Opinion
No. 11–P–952.
2012-07-3
Linda INNISS, trustee v. Constantine ILIEV & another.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, a prospective real estate buyer, filed a multi-count complaint in the Superior Court against the defendant, a real estate listing agent, seeking monetary damages and equitable relief. The gist of the plaintiff's claim, variously stated in the complaint, is that the defendant breached a “legal and ethical obligation” to inform her of a price decrease of a condominium unit listed with the defendant's listing service, but failed to do so, and later purchased the unit for himself. In the complaint, the plaintiff sought relief for alleged negligent misrepresentation; fraud; breach of fiduciary duty; negligence; unjust enrichment; breach of implied contract or quasi-contract; violation of G.L. c. 93A; and equitable estoppel. A judge of the Superior Court, without comment, granted the defendant's motion to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), and the plaintiff filed a timely appeal from the dismissal of the complaint. We concur with the motion judge's conclusion that the complaint, indulgently read, see Federico v. Brockton Credit Union, 39 Mass.App.Ct. 57, 61 (1995), citing Nader v. Citron, 372 Mass. 96, 98 (1977), fails to state a claim for relief. Accordingly, we affirm the dismissal.
Background. We briefly outline the facts and comment on the legal propositions. The complaint alleges that the plaintiff informed the defendant in or about March, 2009, that she was interested in purchasing a condominium in Lynn, which was listed for sale at $65,000, provided that the asking price for the unit was reduced below $60,000.
The defendant agreed to keep the plaintiff “posted.” At an unspecified time in May, 2009, the asking price of the condominium dropped below $60,000, but the plaintiff was never informed by the defendant of the price reduction. In May, 2009, the defendant purchased the property himself for $47,000. After learning that the defendant purchased the condominium, the plaintiff filed a complaint in the Superior Court seeking monetary and equitable relief.
The condominium, unit # 7, Mount Hood Terrace, in Lynn, was the subject of a foreclosure by Federal National Mortgage Association, a party in interest, which acquired the property after a foreclosure sale and retained Iliev to sell it.
Discussion. The lenient standard by which a complaint is measured on a motion to dismiss for failure to state a claim is familiar. “[T]he allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true.” Warner–Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998), quoting from Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass 404, 407 (1995). Doubts are resolved in favor of the complaint, and the motion must be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Ibid.
We review the motion judge's allowance of the defendant's motion to dismiss under rule 12(b)(6) de novo. See, e.g., Warner–Lambert Co. v. Execuquest Corp., 427 Mass. at 47–50. On the facts alleged, the plaintiff has failed to state any claim for which relief may be granted.
1. Negligent misrepresentation. In order to state a claim of negligent misrepresentation, the plaintiff must allege facts sufficient to prove that the defendant, in the course of his business, supplied false information for the guidance of the plaintiff, in a business transaction, causing and resulting in a pecuniary loss to the plaintiff, by the plaintiff's justifiable reliance upon the information, and with failure to exercise reasonable care or competence in obtaining or communicating the information. See Nota Constr. Corp. v. Keyes Assocs. Inc., 45 Mass.App.Ct. 15, 19–20 (1998). At the very least, the plaintiff has failed to allege facts constituting reasonable reliance on the defendant to provide her with timely updates on price reductions of the condominium unit at issue.
2. Negligence and breach of fiduciary duty. In order to establish a claim that the defendant acted negligently, the plaintiff must allege that the defendant owed her a duty of care; that the defendant breached that duty of care or, in other words, was negligent; that the plaintiff suffered injury or harm; and that the defendant's breach of duty was a cause of her injury or harm. Under both theories of relief, negligence and breach of fiduciary duty, the plaintiff must first must establish that the defendant actually owed her a legal duty. See Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002), regarding negligence generally; Hanover Ins. Co. v. Sutton, 46 Mass.App.Ct. 153, 164 (1999). Here, the complaint fails to allege the existence of any relationship between the plaintiff and the defendant that created a legal duty between the parties. Contrast Funk v. Tifft, 515 F.2d 23 (9th Cir.1975), cited by the plaintiff in support of her claim for breach of fiduciary duty (breach of fiduciary duty established where broker accepted a prospective buyer's bid on a house and an “earnest money deposit”, then called the owner and put in his own winning offer to purchase house).
3. Chapter 93A claim. While the defendant's alleged action, namely advancing his own interest by “pick[ing] the deal off for himself,” may not represent ideal ethics in our economic system, see and compare Doliner v. Brown, 21 Mass.App.Ct. 692, 695 (1986), the allegations fall short of establishing plausibility of entitlement to relief on a claim of violation of G.L. c. 93A. Although whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact, the boundaries of what may qualify for consideration as a violation of c. 93A is a question of law. Schwanbeck v. Federal–Mogul Corp., 31 Mass.App.Ct. 390, 414 (1991).
Here, our analysis of the allegations and the nature of the defendant's business conduct with regard to the plaintiff, objectively seen, was, at most, inattentive and therefore removed from the category of unfair and deceptive conduct. See PMP Assocs ., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975) (act or practice unfair when it is “within at least the penumbra of some common-law, statutory, or other established concept of unfairness; ... is immoral, unethical, oppressive, or unscrupulous”).
4. Remaining claims. Unjust enrichment, breach of implied contract or quasi-contract, and equitable estoppel are remedies available to a party where the retention of a benefit by a party would be contrary to equity and good conscience because of unjust enrichment of one party and unjust detriment to the other party. See Salamon v. Terra, 394 Mass. 857, 859 (1985)(“A quasi contract or a contract implied in law is an obligation created by law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent”); Mike Glynn & Co. v. Hy–Brasil Restaurants, Inc., 75 Mass.App.Ct. 322 (2009). Here, however, given the absence of any duty, misrepresentations, or improper conduct by the defendant, we see no basis for the plaintiff's equitable claims.
Accordingly, the judgment is affirmed.
So ordered.