Opinion
18-P-1494
12-17-2019
Nancy CARRIER & another v. PHELAN ENGINEERING, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Nancy Carrier and Robert Carrier, appeal from a summary judgment that was entered in favor of the defendant, Phelan Engineering, LLC (Phelan). We affirm.
Background. The following material facts are undisputed. In July 2011, the plaintiffs hired Circle B, Inc. (Circle B) to construct a horse barn and riding arena on their property in Southampton. Circle B, through its president Tom Brownell, drafted plans for the arena that were stamped by Paul A. Phelan, Jr., of Phelan. Under Phelan's stamp is the following "Engineer Disclaimer":
"The engineer's stamp on this drawing qualifies the structural design only and assumes that the foundation footing bearing surface is undisturbed, or properly compacted, non-organic soil with a minimum bearing allowable of 3000 PSF and that all construction will be performed by qualified craftsmen in accordance with the 8th edition of the Massachusetts Building Code. On site verification of construction is required by the engineer of record or qualified agent during demolition and construction to verify assumptions are correct and that construction is properly performed. It is the contractor's or owner's responsibility to assure that timely notification of the project progress is provided so that adequate on site engineer presence is obtained."
Construction of the arena began on September 28, 2011. Around that time, Phelan's engineer told Robert that he would not be conducting site visits to monitor construction for compliance with the Massachusetts Building Code, 780 Code Mass. Regs. §§ 110, et seq. (code).
We refer to the individual plaintiffs by their first names because they share a surname.
Thereafter, as construction progressed, the plaintiffs observed what they believed to be several code violations and they complained to Circle B. In October 2011, Circle B forwarded the plaintiffs' concerns to Phelan, which replied by sending an e-mail message (e-mail) to Circle B's director of sales and administration, Linda Weatherbee. In the e-mail, Phelan's engineer responded to the plaintiffs' concerns and stated, "It may be prudent for me to make a site visit at some time in the future to assure proper construction." Weatherbee forwarded Phelan's e-mail to the plaintiffs at the request of another Circle B employee. The plaintiffs then contacted Phelan, who agreed to visit the site. Phelan conducted three site visits and prepared three reports in which courses of action were suggested to address the issues raised by the plaintiffs. Circle B did not follow many of Phelan's suggestions.
In January 2012, Circle B finished construction and left the site. Thereafter, the town of Southampton's building inspector refused to issue a permanent certificate of occupancy because the arena did not meet code requirements. The plaintiffs retained the services of another contractor, who brought the building into compliance; the plaintiffs commenced an action for damages against Circle B and Phelan. In an amended complaint, the plaintiffs allege that Phelan is liable for negligent misrepresentation and violation of G. L. c. 93A, § 11, because Phelan's engineer visited the site three times, authored three reports, and never stated that he was not the engineer of record. As a result of Phelan's alleged misrepresentation, the plaintiffs claim they believed to their detriment that Phelan was monitoring construction for compliance with the code.
Phelan moved for summary judgment on the amended complaint, arguing, among other things, that the plaintiffs cannot establish that they relied on any false statements of Phelan's engineer to their detriment. A judge of the Superior Court allowed the motion in a written decision, and the plaintiffs prematurely appealed. Thereafter, Phelan moved for entry of a separate and final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). The motion was allowed, and judgment entered dismissing the amended complaint. The plaintiffs did not file a notice of appeal from the judgment. This procedural defect was called to the attention of the parties at oral argument. As Phelan could not identify any way in which it was prejudiced by this procedural misstep, we exercise our discretion to treat the appeal as properly before us. ZVI Constr. Co. v. Levy, 90 Mass. App. Ct. 412, 418 (2016).
Circle B did not appear in the action, and the judge dismissed the plaintiffs' claims against it because the corporation had been involuntarily dissolved.
Standard of review. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "We review a grant of summary judgment de novo 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.’ " Juliano v. Simpson, 461 Mass. 527, 529-530 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Where, as here, the moving party does not bear the burden of proof at trial, the moving party is entitled to judgment if the moving party can demonstrate that the opposing party "has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Discussion. Among other things, a plaintiff seeking to recover for negligent misrepresentation must establish that they justifiably relied on false information that the defendant supplied for their guidance. See DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795, 799-800 (2013). When pressed at oral argument, the plaintiffs could not identify any false information Phelan supplied for their guidance. They rely on the engineer's use of the words "assure proper construction" in his e-mail to Weatherbee to argue that Phelan created the false impression that the visits to the site were to ensure "construction is properly performed," as the disclaimer states the engineer of record would do. Because Phelan's engineer never stated that he was not the engineer of record, and because Phelan was the only engineering firm the plaintiffs knew to be associated with the project, the plaintiffs claim that they reasonably relied on Phelan to ensure that the arena was built to code.
"A claim for negligent misrepresentation is ordinarily one for a jury, unless the undisputed facts are so clear as to permit only one conclusion." Nota Constr. Corp. v. Keyes Assocs., 45 Mass. App. Ct. 15, 20 (1998). Here, the plaintiffs' claimed belief that Phelan was the engineer of record is unsupported in light of the express language of the disclaimer and the undisputed fact that Phelan's engineer told Robert, at the onset of the project, that he would not be conducting site visits to monitor construction. However, even if Phelan's e-mail to Circle B did create an impression that Phelan was acting as the engineer of record, the plaintiffs have no reasonable expectation of proving that Phelan conveyed this false impression to them. It is undisputed that Phelan's e-mail was sent to Circle B alone, and then forwarded to the plaintiffs at Circle B's direction. Summary judgment was appropriate.
Counsel for Phelan has represented that Robert holds a construction supervisor's license. Robert has not submitted an affidavit, but, in sworn answers to interrogatories, he repeatedly references code requirements and asserts that Phelan failed to meet his obligations thereunder. Robert also outlines in great detail the areas of construction that did not comply with the code. However, he does not state the basis for his knowledge. We observe that, unlike answers to interrogatories, affidavits filed in opposition to motions for summary judgment "shall show affirmatively that the affiant is competent to testify to the matters stated therein." Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). Nancy states in an affidavit that she and Robert learned for the first time at Paul Phelan's deposition that Phelan did not consider itself the engineer of record. However, we do not consider her hearsay assertions as evidence of what Robert knew and when. See Madsen v. Erwin, 395 Mass. 715, 721 (1985). In these circumstances, the absence of an affidavit from Robert speaks volumes about the plaintiffs' claimed misunderstanding of Phelan's role and responsibilities.
The plaintiffs acknowledged at oral argument that their G. L. c. 93A, claim "is absorbed in and vanishes with the misrepresentation claim." Fernandes v. Rodrigue, 38 Mass. App. Ct. 926, 928 (1995).
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Judgment affirmed.