Atchue v. Benchmark Senior Living LLC

• Decision Date: 05 October 2020
• Docket Number: No. 19-P-125,19-P-125
• Citation: 98 Mass.App.Ct. 572,158 N.E.3d 69
• Parties: Kenneth F. ATCHUE, personal representative, v. BENCHMARK SENIOR LIVING LLC, & another.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 572

158 N.E.3d 69

Kenneth F. ATCHUE, personal representative,¹

v.BENCHMARK SENIOR LIVING LLC, & another.²

No. 19-P-125

Appeals Court of Massachusetts, Worcester..

Argued November 5, 2019.

Decided October 5, 2020.

Thomas B. Farrey, III, for the plaintiff.

Joseph M. Desmond for the defendants.

Present: Rubin, Wolohojian, & Henry, JJ.

HENRY, J.

Mary T. Atchue brought a complaint for discovery -- a seldom used equitable remedy -- to ascertain how she sustained a broken foot

and contusions, possibly while being transferred by aides at an assisted living facility owned and operated by the defendants. She appeals from a judgment dismissing her complaint without explanation. The defendants contend that the matter is now moot, either because the statute of limitations on Atchue's potential negligence claim has expired and a complaint for negligence would be time barred or because Atchue has died. We conclude that the matter is not moot. Accepting as true, as we must, Atchue's allegation in her complaint that she believed that she had a claim for negligence but required the requested documents to assess the viability of that claim, we conclude that it was error to dismiss her complaint in these narrow circumstances: she demonstrated an actual injury while in the care of others, she seeks to discover records of her own care, and she asserts that she needs such records to assess the viability of her potential claim.³ Accordingly, we vacate the judgment of dismissal.

Factual background. We accept the factual allegations of the complaint as true, as well as any reasonable favorable inferences drawn from them. See Security Coop. Bank v. McMahon, 294 Mass. 399, 403-404, 2 N.E.2d 214 (1936) (taking allegations in bill in equity as true). See also Zizza v. Zizza, 456 Mass. 401, 402 n.3, 923 N.E.2d 1018 (2010) ; Chang v. Winklevoss, 95 Mass. App. Ct. 202, 204, 123 N.E.3d 204 (2019).

On December 19, 2015, while in her unit of an assisted living facility known as Tatnuck Park at Worcester, Atchue fell while being transferred by aides and was injured, sustaining a broken foot

and contusions. Her family repeatedly requested that the defendants provide copies of all reports concerning the accident. An employee of the defendants has acknowledged the existence of records concerning the accident. The defendants agree that they have not produced these reports.

Prior to filing her complaint for discovery, Atchue's counsel sent the defendants a G. L. c. 93A demand letter, which is attached to the complaint, alleging that she fell while "aides were transferring [her] without using a gait belt, in contravention of [the defendants'] own care plan." This was not the end of the exchange between the parties, however. The defendants responded by disputing any liability and particularly disputing (1) that Atchue fell (defendants say her legs gave out and aides assisted her to the ground), (2) that Atchue's care plan required aides to use a gait belt when transferring her, and (3) that Atchue broke her foot during this incident when aides assisted her to the ground.

The records are in the exclusive possession of the defendants, and Atchue is the subject of the records. She alleged that she "believes that she has a viable claim for negligence against [the defendants] and/or their agents, servants or employees," but that she "requires the information contained in the incident report and other requested documents in order to assess the viability of her claim." Atchue was elderly at the time of the incident, and it is unclear whether she may have had cognitive impairments that prevented her from understanding or conveying to others what, exactly, happened. Based on the fact that this was an assisted living facility, as well as statements that family members were acting on her behalf by requesting the records and handling her billing, it also is reasonable to infer that Atchue may not have been able to identify the specific aides or negligent acts that caused her injuries.

Atchue's complaint for discovery seeking the production of documents was docketed on June 1, 2018, and it was dismissed on November 8, 2018. Atchue filed her notice of appeal on December 3, 2018.

