Opinion
14-P-725
09-24-2015
SARAH ALFORD v. CAPITOL REALTY GROUP, INC., & others.
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, Sarah Alford, appeals from paragraphs two, four, six, eight, and eleven of a judgment insofar as it dismisses her claims against Capitol Realty Group, Inc. (Capitol), and Linda Poldoian, Anne Coyle, and Melissa DiFiore, as trustees of the 27 Anderson Street Condominium Trust (trust), pursuant to an order allowing summary judgment. The following claims are before us on appeal: (1) negligence against Capitol and the trust; (2) nuisance against Capitol and the trust; (3) breach of contract against Capitol and the trust; and (4) violation of G. L. c. 93A against Capitol. We affirm in part and reverse in part.
Alford's claims against Linda Poldoian, individually, were dismissed pursuant to a stipulation of dismissal that was incorporated into the judgment in paragraphs one, three, five, seven, and ten. On appeal, Poldoian is only a defendant insofar as she is a trustee of the 27 Anderson Street Condominium Trust.
Paragraph four of the judgment dismisses the waste claim against Capitol and the trust. In her brief, Alford concedes that the dismissal of the waste claim was appropriate.
The second amended complaint contains a count alleging conversion and breach of fiduciary duty against Capitol. The parties stipulated to the dismissal of that count but also stipulated that Alford preserved her right to use the facts alleged to support her conversion claim in pursuing her claim under G. L. c. 93A. That stipulation is incorporated into paragraph nine of the judgement.
Factual background. The following facts are taken from the record and are undisputed, unless otherwise indicated. Alford is the owner of unit 6 at 27 Anderson Street, a residential condominium building, in Boston. Capitol provides property management services to the trust. In December of 2005, Alford was first informed of a leak in the bathroom of her condominium by her tenant. Some investigation ensued to determine the source of the leak. There was a question whether the leak was attributable to a Jacuzzi tub in a unit owned by Poldoian, which is above Alford's unit, or from a common area between the two floors. In March of 2006 it was determined that the source of the leak was the Jacuzzi tub in the Poldoian unit. The leak caused damage to the ceiling in the bathroom of Alford's unit.
There seems to be no question that in May, 2007, Capitol received a check to cover the cost of the repairs to the ceiling of unit 6. From the record it is not clear exactly when Capitol offered Alford her proceeds from the insurance funds or whether she refused them. It is undisputed that Capitol forwarded a check to Alford in the amount of $4,418.39 in December of 2008.
Discussion. It is well settled that we review a decision to grant summary judgment de novo. See, e.g., Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). When reviewing a motion for summary judgment, the evidence is viewed in "the light most favorable to the nonmoving party." Ryan v. Hughes-Ortiz, 81 Mass. App. Ct. 90, 93 (2012), quoting from Humphrey v. Byron, 447 Mass. 322, 325 (2006).
1. Claims for negligence, nuisance, and breach of contract. Several of the alleged claims fail as a matter of law. First, Alford sets forth a negligence claim against Capitol and the trust stating that they "breached their duty to the plaintiff by acts and omissions including but not limited [to] failing to take due care to promptly and completely locate and repair the leak that was the proximate cause of damage to the plaintiff's Unit." However, Alford specifically admitted that "the source of the leak was the Jacuzzi tub in the Poldoian unit." Therefore, Capitol and the trust did not owe Alford the duty she pleaded. The claim is not sustainable, and summary judgment was properly granted on this count.
Alford's nuisance count is similarly flawed. As with the negligence count, here the fact that the source of the problem was the Jacuzzi tub in Poldoian's unit defeats the claim. Capitol and the trust did not intentionally create or maintain the condition of which Alford complains. "Liability for the maintenance of a nuisance, premised on allegations of interference with the use and enjoyment of land, 'should be based upon a determination that the interference is intentional and unreasonable or results from conduct which is negligent, reckless or ultrahazardous.'" Morrissey v. New England Deaconess Assn. -- Abundant Life Communities, Inc., 458 Mass. 580, 588 n.15 (2010), quoting from Ted's Master Serv., Inc. v. Farina Bros. Co., 343 Mass. 307, 312 (1961). In addition, there is no indication of conduct that can be characterized as "negligent, reckless, or ultrahazardous." The nuisance count was appropriately dismissed.
