Hendrickson v. Sears

• Citation: 310 N.E.2d 131,365 Mass. 83
• Parties: Howard D. HENDRICKSON et al. 1 v. Clard S. SEARS.
• Decision Date: 08 April 1974
• Court: United States State Supreme Judicial Court of Massachusetts

Page 131

310 N.E.2d 131

365 Mass. 83

Howard D. HENDRICKSON et al. ¹ v. Clard S. SEARS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 7, 1974.

Decided April 8, 1974.

Daniel J. Gleason, Boston, for plaintiffs.

Vincent Galvin, Boston, for defendant.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

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 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. c. 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 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 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 damages resulting from the negligence of an attorney is that the gist of the action, regardless of its form, is the attorney's breach of contract, and that the cause of action therefore accrues at the time of the breach. Short v. M'Carthy, 3 B. & Ald. 626, 630 (K.B.1820) (action in assumpsit); Howell v. Young, 5 B. & C. 259, 266 (K.B.1826) (action on the case); Wilcox v. Plummer, 4 Pet. 172, 182, 7 L.Ed. 821 (1830) (action in assumpsit). See annotation, 18 A.L.R.3d 978, 988 (1968). In reliance on those cases we took the view that the statutory period began to run on an action of tort for medical malpractice at the time of the breach of the surgeon's contract, 'and not when the actual damage results or is ascertained.' Capucci v. Barone, 266 Mass. 578, 581, 165 N.E. 653, 654 (1929); Maloney v. Brackett, 275 Mass. 479, 481, 176 N.E. 604 (1931); Pasquale v. Chandler, 350 Mass. 450, 455--458, 215 N.E.2d 319 (1966). But compare Haggerty v. McCarthy, 344 Mass. 136, 145, 181 N.E.2d 562 (1962) (dissenting opinion).

Nevertheless, the parties and the Court of Appeals agree that we have not previously addressed ourselves to the precise question now presented. In deciding such a matter of first impression, we should take account of modern legal thought on the subject as well as of such intimations as we can find in our own opinions on related points. In Pasquale v. Chandler, 350 Mass. 450, 456, 215 N.E.2d 319, 322 (1966), we noted 'the growing body of case law at odds with the Capucci doctrine which computed the statute's period from the date of the operation or act of malpractice.' There is a comparable growing body of case law with respect to legal malpractice. Fort Myers Seafood Packers, Inc. v. Steptoe & Johnson, 127 U.S.App.D.C. 93, 381 F.2d 261, 262 (1967); Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 194, 98 Cal.Rptr. 837, 491 P.2d 421 (1971); Downing v. Vaine, 228 So.2d 622, 627 (Ct.App.Fla.1969); Hillock v. Idaho Title & Trust Co., 22 Idaho 440, 450, 126 P. 612 (1912) (abstracter); Rozny v. Marnul, 43 Ill.2d 54, 72--73, 250 N.E.2d 656 (1969) (surveyor); Chrischilles v. Griswold, 260 Iowa 453, 459--463, 150 N.W.2d 94 (1967) (architect); Price v. Holmes, 198 Kan. 100, 105, 422 P.2d 976 (1967); Marchand v. Miazza, 151 So.2d 372, 375 (Ct.App.La.1963); Mumford v. Staton, Whaley & Price, 254 Md. 697, 714, 255 A.2d 359 (1969); Thorne v. Johnson, 483 S.W.2d 658, 662 (Ct.App.Mo.1972) (abstracter); New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 425--426, 241 A.2d 633 (1968); Atkins v. Crosland, 417 S.W.2d 150, 154 (Texas 1967).

Some of those decisions may be thought to depend on statutes which differ significantly from ours. Most of the others bring the law on legal malpractice into line with decisions of the same court on medical malpractice. The defendant therefore argues that the legal profession in Massachusetts should be held to the same rules as the medical profession by extending the Capucci doctrine to the present case. The Federal district judge adopted this reasoning: 'There certainly is no valid reason why the legal profession should be treated more harshly than the medical profession as to the date when their members may successfully bar adverse claims under the statute of limitations.' 359 F.Supp. at 1033.

We think, however, that the Legislature put medical malpractice cases in a distinct category. The Capucci doctrine was originally thought by us to follow from generally applicable principles. But in Haggerty v. McCarthy, 344 Mass. 136, 145, 181 N.E.2d 562 (1962), although the majority did not reach the point, three dissenting Justices stated that the doctrine should not be applied to an 'inherently unknowable' claim, citing Urie v. Thompson, 337 U.S. 163, 169, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), and United States v. Reid, 251 F.2d 691, 695 (5th Cir. 1958). In Pasquale v. Chandler, 350 Mass. 450, 456, 215 N.E.2d 319, 322 (1966), we said that 'we would be disposed to reconsider the question' but for 'recent legislation.'

The 'recent legislation' referred to consisted primarily of the amendment of G.L. c. 260, § 4, by St.1965, c. 302, relating solely to actions for medical malpractice. Until 1948 the limitations period generally applicable to actions of contract, tort and replevin was six years. R.L. c. 202, § 2 (1902), the predecessor of c. 260, § 2. Section 4 provided a two-year period for a list of specified actions, and St.1921, c. 319, added to that list 'actions of contract or tort for malpractice, error or mistake, against physicians, surgeons, dentists, hospitals and sanitaria.' In 1965 an amendment was proposed establishikng a two-year discovery rule and a five-year outer limit for such actions, but the Legislature instead changed the period from two years to three years. We gave this recent legislation...