Opinion
No. 11–P–1868.
2012-10-17
Roland Gilbert ALLENBY v. Edward DEWITT.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Roland Gilbert Allenby, appeals from a judgment entered in the Superior Court on his complaint for legal malpractice. On appeal, he argues that the trial judge erred in (1) offsetting the $300,000 trust fund from the plaintiff's damages stemming from the passive appreciation of the Oyster Pond residence; (2) finding comparative negligence on the part of the plaintiff; (3) failing to find a violation of G.L. c. 93A; and (4) awarding costs pursuant to Mass.R.Civ.P. 68, 365 Mass. 835 (1974), as the rule is unconstitutional. The defendant cross-appeals, arguing primarily that the statute of limitations precluded suit.
We agree with the statute of limitations assertion.
The defendant also maintains that (1) the trial judge erred in ruling that the plaintiff had established causation and damages; (2) the plaintiff failed to establish that his former wife would have agreed to the antenuptial agreement he sought; and (3) the judge erred in awarding costs for mediation.
Statute of limitations. The three-year statute of limitations contained in G.L. c. 260, § 4, begins to run at the point when a plaintiff knows or has reason to know that he has suffered appreciable harm. Appreciable harm has been defined as “ ‘injury, loss or detriment’ that is ‘capable of being measured or perceived.’ “ Kennedy v. Goffstein, 62 Mass.App.Ct. 230, 232–233 (2004), quoting from Black's Law Dictionary, 97, 722 (7th ed.1999). Each case is different and must be considered on its own facts and circumstances. Ibid.
The plaintiff contends that the three-year limitation period did not begin to run until the Probate and Family Court judge ruled, in December, 2004, that the antenuptial agreement was invalid. In some cases, we have held that the statute does not begin to run until a ruling or judgment enters. See Eck v. Kellem, 51 Mass.App.Ct. 850, 853–856 (2001). That is not the situation in the instant case.
The record here clearly shows that the harm occurred, and the plaintiff's knowledge of that harm arose, well before the ruling in the divorce case. Notably, the harm occured in November, 1998, when the quitclaim deed transferred the plaintiff's property to his then-wife, Ruth Ann Sykes. It was confirmed when the tax collector's office advised him in late 1998 that Sykes owned the property.
The plaintiff was subsequently evicted from the property on thirteen occasions.
Upon learning that his property had been transferred, the plaintiff contacted the defendant to draft a new deed to transfer the property back to the plaintiff. Sykes refused to sign the new deed, and the plaintiff subsequently met with various other attorneys who indicated that indeed he had a problem.
The harm suffered by the plaintiff was actual, not merely theoretical.
The plaintiff testified that on those occasions when the police removed him from the house, they had been informed by Sykes that she owned the house.
With regard to the antenuptial agreement, the plaintiff was on notice, at the outset, after speaking with the defendant, that the agreement was defective and unenforceable. In response, the plaintiff indicated that the problem would be fixed upon his return from Las Vegas. In addition, Sykes shared with the plaintiff Attorney Mead's letter of April 9, 1999, which stated that the antenuptial agreement was unenforceable. Lastly, Attorney Farrell reviewed the antenuptial agreement in 2002 and advised the plaintiff “in no uncertain terms” that the plaintiff “was not covered from A–Z” and that the agreement was faulty. The plaintiff was thus on notice that he had suffered harm.
We have examined the remaining arguments of the parties and find them to be without merit.
The corrected amended judgment is reversed, and the matter is remanded for entry of a new judgment consistent with this memorandum and order.
Given our decision, any award of costs by the judge below to the plaintiff as the prevailing party must be vacated. Conversely, as the now-prevailing party, the defendant is entitled to his costs.
So ordered.