Kent v. Dupree
| Citation | 429 N.E.2d 1041,13 Mass.App.Ct. 44 |
| Parties | William B. KENT et al., 1 trustees, v. Thomas H. DUPREE et al. 2 |
| Decision Date | 11 January 1982 |
| Court | Appeals Court of Massachusetts |
Susan H. English, Boston, for plaintiffs.
Michael S. Greco, Boston, for Thomas H. Dupree & others.
James F. O'Brien, Concord, for BayBank Harvard Trust Co.
Before HALE, C. J., and BROWN and SMITH, JJ.
The plaintiffs, trustees of the Leonard Trust, brought this action on April 4, 1978, claiming fraudulent misrepresentations by the defendants. After responsive pleadings were filed, the defendants moved for summary judgment. Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). One of the grounds cited in the motions was the statute of limitations. A judge allowed the motions, and the plaintiffs appealed from the ensuing judgment. We affirm the judgment.
Under Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Community Natl. Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). In the instant case the judge had before him the pleadings, answers to interrogatories and a deposition of the attorney representing the plaintiffs at the time of the alleged misrepresentations. 3 From these papers, the following uncontroverted material facts emerge. The plaintiffs, as trustees of the Leonard Trust, leased land to Putnam Associates (Putnam), a limited partnership. Under the terms of the lease, Putnam agreed to construct an office building on the land and the trust agreed to subordinate its fee interest in the land to mortgages obtained by Putnam from BayBank Harvard Trust Company (bank) for construction and permanent financing of improvements to the property. It was agreed in the lease that the trust's subordination of its fee to Putnam's financing would not exceed the development costs for the construction of the building. According to the lease, development costs could include "expenses for site work, construction, legal, architectural and engineering fees, mortgaging costs and fees, leasing and construction management fees and all other items normally capitalized as development costs." On May 24, 1973, a mortgage and security agreement were executed whereby the trust subordinated its fee to secure payment to the bank of a loan in the amount of $1,580,034. On three subsequent occasions, the last being January 23, 1975, 4 the trust agreed to increase the loan amount to which its fee was subordinated in order to cover additional development costs that Putnam stated that it had incurred.
The complaint focused on the events that occurred on January 23, 1975. The complaint alleged that the trust increased its subordination of its fee by $420,000 on that date in reliance upon false representations made by Putnam and the bank that development costs had further increased by that amount when, in fact, Putnam had wrongfully included in the development costs money used by Putnam to obtain other property for purposes of providing parking for the office building constructed by Putnam. There is no dispute that the alleged misrepresentation if it occurred took place on January 23, 1975. On that date, the undisputed facts show that the attorney for Putnam submitted to the attorney for the trust a request for an increase of its subordination by $420,000. In the written request, it was specifically mentioned that the additional $420,000 would be used "in connection with the building and attendant parking areas being developed" by Putnam (emphasis supplied). On January 23, 1975, the plaintiffs were represented by an attorney with over fifty years of experience in real estate law. In addition, the attorney was a trustee of the trust. He was actively involved in the project and was familiar with all the provisions of the lease. He was aware of the definition of "development costs" in the lease and had on one prior occasion challenged the inclusion of an item...
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...("cause of action for deceit accrues when the plaintiff knew or should have known of the misrepresentation"); Kent v. Dupree, 13 Mass.App.Ct. 44, 429 N.E.2d 1041, 1043 (1982) ("cause of action accrues at the time a plaintiff learns or reasonably should have learned of the misrepresentation"......
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