Opinion
11-P-710
03-30-2012
JOHN HERDRICH & another v. JOSEPH A. BROSSI.
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 plaintiffs appeal from a summary judgment, dated October 25, 2010, entered in favor of the defendant. The plaintiffs brought claims of negligence, breach of implied warranty, fraud and misrepresentation, breach of express warranty, and breach of contract against the defendant over alleged defects in a home the defendant built for the plaintiffs in 1999 and 2000. The property was substantially completed and occupancy commenced by the plaintiffs on August 4, 2000. It is undisputed that the defendant received no requests for service or notice of defects from the plaintiffs between early 2001 and the commencement of this suit. The plaintiffs brought suit on all claims on June 18, 2009.
'The standard of review of a grant of summary judgment is 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.' Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). We agree with the motion judge that the plaintiffs' claims of negligence, breach of implied warranty, and fraud and misrepresentation are precluded under G. L. c. 260, § 2B, and that their claims for breach of contract and breach of express warranty are barred under G. L. c. 260, § 2. Moreover, the plaintiffs' initial complaint was unverified, and they failed to provide affidavits to support their contentions that (1) the house was not built according to the State building code, (2) any construction defects existed in the house, (3) any such defects were discovered after early 2001, or (4) the defendant was notified of any discovered defects after early 2001. Therefore, even had either statute of limitations been satisfied, it is likely that the serious fundamental deficiencies in the form of the complaint would have been independently fatal to the plaintiffs' claims.
We agree with the motion judge that the plaintiffs did not allege sufficient facts to demonstrate that the statute of limitations on any of their claims was tolled. See McGuinness v. Cotter, 412 Mass. 617, 621-622 (1992).
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Judgment affirmed.
By the Court (Kantrowitz, Trainor & Hanlon, JJ.),