Opinion
10-P-1079
10-04-2011
JACQUELINE A. FROST v. F&R REALTY TRUST & others.
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
The pro se plaintiff, Jacqueline A. Frost, appeals following the dismissal of her complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Because we agree that her claims are barred by the applicable statute of limitations and procedural rules, we affirm.
Background. When reviewing a rule 12(b)(6) motion to dismiss, we 'take as true 'the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor." Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004), quoting from Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). In her complaint, the plaintiff alleges that, beginning in 1991, she rented an apartment from the defendant landlords, F&R Realty Trust, Fred R. Richard, and Henry N. Fucillo (collectively, defendants). Thereafter, starting in 2003, she claims the defendants negligently maintained her apartment, thereby causing her serious injury. She further claims that her illness, Legionnaire's disease, has been shown to be building-related. The complaint also alleges a violation of G. L. c. 93A. The plaintiff moved out of the apartment on July 31, 2006.
The complaint specifically states that the defendants 'did not provide [her] with a safe house to live in . . . . [She] rented [her apartment] in March 1991 with a bathroom drop ceiling. Drop ceiling broke apart from 2003- 2006[.] [W]ater leaking from ceiling in bathroom into [her apartment] from upstairs tenants['] showers. Early autumn oil spill below cellar floor 2001. Landlords told of house situation of water leaks and oil leak and failed to protect [her] as a tenant.'
The plaintiff filed her complaint in Superior Court on December 29, 2009. The defendants thereafter filed a motion to dismiss on the grounds that both the tort claim and the c. 93A claim fall outside the applicable statute of limitations. The defendants also argued that the c. 93A claim is procedurally barred due to the plaintiff's failure to allege that she sent the required demand letter. Following a hearing, the motion judge entered a ruling citing the grounds raised by the defendants. This appeal followed.
Discussion. 'Tort claims in Massachusetts are governed by the three-year limitations period set forth in G. L. c. 260, § 2A, amended by St. 1973, c. 777, § 1.' Doherty v. Admiral's Flagship Condominium Trust, 80 Mass. App. Ct. 104, 107 (2011), citing Khatchatourian v. Encompass Ins. Co. of Mass., 78 Mass. App. Ct. 53, 57 (2010). Thus, the plaintiff's claim for negligence 'must have accrued within three years of the date she filed her complaint, or fall under the protection of an applicable exception, to be within the statutory limitations period.' Ibid. In her complaint, the plaintiff alleges that water leaks began in 2003, the oil spill occurred in 2001, and she moved out of her apartment on July 31, 2006. This entire sequence of events occurred more than three years prior to the date the plaintiff filed her complaint on December 29, 2009, placing it well outside of the limitations period.
On appeal, the plaintiff appears to invoke the discovery rule, claiming that she learned 'what happened to me and why' only in late December, 2006. The discovery rule tolls the accrual of a cause of action 'in circumstances where the plaintiff did not know or could not reasonably have known that he or she may have been harmed by the conduct of another.' Id. at 107-108, quoting from Koe v. Mercer, 450 Mass. 97, 101 (2007). For the discovery rule to apply, however, the plaintiff needed to have alleged specific facts in her complaint. Instead, the complaint simply states that '[she was] ill before moving out of [the apartment].' As we are limited to the factual allegations contained in the complaint and any attached exhibits in reviewing a motion to dismiss, Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007), we agree with the motion judge that the plaintiff's negligence claim was barred.
The plaintiff likewise fails to allege in her complaint that she sent a demand letter to the defendants of the type required by G. L. c. 93A, § 9(3), in order to pursue a claim under that statute. A proper demand letter is a prerequisite to filing a claim pursuant to G. L. c. 93A; failure to send such a letter requires dismissal of the claim. See Boston v. Aetna Life Ins. Co., 399 Mass. 569, 574 (1987); Spilios v. Cohen, 38 Mass. App. Ct. 338, 342 (1995). See also G. L. c. 93A, § 9(3). Accordingly, the plaintiff's c. 93A claim also was properly dismissed.
Judgment affirmed.
By the Court (Mills, Smith & Wolohojian, JJ.),