Opinion
11-P-1172
03-12-2012
ROLAND PATENAUDE v. TIBBETTS ENGINEERING, INC.
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
In this review of a summary judgment, the material facts are undisputed. In 2004, defendant Tibbetts Engineering, Inc. (Tibbetts), prepared a definitive subdivision plan of land in Somerset owned by Pelletier. The plans and accompanying sheets contained highly specific detail of lot dimension, including lot size. The minimum size for a buildable lot pursuant to Somerset's zoning by-law was 20,000 square feet, and each of the subdivision's lots were shown on the plan to contain slightly more than 20,000 square feet. In other words, while it was a tight fit, the lots were buildable. Lot size was a significant factor to Pelletier, the town, and to plaintiff Roland Patenaude who, through a trust, had agreed to purchase the subdivision, subject to the town's approval of the plans, which it gave in March of 2004. The plaintiff, as trustee, purchased the lots and sold four of the lots to third parties. He retained lot 5 for the time being.
On September 14, 2006, or shortly thereafter, the owner of lot 4 notified the plaintiff that there was an error in his lot line which had been discovered by his independent surveyor, engaged to prepare an 'as built' plan. After conversation among the plaintiff, Tibbetts, and the lot 4 owner, Tibbetts prepared a corrected plan for the plaintiff on or about November 13, 2006. While there was no explicit agreement between the plaintiff and Tibbetts for that plan, it was prepared by Tibbetts for the plaintiff to correct what was perceived by all as a very minor discrepancy in the 2004 plan. The corrected plan made minor adjustments to a lot line for lot 4, and all five lots were shown to contain at least 20,000 square feet of land area, still a tight fit.
The minimum lot size compliance, was, of course, important to Patenaude. The significant value of each lot was buildability as a zoning compliant lot.
Sometime after Tibbetts had repaired the minor damage and produced the corrected plan, Patenaude, as trustee, relying upon the accuracy of those stamped plans, conveyed lot 5 to himself individually for purposes of development, that is, construction of a home. However, sometime in the year 2007, clearly within three years of the commencement of this action, it was determined that the Tibbetts corrected plan was also in error, and that lot 5 contained only 19,977 square feet, and was, as such, noncomplaint with zoning.
Abutters to lot 5 sent a notice of claimed boundary error to the Somerset planning board in 2007. A second corrected plan was recorded by the defendant on May 6, 2008. That is the first plan disclosing the harm: that lot 5 contained less than 20,000 square feet.
The plaintiff filed a negligence complaint against Tibbetts on November 13, 2009, and a Superior Court judge granted summary judgment for Tibbetts, concluding that the applicable statute of limitations, G. L. c. 260, § 2A, began to run on September 14, 2006, and that the possibilities of tolling based on fraudulent concealment (G. L. c. 260, § 12) or equitable estoppel did not apply.
On our independent review of the record we conclude the complaint was timely filed as a matter of law. The error on the original plan, as discovered by the surveyor for lot 4 in 2006, was minuscule in relationship to the interests of the parties, and irrelevant to the plaintiff's decision to purchase lot 5 from the trust. The parties believed that all five lots remained zoning compliant. The first notice of material error to the plaintiff did not arise until 2007, in connection with a proceeding initiated by the owner of an abutting lot. At that point the plaintiff first learned or should have learned of harmfully material error. The statute of limitations began to run only at that time, during 2007, so that the plaintiff's November, 2009, complaint was timely.
In this appeal from a summary judgment, we stand in the shoes of the judge and make an independent review of the same record. See Molly A. v. Commissioner of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267, 268 n.5 (2007). And, while the judge's decision does not relieve us of our need to review the record independently, the motion judge's decision often, as here, provides a helpful roadmap of the case and often, as here, makes our review more efficient.
We rely substantially upon the arguments and authorities on pages seven through nine of the plaintiff's brief. The plaintiff did not know, and reasonably could not have known, that he suffered appreciable harm until it was evidenced that lot 5 was zoning noncompliant.
Tibbetts, as it did below, argues alternatively that summary judgment was warranted on the basis of the economic loss doctrine as well as the failure of the plaintiff to make timely disclosure of the identity of an anticipated expert witness. We are not persuaded that either claim has merit. We concur in the judge's treatment of the economic loss issue and conclude that the economic loss doctrine does not bar the plaintiff's action. As to the witness disclosure claim, we are persuaded that no expert was necessary where, as here, the errors and issues were such that laypersons could rely upon common knowledge to recognize and infer negligence. In this regard we rely substantially upon the arguments and authorities on pages five and six of the plaintiff's reply brief.
The judgment is reversed and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Berry, Kafker & Mills, JJ.),