365 Mass. 83 (1974), Hendrickson v. Sears

Citation365 Mass. 83, 310 N.E.2d 131
Party NameHoward D. HENDRICKSON et al. [ 1] v. Clard S. SEARS.
Case DateApril 08, 1974
CourtSupreme Judicial Court of Massachusetts

Page 83

365 Mass. 83 (1974)

310 N.E.2d 131

Howard D. HENDRICKSON et al. 1

v.

Clard S. SEARS.

Supreme Judicial Court of Massachusetts, Suffolk.

April 8, 1974

Argued Feb. 7, 1974.

Daniel J. Gleason, Boston, for plaintiffs.

Vincent Galvin, Boston, for defendant.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ. [310 N.E.2d 132] BRAUCHER, Justice.

Pursuant to S.J.C. Rule 3:21, 359 Mass. --- (197---), the United States Court of Appeals for the First Circuit has certified to us the question when a client's cause of action against an attorney for negligent certification of title to real estate 'accrues' for purposes of G.L. c. 260, § 2A. We hold that the cause of action does not accrue until

Page 84

the misrepresentation is discovered or should reasonably have been discovered, whichever first occurs, and so answer the certified question.

According to the Court of Appeals, the complaint made the following allegations. In April, 1961, the plaintiffs retained the defendant, a Massachusetts attorney, to search the title to real estate in Topsfield. The defendant certified to the plaintiffs that the title was 'valid, clear and marketable,' except for an encumbrance not relevant here. The plaintiffs then purchased the property and remained unaware of other encumbrances until they contracted to sell the property in 1970. In June, 1970, the prospective purchasers refused to buy because of a recorded easement running through the premises, and the plaintiffs suffered a loss in effecting modification of the easement and in the ultimate sale of the property.

On October 27, 1971, the plaintiffs commenced the action in the United States District Court for the District of Massachusetts. The judge allowed a motion by the defendant to dismiss the action on the ground that the limitation period had run. Hendrickson v. Sears, 359 F.Supp. 1031 (D.Mass.1973), citing Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966). A judgment of dismissal was entered, the plaintiffs appealed to the Court of Appeals, and that court on its own motion certified to us the question set forth in the margin. 2

1. Under the Federal Rules of Civil Procedure the plaintiffs' complaint need not and did not label the action as an action of contract or as an action of tort. Compare Mass.R.Civ.P., Rule 2, --- Mass. ---, effectively July 1, 1974. Under our traditional practice, a plaintiff may elect to bring either an action of contract or an action of tort in such a case, but he need not choose between the two labels. Ashley v. Root, 4 Allen 504, 505--506 (1862). Under G.L.

Page 85

  1. 260, § 2, actions of contract 'shall, except as otherwise provided, he commenced only within six years next after the cause of action accrues.' Under G.L. c. 260, § 2A, actions of tort, except as otherwise provided, 'shall be commenced only within two years next after the cause of action accrues.' 3

That limitation statutes should apply equally to similar facts regardless of the form of proceeding is intrinsically a sound proposition. See NEW BEDFORD V. LLOYD INV. ASSOCIATES, INC., MASS. (1973) , 292 N.E.2D 688. A To that end the Legislature has in some situations made explicit provision for the same limitation period for particular types of claims, whether in contract or in tort. G.L. c. 260, § 2A, inserted by St.1948, c. 274, § 2 (actions of contract to recover for personal injuries listed with actions of tort). G.L. c. 260, § 4, as amended by St.1921, c. 319 (actions of contract or tort for medical malpractice). In other situations we have looked to the 'gist of the action' or the essential nature of the plaintiff's claim. See Brackett v. Perry, 201 Mass. 502, 504, 87 N.E.2d 903 (1909); Kagan v. Levenson, 334 Mass. 100, 103, 134 N.E.2d 415 (1956); Desmond [310 N.E.2d 133] v. Moffie, 375 F.2d 742, 743 (1st Cir. 1967). Compare Gallagher v. First Natl. Bank, 346 Mass. 587, 589, 195 N.E.2d 68 (1964) (survival of action). In still others we have allowed the plaintiff to elect. Miller v. Miller, 7 Pick, 133, 136 (1828). Compare Clark v. Swift, 3 Met. 390, 395--396 (1841); McQuesten v. Spalding, 231 Mass. 301, 303--304, 120 N.E. 850 (1918). See Prosser, The Borderland of Tort and Contract, Selected Topics on the Law of Torts, 380, 440--443 (1953); Wade, The Attorney's Liability for Negligence, 12 Vand.L.Rev. 755, 772--773 (1959); Roady, Professional Liability of Abstracters, 12 Vand.L.Rev. 783, 792--793 (1959); comment, Tort in Contract: A New Statute of Limitations, 52 Ore.L.Rev. 91 (1972); annotation, 49 A.L.R.2d 1216 (1956).

