Opinion
14-P-657
05-28-2015
MARK A. GOLDENBERG v. ARTHUR L. NORRIS, JR., & 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
This action arose out of the purchase of a home in Marblehead with a foundation problem. Mark A. Goldenberg commenced this action raising claims against the sellers, Arthur L. and Janice G. Norris, for breach of contract (count I) and negligent misrepresentation (count II). By the first amended complaint, Goldenberg added claims against the Norrises' architect, Andrew M. Sidford, for fraudulent misrepresentation (count III), negligent misrepresentation (count IV), and breach of warranty (count V). A judge of the Superior Court subsequently allowed the separate motions of the Norrises and Sidford for summary judgment. We affirm.
Review of a grant of summary judgment is de novo. See Massachusetts Hous. Opportunities Corp. v. Whitman & Bingham Assocs., P.C., 83 Mass. App. Ct. 325, 328 (2013). Where there are no genuine issues of material fact, as here, questions pertaining to the timeliness of the action may be decided as matter of law. Ibid.
Discussion. Goldenberg's claims were subject to six-year and three-year limitation periods. See G. L. c. 260, §§ 2 and 2A. In cases involving an inherently unknowable injury, such as this one, the discovery rule extends the start of the limitations periods for a tort claim until the party knew or, in the exercise of reasonable diligence, should have known he may have been harmed by the conduct of another. See Passatempo v. McMenimen, 461 Mass. 279, 293-294 (2012). The accrual date of a breach of contract claim based on this type of wrong occurs when "the injured party knows or should know the facts giving rise to the cause of action." International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass. App. Ct. 215, 222 (1990).
Goldenberg did not challenge the application of the tort statute of limitations to his breach of warranty claim. See Klein v. Catalano, 386 Mass. 701, 719 (1982) (noting that the elements of the plaintiff's breach of warranty and negligence claims against the architect were the same).
1. Claims against the Norrises. The nub of Goldenberg's claims against the Norrises is that they failed to follow the recommendations of Sidford and John O'Connell, the structural engineer, regarding the soil and sold him a house built largely on organic materials in violation of the State building code (code).
We conclude, as did the motion judge, that the limitations clock on these claims began running no later than August, 2003. At that time, Goldenberg's eight year old house had patent defects suggesting structural problems. Goldenberg had been concerned enough about the condition to find and to retain Sidford. Goldenberg knew that in the opinion of the soil and foundation experts, differential settling had occurred causing damage to the foundation walls. From documents supplied by Sidford, Goldenberg also knew that particular acts and omissions by the Norrises with respect to the subgrade preparation may have been a cause of that harm. In these circumstances, although Goldenberg was unaware of the exact geotechnical cause or causes of the unequal settling, his knowledge triggered at least a duty to inquire further into whether he had a cause of action against the Norrises. See Koe v. Mercer, 450 Mass. 97, 102-103 (2007). Moreover, any breaches by the Norrises were discoverable at this time. See International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass. App. Ct. at 222. Goldenberg did not, however, engage Geotechnical Services Inc. to perform soil boring tests until 2011. Filed in April, 2012, his claims brought over eight years after accrual were time barred.
Where, as here, there was no evidence of any postclosing contact or communications between the Norrises and Goldenberg, the case was not a candidate for equitable tolling. See Passatempo v. McMenimen, 461 Mass. at 295-296.
2. Claims against Sidford. The heart of Goldenberg's claims against Sidford was that in light of his unique knowledge, he improperly advised Goldenberg in 2003 to employ conservative measures instead of advising him to immediately undertake the soil boring tests. His claims, though pleaded under the rubric of misrepresentation and breach of warranty, sounded in negligence. See Massachusetts Hous. Opportunities Corp. v. Whitman & Bingham Assocs., P.C., 83 Mass. App. Ct. at 330.
We conclude, as did the judge, that Goldenberg's theory of liability required expert testimony that Sidford's professional advice in 2003 deviated from the standard of care required of a qualified architect; and that Goldenberg's reliance upon that advice caused him actual loss. See Klein v. Catalano, 386 Mass. at 718-720; Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 226-229 (1999).
Presented with Sidford's motion for summary judgment based in part on the lack of expert testimony here, Goldenberg neither supplemented his discovery responses to identify an expert and the substance of the proposed testimony, nor sought a continuance of the proceedings to obtain an expert. See Mass.R.Civ.P. 26(e)(1)(b), 365 Mass. 776 (1974), and Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974). Absent expert testimony, Goldenberg had no reasonable expectation of proving essential elements of his claims against Sidford. Summary judgment was properly entered in favor of Sidford on this basis.
The discovery deadline had expired.
Judgments affirmed.
Order denying motion for reconsideration affirmed.
The Norrises' request for attorney's fees and double costs is denied.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 28, 2015.