Hendrickson v. Sears, Civ. A. No. 71-2355.
| Decision Date | 03 May 1973 |
| Docket Number | Civ. A. No. 71-2355. |
| Citation | 359 F. Supp. 1031 |
| Parties | Howard D. HENDRICKSON and Marilyn J. Hendrickson v. Clark S. SEARS. |
| Court | U.S. District Court — District of Massachusetts |
Daniel J. Gleason, Nutter, McClennen & Fish, Boston, Mass., for plaintiff.
Lionel H. Perlo, Jacob J. Locke, Ficksman & Conley, Boston, Mass., for defendant.
This is a malpractice action brought by plaintiffs against Attorney Clark S. Sears. Plaintiffs allege in their complaint that they obtained defendant Sears to perform a title search on certain real estate, and, on April 25, 1961, defendant certified to the plaintiffs that the title was "valid, clear and marketable." As a result of defendant's certification, plaintiffs took title to the property, and on June 15, 1970 they were notified by prospective buyers of the property that it was encumbered. As a result, plaintiffs brought this action by diversity of citizenship in this Court seeking money damages on grounds that they have been unable to obtain a buyer for the property and that the value of the property has been diminished.
Defendant then moved to dismiss on the basis that the statute of limitations had run as to plaintiffs' cause of action.
After due consideration of oral arguments heard on April 20, 1973 and briefs filed by the parties, the Court ORDERS that defendant's motion to dismiss be, and is allowed.
It is clear that an action for malpractice can be considered either in tort or in contract. If viewed as a contract action, Massachusetts General Laws, Ch. 260, § 2, is applicable, and the statute of limitations is six (6) years. However, if a tort action is considered, then under Mass. G.L. c. 260, § 2A, a two-year statute of limitations is in effect. Regardless of whether this action is classified in contract or in tort, this Court finds that the statute of limitations has run as to plaintiffs' claim.
Plaintiffs' cause of action arose at the time that the alleged malpractice occurred on April 25, 1961. This suit was filed on October 27, 1971, over ten years after the cause arose. Plaintiffs argue that, since they did not discover the malpractice until June 15, 1970, the statute does not begin to toll until that time, and asks the Court to adopt the so-called "discovery rule" in determining when the action occurred.
This Court must follow Massachusetts decisional law, however, and does not have the option to apply the "discovery rule" to the present case. Rather, the Court is bound to follow Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966), in which it was held that the period of limitations for actions...
To continue reading
Request your trial
-
Hendrickson v. Sears
...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 ap......
-
Bose Corp. v. Consumers Union of United States, Inc.
...been decided by the Supreme Judicial Court of Massachusetts. In Hendrickson v. Sears, 495 F.2d 513 (1 Cir. 1974), the district court, 359 F.Supp. 1031, had ruled that a cause of action against an attorney for negligent certification of a real estate title arises on the date of the act of ma......