Opinion
No. 10–P–2222.
2012-10-25
Michael VASSILEV & another v. Alfred I. PRIEST, Jr. & others.
By the Court (RAPOZA, C.J., MILLS & GRAHAM, JJ.).
Justice Mills participated in the deliberation on this case prior to his retirement.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Michael and Tsveta Vassilev, purchased residential property from the defendants, Alfred and Dolores Priest. The plaintiffs filed a complaint against the defendants alleging breach of contract and breach of the implied covenant of good faith and fair dealing regarding the noncompliance of their septic system with Title 5. See 310 Code Mass. Regs. §§ 15.000 et seq. (1995). A judge of the Superior Court granted the defendants' motion for summary judgment and the plaintiffs appeal. The plaintiffs argue that the judge erred as a matter of law in granting the defendants' motion where (1) there was evidence supporting their claim that the defendants knew or should have known that the Title V certification (certification) falsely stated that the septic system was in compliance; (2) during litigation, the defendants concealed that they were acquaintances of Robert McCart, who provided the certification; (3) count III of the complaint, alleging fraudulent misrepresentation, did not raise a claim solely against McCart; and (4) there was evidence of fraud that made the fraudulent misrepresentation exception to the merger doctrine apply to the breach of contract claim. For the reasons we shall discuss, we agree that summary judgment appropriately was allowed in favor of the defendants.
Discussion. Our review of a grant of summary judgment is to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Miller v. Mooney, 431 Mass. 57, 60 (2000), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Entry of summary judgment will be upheld when there are no genuine issues of material fact and the “nonmoving party has no reasonable expectation of proving an essential element of its case.” Miller, supra. The nonmoving party's failure to prove an essential element of his case “renders all other facts immaterial” and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Knowledge of alleged false statements. The essence of the plaintiffs' argument is that there was sufficient evidence in the record to support their claim that the defendants knew or should have known that the septic system was not in compliance with Title V because an in-ground swimming pool was located over an abandoned leaching field. The plaintiffs further allege that the defendants conspired with McCart with respect to his allegedly false certification. Specifically, they argue that (1) Alfred was a Massachusetts certified real estate salesperson, who should have been aware of the Title V requirements; (2) the existence of two different certifications authored by McCart indicated that the defendants knew the septic system did not comply with Title V and that they conspired with McCart to conceal that fact; and (3) during litigation, the defendants concealed that they were acquaintances of McCart.
These assertions owe more to speculation than to the record before us. The plaintiffs have not demonstrated that they have a reasonable expectation of proving the essential elements of their case against the defendants. We start with the assertion that Alfred, because he was certified as a real estate salesperson, should have realized the falsity of McCart's certification that the septic system was in compliance with Title V. Alfred's status as a real estate salesperson, however, did not support the inference that he had a working knowledge of Title V beyond knowing that a Title V certification, which he did obtain, was required to sell a property. Even were we to assume that as a real estate salesperson he was aware that Title V prohibits certain structures from being located over a leaching field, there is nothing in the summary judgment record to indicate that his knowledge of the conditions on his property went beyond what was on the Title V certification that McCart provided. Indeed, the certification that was filed with the town and provided to the defendants did not indicate that such a structure, in this case an in-ground pool, was located over the leaching field in question.
The plaintiffs next point to the fact that McCart apparently drafted two Title V certifications that were identical, but for the fact that one indicated the location of the pool on the property, and the other did not. McCart filed the latter version with the town, from which the plaintiffs conclude that the defendants conspired with McCart to conceal the fact that the property was not in compliance with Title V. Based on the record before us, we view the allegation that McCart and the defendants conspired to generate a fraudulent certification as mere speculation. This is especially the case absent any evidence that the defendants were aware that McCart had drafted another certification that showed the location of the pool.
Finally, the plaintiffs assert that McCart and Alfred had a “friendly relationship,” apparently based on the fact that they both played in the same men's softball league. The plaintiffs acknowledge in their brief that “a friendly relationship does not create a reasonable inference of knowledge of the alleged misrepresentation.” The plaintiffs go on, however, to assert that the defendants sought to conceal this relationship during the course of discovery, and conclude that there is a “reasonable inference that there is subterfuge at foot [ sic ].” Our review of the references to the record supplied by the plaintiffs do not support their assertion that the defendants sought to conceal any prior relationship that they may have had with McCart. We are thus left with “bare assertions and conclusions ... [that] are not enough to withstand a well-pleaded motion for summary judgment.” Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 696 (1993).
Count III. The plaintiffs assert that the judge erred by deciding that count III of the complaint raised only a claim against McCart and not against the defendants. The judge correctly stated that “[c]ount III explicitly alleges that McCart made the misrepresentations with the intent that the [defendants] (and the plaintiffs) rely on them.” On its face, the wording of count III cannot be construed to assert a claim against the defendants. The plaintiffs made much of the fact that the parenthetical caption at the beginning of count III did not indicate the specific defendants to which the count applied, as comparable captions did with the other counts. That fact, however, does not support the inference, now urged by the plaintiffs, that the fraudulent misrepresentation claim applied to all the defendants named in the complaint.
Merger doctrine. The plaintiffs argue that the judge erred in concluding that the merger doctrine applied to the real estate transaction. However, as the judge determined, because there was no evidence of fraud, deceit, or misrepresentation on the part of the defendants, the purchase and sale agreement merged with the deed, which was accepted by the plaintiffs, thus discharging the defendants of every agreement and obligation contained therein, except those specified in the deed itself. See Kelley v. Iantosca, 78 Mass.App.Ct. 147, 152 (2010).
Judgment affirmed.