Opinion
14-P-90
01-30-2015
STEVEN S. MINASIDIS v. CHRISTOPHER I. PAPPAS & another.
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
Christopher I. Pappas and the 246 East Water Street Realty Trust (Trust) (collectively the defendants) appeal from the denial of their motions for judgment notwithstanding the verdict (JNOV) and entry of the second amended judgment in an action brought by Steven S. Minasidis claiming, among other things, fraud, negligent misrepresentation, and violations of G. L. c. 93A. The defendants contend that the judge erred in (1) denying their motions for JNOV because Minasidis's tort claims were untimely, and (2) assessing statutory interest from September 30, 2010, to October 18, 2012, because the judge delayed entry of the final judgment through no fault of the defendants. Moreover, the Trust contends that the judge erred in failing to direct a verdict on Minasidis's c. 93A claim because it was untimely, and Minasidis failed to prove damages. We reverse.
Because we vacate Minasidis's tort and c. 93A verdicts, we need not reach this issue.
In reviewing the denial of a motion for JNOV, we consider "whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [nonmoving party]." Montes v. Massachusetts Bay Transp. Authy., 446 Mass. 181, 182 (2006), quoting from Boothby v. Texon, Inc., 414 Mass. 468, 470 (1993).
1. Minasidis's tort claims against the defendants. The defendants contend that the judge erred in denying their motions for JNOV because Minasidis's claims for fraud and negligent misrepresentation were untimely. We agree. Under the discovery rule, the three-year statute of limitations for tort actions "starts when the plaintiff discovers, or reasonably should have discovered, 'that [he] has been harmed or may have been harmed by the defendant's conduct.'" Koe v. Mercer, 450 Mass. 97, 101 (2007) (citation omitted). G. L. c. 260, § 2A. "The plaintiff need not know the full extent of its injury for a cause of action to accrue . . . ." Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 229 (2002).
Minsaidis filed his complaint on December 1, 2006. Accordingly, for his tort claims to be timely, he must not have known or should not have known of the harm before December 1, 2003.
Here, the jury found, in answer to the special questions, that Minasidis neither knew nor reasonably should have known, that the defendants had engaged in fraudulent conduct and made negligent misrepresentations prior to August 21, 2006. This finding is not supported by the evidence. To the contrary, the evidence establishes conclusively that Minasidis knew of his injury no later than November 24, 2003, the date on which he sent his c. 93A demand letter to the defendants. Between January and October of 2003, Minasidis received a letter from the Department of Environmental Protection and eight notices of default from the Trust, all of which suggested that he was responsible for additional cleanup costs at the site. Indeed, in one notice of default, the Trust addressed the exact factual allegations that Minasidis later pleaded in support of his tort claims: "To suggest that my client misrepresented the 'fact that the subject premises was contaminated' or has 'harassed or intimidated Mr. Minasidis in an attempt to transfer the cost of cleanup' is an absolute distortion of the facts and the truth of the legal obligations assumed by your client." Likewise, the allegations in Minasidis's c. 93A demand letter confirm that he had notice of his claims against the defendants by November 24, 2003, at the very latest. In sum, the evidence presented at trial overwhelmingly establishes that Minasidis's tort claims were untimely because he knew of his injury prior to December 1, 2003. Accordingly, the judge erred in denying the defendants' motions for JNOV.
Specifically, Minasidis's c. 93A demand letter asserted (1) "The Trust's repeated and unreasonable demand to amend the promissory note and mortgage to increase Minasidis's liability for the Trust's failure to complete the cleanup of the Site . . . is an unfair and deceptive business practice . . . ."; (2) "Any purported agreement by Minasidis to assume unlimited liability for the Site is void ab initio . . . . "; and (3) Pappas "pressured [Minasidis] to sign a document he did not understand in order to avoid foreclosure. After being told that the document was only a draft . . . Minasidis purportedly assented, but only as a draft document, subject to the advice of his attorney."
2. Minasidis's c. 93A claim against the Trust. Although we reject the Trust's contention that Minsaidis's c. 93A claim was untimely, we agree that the judge erred in failing to direct a verdict on the claim because Minasidis failed to prove damages. "To recover damages or attorney's fees under c. 93A, § 11, a plaintiff must show that he has suffered a 'loss of money or property, real or personal.'" Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 19 (2003) (citation omitted). Moreover, "[w]hen . . . damages are sought they must be proved and not left, as here, to speculation." Snelling & Snelling of Mass., Inc. v. Wall, 345 Mass. 634, 636 (1963). To the extent that Minasidis claims he was harmed by the Trust's conduct, it was incumbent on him to prove his entitlement to damages. See Kitner v. CTW Transp., Inc., 53 Mass. App. Ct. 741, 748-749 (2002). He failed to do so. Indeed, the record is devoid of any evidence of Minasidis's damages. Accordingly, we conclude that the judge should have directed a verdict in favor of the Trust on the c. 93A claim.
The statute of limitations for c. 93A claims is four years. G. L. c. 260, § 5A. So long as Minasidis did not have actual or constructive notice of his claim until after December 1, 2002, his c. 93A claim was timely. Having reviewed the trial record, we conclude that the jury could properly have found that Minasidis did not have, and should not have had, notice of his c. 93A claim until after December 1, 2002.
3. Conclusion. Those portions of the second amended judgment awarding damages to the plaintiff for intentional misrepresentation, negligent misrepresentation, and violations of c. 93A, as well as the award of attorney's fees, are reversed. The portions of the special verdict form supporting those awards are set aside. The second amended judgment shall be amended accordingly.
So ordered.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 30, 2015.