Eck v. Kellem

• Decision Date: 12 January 2001
• Docket Number: P-86
• Citation: 748 N.E.2d 1047,51 Mass. App. Ct. 850
• Parties: (Mass.App.Ct. 2001) DAVID W. ECK & another <A HREF="#fr1-1" name="fn1-1">1 vs. LAWRENCE A. KELLEM & another. <A HREF="#fr1-2" name="fn1-2">2 99-
• Court: Appeals Court of Massachusetts

748 N.E.2d 1047 (Mass.App.Ct. 2001)

DAVID W. ECK & another¹ vs. LAWRENCE A. KELLEM & another.²

99-P-86

IN THE COURT OF APPEALS OF MASSACHUSETTS

January 12, 2001.

June 13, 2001.

County: Suffolk.

Present: Greenberg, Gillerman, & Rapoza, JJ.

Limitations, Statute of. Negligence, Attorney at law. Attorney at Law, Attorney-client relationship, Malpractice, Negligence.

Civil action commenced in the Superior Court Department on June 6, 1996.

A motion for summary judgment was heard by Barbara A. Dortch-Okara, J.

A proceeding for interlocutory review was heard by Jacobs, J.

Scott D. Burke for Lawrence A. Kellem.

Kenneth B. Walton for Blake J. Godbout.

Valeriano Diviacchi for the plaintiffs.

GILLERMAN, J.

Eleven years after the plaintiffs (Ecks) sold certain Massachusetts real estate owned by them (property) to Stephen W. Bisson (Bisson), they commenced this action in the Superior Court for legal malpractice. The Ecks sought to recoup damages suffered in a prior action brought by Bisson against David W. Eck for misrepresentations in connection with the sale of the property and for violations of G. L. c. 21E. The Ecks' claims against the defendant Kellem, an attorney, arose out of Kellem's work in the preparation of the underlying purchase and sale agreement (sale agreement).³

Kellem brought forward a motion for summary judgment on the ground that the Ecks' claims were barred by the applicable statutes of limitations. The motion was denied. A single justice of this court granted Kellem leave to file this interlocutory appeal from the order denying his motion for summary judgment. We affirm.

Facts. We recite the facts drawn from the record appendix, describing them, when appropriate, in the light most favorable to the Ecks, the parties opposing the motion for summary judgment. See Mass.R.Civ.P. 56, 365 Mass. 824 (1974); Murphy v. Smith, 411 Mass. 133, 134 (1991).

In or about February, 1985, David W. Eck (Eck) retained Attorney Kellem to negotiate and draft the agreement for the sale of the property to Bisson. Eck was concerned about his liability for hazardous waste contamination on the property, and instructed Kellem to include a provision in the sale agreement that would protect him from any future claims by Bisson under G. L. c. 21E, the Massachusetts Oil and Hazardous Material Release Prevention Act.⁴ Kellem gave Eck the necessary assurances and drafted the sale agreement, which Bisson and Eck executed on March 23, 1985. The transaction was subsequently consummated.

Sometime in 1989, Eck and Kellem had a falling out, in consequence of which Eck brought his first legal malpractice claim against Kellem. That action is apart from Eck's malpractice claim against Kellem involved in this appeal.

On June 5, 1989 -- after Eck had sued Kellem the first time -- Bisson sued Eck to recover damages resulting from hazardous materials found on the property sold to Bisson in 1985 (Bisson suit). Eck rejected Kellem as his defense attorney because Kellem would be a witness in the litigation. Instead, he retained Attorney Blake J. Godbout.

Godbout's affidavit states that, in defending the Bisson suit, he and Eck relied on Kellem's legal opinion "that Mr. Eck was protected against any Chapter 21E liability in the Bisson case." On June 16, 1993, Kellem testified for Eck at the trial. Kellem had been brought into the suit at the "11th hour," according to Eck; there had been no previous conversation directly between Eck and Kellem.

On June 18, 1993, in answers to special verdict questions, the jury found that Bisson had not relied on, and had not been damaged by, Eck's misrepresentations regarding the condition of the property. However, the jury found that Eck was liable to Bisson under c. 21E in the amount of $185,000 as reimbursement for cleanup costs and $150,000 for diminution in the value of the property as a result of Eck's release of hazardous materials. Judgment entered thereon. We affirmed the judgment on July 10, 1996. See Bisson v. Eck, 40 Mass. App. Ct. 942, 943-944 (1996).