As to her breach of contract claim, Alford claims that she is the intended third-party beneficiary of the management agreement between Capitol and the trust. She has not identified anything that would make her the intended beneficiary of the agreement as a whole. Nor has she established that she was the intended beneficiary of any specific contractual obligation Capitol or the trust had with respect to leaks originating from within another resident's unit. "Under Massachusetts law, a contract does not confer third-party beneficiary status unless the 'language and circumstances of the contract' show that the parties to the contract 'clear[ly] and definite[ly]' intended the beneficiary to benefit from the promised performance." Doherty v. Admiral's Flagship Condominium Trust, 80 Mass. App. Ct. 104, 111 (2011), quoting from Cumis Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 466 (2009). As in Doherty, here Alford points to "no additional facts regarding the defendants' intent." Doherty, supra. Moreover, even were we to assume that Alford was a third-party beneficiary of some aspect of the agreement, the summary judgment record did not raise an issue of fact sufficient to go to the jury with respect to its breach. Summary judgment was appropriate on that count.
In her second amended complaint Alford's breach of contract count includes a claim that the trust violated § 5.3 of the declaration of trust document. This claim for breach of contract is not addressed in Alford's brief and is waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). In any event, the declaration of trust does not appear to be a contract.
2. Claim pursuant to G. L. c. 93A. The final claim for our consideration, that is, Alford's c. 93A count against Capitol, is unlike the previous claims because it presents material factual issues. As previously noted, see note 5, supra, in the stipulation of dismissal of Alford's conversion count, it was agreed that Alford could present the same evidence that she would have on the conversion count in support of her c. 93A claim. Specifically Alford alleges that Capitol received insurance proceeds that were designated for the repairs to her apartment in May of 2007, and that she was not advised of that receipt until October of that year. Alford further alleges that she made a verbal request for payment of the insurance proceeds in January of 2008 and that "[c]ounsel for Capitol stated that she would not give the plaintiff these funds unless she dismissed all claims against Capitol."
In a letter to Miller dated February 14, 2008, Alford states that in November of 2007 she made a demand for her portion of the insurance proceeds.
On the other hand, Capitol asserts that Alford refused the insurance proceeds when they were initially offered and cites to a letter that was written by counsel for Capitol (and Miller) on March 12, 2008. The letter states that Alford was advised that Capitol had received a check, but she refused it. That letter was attached to Alford's original complaint. For purposes of summary judgment, that letter does not eliminate a question of fact. On the basis of the record before us, there are issues of fact about when Capitol notified Alford that it had received the insurance proceeds and offered to release to Alford the proceeds designated for her, and whether Alford refused them.
Further, Alford contends that once she learned of the payment of the insurance proceeds to Capitol, Capitol continued to withhold payment because Alford would not sign a release. Alford contends that she requested payment in January of 2008 and that payment was not made until December of 2008. Alford argues that this conduct constituted an unfair practice in violation of c. 93A.
In its brief, Capitol characterizes the claim that the withholding of the funds on the condition that Alford execute a full release as a "red herring." Capitol further states that "[a]ny time there is a disputed claim, it is standard procedure to obtain a release from the claimant in exchange for payment." Capitol does not support this assertion about "standard procedure" with either an affidavit or case law. Therefore, we cannot assume that under these circumstances, this is standard practice. There is a question of fact whether Capitol wrongfully withheld payment of the insurance proceeds from Alford.
It appears that the payment must have been made without a release.
We express no opinion on the ultimate outcome of this case, but at this juncture there are issues of fact that preclude the allowance of summary judgment as to Capitol on the c. 93A claim.
Conclusion. Paragraph six of the judgment dismissing the count against Capitol pursuant to G. L. c. 93A is vacated, and that count is remanded to the Superior Court for further proceedings. Paragraphs two, four, eight, and eleven of the judgement are affirmed.
So ordered.
By the Court (Vuono, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 24, 2015.