McGlashing v. Mary E. Fabas, Inc.

Full title: Scott J. McGlashing, and another vs. Mary E. Fabas, Inc., and another

Court: Massachusetts Appellate Division, Southern District

Date published: Nov 16, 1994

1994 Mass. App. Div. 216 (Mass. Dist. Ct. App. 1994)

Opinion

November 16, 1994.

Present: Martin, Welsh, JJ.

Tort, Misrepresentation. Consumer Protection, G.L.c. 93A; Demand letter. Evidence, Of damages. Practice, Civil, Motion for involuntary dismissal; Dist./Mun. Cts. R. Civ. P., Rule 41(b) (2).

Report of court's dismissal of plaintiffs' report. Motion for involuntary dismissal heard in the Attleboro Division by Dolan, J.

Louis F. Cerrone for the plaintiffs.

Van L. Hayhow for the defendants.

Martin, J.

This is an action in which plaintiffs seek tort damages resulting from defendants alleged negligent misrepresentation of the size of a parcel of real estate purchased by plaintiffs. They also seek damages under the provision of G.L.c. 93A. At the close of plaintiffs' evidence, defendants moved pursuant to Dist./Mun. Cts. R. Civ. P., Rule 41(b) (2) for involuntary dismissal.

The judge allowed the defendants' motion and we affirm.

Conclusion

The judge found as a fact there was no credible evidence of damages with respect to the misrepresentation claim; and since this action sounds essentially in tort, failure to prove damages is a fatal flaw and the Rule 41 (b) (2) motion should have been allowed.

The judge further found that the purported demand letter did not meet G.L.c. 93A requirements. Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812, 813 (1975) and the allowance of the motion was correct.