In the present case the Federal district judge found that

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the statute of limitations had run as to the plaintiffs' claim, regardless of whether the action was classified in contract or in tort, since the alleged malpractice occurred more than ten years before the action was commenced. Since there is no claim here that the alleged malpractice was discovered or should have been discovered more than two years before the action was commenced, the outcome cannot turn on whether it is governed by § 2 or by § 2A of c. 260. We have not been asked to determine that question, and we do not.

2. The traditional view of an action for...

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243 practice notes
  • 341 F.Supp.2d 51 (D.Mass. 2004), Civ. A. 02-12172, Lawson v. Affirmative Equities Co., L.P.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • October 27, 2004
    ...accrues on the happening of an event likely to put the plaintiff on notice." Hendrickson v. Sears, 365 Massachusetts 83, 89-90, 310 N.E.2d 131 (1974). See also Rotella v. Wood, 528 U.S. 549, 553-554, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (same). Statutes of limitations, however, are ......
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • January 3, 1986
    ...of action "accrues". E.g., Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458 (1980) ( M.G.L. c. 260 § 4); Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974) (M.G.L. c. 260 §§ 2, 2A). The Massachusetts discovery rule stems from an interpretation of the word "accrues&quo......
  • 754 F.Supp.2d 128 (D.Mass. 2010), C. A. 09-11315-MBB, Financial Resources Network, Inc. v. Brown & Brown, Inc.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • November 18, 2010
    ...the action’ is contractual, the contract period Page 157 of limitations applies to each claim" ); 23 see also Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131, 132 (1974) (in certain " situations we have looked to the ‘ gist of the action’ or the essential nature of the plaintif......
  • 518 A.2d 423 (D.C. 1986), 84-1318, Bussineau v. President and Directors of Georgetown College
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 26, 1986
    ...the easement. A's cause of action against the attorney is held to accrue when the easement is discovered. See Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131, 135 (1974). Again, the injury and cause in fact combine to scream out "malpractice." Put another way, the fact of injur......
  • Request a trial to view additional results
241 cases
  • 341 F.Supp.2d 51 (D.Mass. 2004), Civ. A. 02-12172, Lawson v. Affirmative Equities Co., L.P.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • October 27, 2004
    ...accrues on the happening of an event likely to put the plaintiff on notice." Hendrickson v. Sears, 365 Massachusetts 83, 89-90, 310 N.E.2d 131 (1974). See also Rotella v. Wood, 528 U.S. 549, 553-554, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (same). Statutes of limitations, however, are ......
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • January 3, 1986
    ...of action "accrues". E.g., Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458 (1980) ( M.G.L. c. 260 § 4); Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974) (M.G.L. c. 260 §§ 2, 2A). The Massachusetts discovery rule stems from an interpretation of the word "accrues&quo......
  • 754 F.Supp.2d 128 (D.Mass. 2010), C. A. 09-11315-MBB, Financial Resources Network, Inc. v. Brown & Brown, Inc.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • November 18, 2010
    ...the action’ is contractual, the contract period Page 157 of limitations applies to each claim" ); 23 see also Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131, 132 (1974) (in certain " situations we have looked to the ‘ gist of the action’ or the essential nature of the plaintif......
  • 518 A.2d 423 (D.C. 1986), 84-1318, Bussineau v. President and Directors of Georgetown College
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 26, 1986
    ...the easement. A's cause of action against the attorney is held to accrue when the easement is discovered. See Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131, 135 (1974). Again, the injury and cause in fact combine to scream out "malpractice." Put another way, the fact of injur......
  • Request a trial to view additional results
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