Discussion. 1. Bills for discovery. Historically, a bill for discovery came within the "ancillary jurisdiction of the equity court" and could be maintained "to aid the plaintiff in a suit which he intend[ed] immediately to bring, as well as in a suit already brought, if the bill disclose[d] a cause of action" (citation omitted). Wolfe v. Massachusetts Port Auth., 366 Mass. 417, 419, 319 N.E.2d 423 (1974). The bill for discovery could be brought to help a party determine the correct party to sue, see, e.g., id. at 422, 319 N.E.2d 423 ; to obtain evidence in support of an action already brought, see, e.g., MacPherson v. Boston Edison Co., 336 Mass. 94, 103, 142 N.E.2d 758 (1957) ; or to obtain evidence in support of an action not yet brought, see, e.g., Backlund v. General Motors Corp., 352 Mass. 776, 776, 226 N.E.2d 555 (1967).⁴ Since the enactment of simpler, statutory procedures for obtaining discovery, "[t]here are few instances in which [bills for discovery] continue[ ] to have any practical significance." MacPherson, supra at 100, 142 N.E.2d 758. However, the Supreme Judicial Court has made clear that statutory remedies have not supplanted the bill for discovery and that the bill instead supplements those remedies. See, e.g., Wolfe, supra at 419 n.1, 319 N.E.2d 423 ("[t]he rules [of civil procedure] do not eliminate the ‘independent action against a person not a party for production of documents and things and permission to enter upon land’ " [citation omitted]).⁵ Thus, when a bill seeks discovery alone, discovery is available "where the statutory procedure[s] [are] inadequate to obtain the necessary information, and ... where the information sought could have been obtained under a pre-1851 bill for discovery." MacPherson, supra. In deciding whether to grant such discovery, a judge should bear in mind the " ‘limited purpose’ for which [a bill for discovery] provides a ‘practical and reasonable’ discovery procedure and that the relief granted is within these parameters." Wolfe, supra at 422, 319 N.E.2d 423, quoting MacPherson, supra at 105, 142 N.E.2d 758.

2. Mootness. We first address the defendants' argument that this matter is now moot either because of the statute of limitations such that a complaint for negligence would be time barred or because Atchue has died. As a general rule, courts do not decide moot cases. Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 816, 120 N.E.3d 1163 (2019), cert. denied sub nom. Branch v. Massachusetts Dep't of Labor Relations, ––– U.S. ––––, 140 S. Ct. 858, 205 L.Ed.2d 456 (2020). "[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome" and where a court thus cannot order any further effective relief.

Id. at 816-817, 120 N.E.3d 1163, quoting Bronstein v. Board of Registration in Optometry, 403 Mass. 621, 627, 531 N.E.2d 593 (1988).

a. Statute of limitations. The defendants argue that the statute of limitations for negligence claims expired on the three-year anniversary of Atchue's fall, while this appeal was pending. See G. L. c. 260, § 2A. The defendants further contend that if Atchue can no longer bring a negligence claim, her complaint for discovery is moot because she no longer has a personal stake in obtaining the requested documents. Atchue does not dispute that the statute of limitations for negligence claims is three years and instead argues that if she is permitted, on remand, to amend her complaint for discovery to add a negligence claim, that negligence claim would relate back to when she filed her complaint for discovery. We agree.

When a new claim asserted in an amended pleading arises "out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment ... relates back to the original pleading." Mass. R. Civ. P. 15 (c), 365 Mass. 761 (1974). Atchue's complaint alleged that she fell while being transferred by aides at her assisted living facility. To the extent that Atchue seeks to amend her complaint to add a claim for negligence arising out of that very fall, we have no trouble concluding that such a claim would arise out of the occurrence set forth in the original pleading. See Cimino v. Milford Keg, Inc., 385 Mass. 323, 333, 431 N.E.2d 920 (1982) (new emotional distress claim arose out of same car accident that gave rise to original wrongful death claim). Contrast Weber v. Community Teamwork, Inc., 434 Mass. 761, 784-785, 752 N.E.2d 700 (2001) (new retaliation claim, for employer's refusal to provide reference letter after plaintiff filed complaint with Massachusetts Commission Against Discrimination, did not relate back to plaintiff's original claims, which arose out of her termination).⁶

Through the relation back doctrine, Atchue offers a feasible means by which her potential negligence claim is not barred by the statute of limitations. Remand is appropriate in these circumstances. Cf. Gonzalez v. Commissioner of Correction, 407 Mass. 448, 453, 553 N.E.2d 1295 (1990) (where class action improperly certified because issue had become moot as to named plaintiffs, "better course" was to remand to see if someone else would seek to be admitted as class representative); Dwyer v. Globe Newspaper Co., 367 Mass. 910, 911, 330 N.E.2d 476 (1975) (due to developments in law occurring after case was on appeal, justice "best served" by remanding with instructions that plaintiff could file motion to amend). Any prejudice to the defendants is for the judge to weigh on remand. See Cimino, 385 Mass. at 333, 431 N.E.2d 920.⁷ b. Survival of complaint after death. Nor is this matter moot as a result of Atchue's death. At common law, contract actions survived the death of a party, while tort actions did...