination that presented a conflict of interest; and assisted the Rocketts in the prosecution of the trespass action. The LeLannics sought damages in the form of the legal fees and expenses related to defending the trespass action, and other expenses from the delayed sale of their property.
Discussion. Smith contends, among other arguments, that all of the LeLannics' claims are time barred because they were filed after the applicable limitations period expired. "[A]ctions of tort[ ] [and] actions of contract to recover for personal injuries[ ] ... shall be commenced only within three years next after the cause of action accrues." G. L. c. 260, § 2A, as amended by St. 1973, c. 777, § 1. The LeLannics do not dispute that because all of their claims sound in tort, the three-year statute of limitations set forth in § 2A applies. The dispute lies in when the limitation period began to run.
It is well established that a cause of action for breach of fiduciary duty begins to run when the plaintiff first acquired actual knowledge of injury due to the fiduciary's wrongful conduct. Doe, 446 Mass. at 254-255. Under the less forgiving discovery rule, negligence and fraud claims accrue when the plaintiff knew or should have known that the plaintiff had sustained injury cause by a defendant's conduct. See Pagliuca v. Boston, 35 Mass. App. Ct. 820, 824 (1994) ; Massachusetts Hous. Opportunities Corp. v. Whitman & Bingham Assocs., P.C., 83 Mass. App. Ct. 325, 328 (2013).
Here, Smith's conflict of interest surfaced, at the very latest, during the litigation of Yacht Town's trespass action against the LeLannics which commenced on July 14, 2010. The trespass complaint, which the LeLannics acknowledge receiving by the fall of 2010, alleges that the LeLannics commissioned Smith to conduct a survey for them in March of 2009, in connection with their desire to expand their square footage and property boundaries. In Smith's affidavit, referenced in the complaint, she admitted surveying the land and preparing a plan for the LeLannics setting forth the boundaries of the LeLannics' parcel. She also admitted that on July 7, 2010, she was contacted by Yacht Town to visit the property and offer an opinion regarding the boundary between Yacht Town and her former clients, the LeLannics. Smith did so and relied on the 2009 plan she prepared for the LeLannics to offer an opinion that was contrary to the LeLannics' interests. Smith concluded "that the newly constructed fence [was] on Yacht Town LLC's property and not the LeLannics' property." Thus, Smith's conflict of interest, the source of the LeLannics' claims in the instant action, was known to them at least by the time they received and read the complaint and Smith's accompanying affidavit.
The LeLannics contend that it was Smith's concealment of her conflict of interest in 2009 that began a chain of events causing them injury, and that they did not learn the depth and duration of Smith's conflict of interest until she testified in the Yacht Town trespass trial on September 10, 2012. According to the LeLannics, the statute of limitations did not begin to run until that date. We are not persuaded.
The essence of the LeLannics' complaint is that Smith's surveying work for them was flawed because of her loyalty to other clients, the Rocketts. That divided loyalty came to a head when Yacht Town, with expert support from Smith, filed the trespass action against the LeLannics on July 14, 2010. Accordingly, we agree with Smith that the LeLannics had actual notice of Smith's conflict of interest by September 15, 2010, when they filed with the court their answer in the trespass action. To comply with the three-year limitations period, the LeLannics' complaint in this action therefore would have to have been filed by September 15, 2013. Because the complaint was not filed until May 9, 2014, their claims are barred by the statute of limitations.
In light of our conclusion that all of the LeLannics' claims are time barred, we do not reach their other claims of error or comment on Smith's apparent conflict of interest.
Judgment affirmed.