On June 6, 1996, Eck brought this complaint against Kellem and Godbout, later amending it to include his wife as a plaintiff. The complaint against Kellem contained counts for breach of fiduciary duty (Count I), attorney malpractice (Count II), unfair trade practices under G. L. c. 93A (Count III), and negligent infliction of emotional distress (Count IV).

Following various pleadings of the parties which are of no consequence to this appeal, Kellem, on June 10, 1998, filed a motion for summary judgment on the ground that the Ecks' claims were barred by the three-year statute of limitations applicable to Counts I, II, and IV, see G. L. c. 260, § 4, and by the four-year statute of limitations for c. 93A claims, applicable to Count III, see G. L. c. 260, § 5A.⁵

A judge of the Superior Court denied Kellem's motion on the ground that Eck did not have notice that the provisions of the sale agreement were negligently drafted, and caused him harm, until judgment entered against Eck on Bisson's c. 21E claim.

Kellem argues that the statutes of limitations began to run in June of 1989 when the Bisson suit was entered, and that all the claims against him are time-barred because Eck did not file the present action until June 6, 1996. The Ecks, on the other hand, argue in essence that the statute of limitations began to run on January 13, 1994, when judgment entered in Bisson's favor, because that event put Eck on notice that he suffered appreciable harm due to Kellem's negligent drafting of the sale agreement. Alternatively, they argue the doctrine of continuing representation. See, e.g., Murphy v. Smith, 411 Mass. 133, 137-138 (1991).⁶

Discussion. In Bowen v. Eli Lilly & Co., 408 Mass. 204, 208 (1990), the court summarized the conditions generally that must be satisfied to start the statute of limitations running: "[W]e . . . require that a plaintiff have (1) knowledge or sufficient notice that she was harmed and (2) knowledge or sufficient notice of what the cause of harm was." There is no requirement that the plaintiff have notice of a breach of duty by the defendant, ibid., but there must be notice of a causal relationship between the harmful event attributed to the defendant (whose negligence we may assume, see note 6, supra) and the harm suffered by the plaintiff. See International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass. App. Ct. 215, 218 (1990) ("Notice here refers not to discovery of every fact necessary to prevail on the claim, but rather to discovery of the plaintiff's injury as causally connected to the defendant's negligence").

The question, then, is whether it was the commencement of the Bisson suit, or the judgment therein, that was the first event reasonably likely to put Eck on notice that Kellem's sale agreement may have caused his injury from the Bisson suit. "The accrual dates of the c. 93A claims are established by the same principles as govern the determination of the underlying actions." Hanson Hous. Authy. v. Dryvit Sys., Inc., 29 Mass. App. Ct. 440, 448 (1990). See Bowen v. Eli Lilly & Co., supra at 207 ("The important point is that the statute of limitations starts to run when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury"). See also Hendrickson v. Sears, 365 Mass. 83, 89 (1974) ("a cause of action accrues on the happening of an event likely to put the plaintiff on notice").

While cases such as Massachusetts Elec. Co. v. Fletcher, Tilton & Whipple, P.C., 394 Mass. 265, 268 (1985), hold that the statute of limitations begins to run when legal expenses are first incurred while defending a suit brought as a result of the defendant's negligence, see also International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., supra at 219, this case does not fall within that rule.

Godbout's affidavit reveals, as we have noted, Kellem's insistence, in his conversations with Godbout, that the sale agreement would protect Eck against any c. 21E claim asserted by Bisson. Further, Kellem persuaded both Eck and Godbout himself that the sale agreement would perform exactly as Kellem had promised Eck.⁷

That Godbout and Eck were so persuaded may reasonably be inferred -- favorably to Eck -- from the fact that Godbout did not bring in Kellem as a third-party defendant under Mass.R.Civ.P. 14, as amended, 385 Mass. 1216 (1982), see Maddocks v. Ricker, 403 Mass. 592, 601 (1988), nor did he give Kellem...