Page v. Frazier

• Decision Date: 26 January 1983
• Citation: 388 Mass. 55,445 N.E.2d 148
• Parties: Robert G. PAGE et al. 1 v. Charles E. FRAZIER, Jr., et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 148

445 N.E.2d 148

388 Mass. 55

Robert G. PAGE et al. ¹ v. Charles E. FRAZIER, Jr., et al. ²

Supreme Judicial Court of Massachusetts Barnstable.

Argued Sept. 17, 1982.

Decided Jan. 26, 1983.

Peter M. Lauriat, Boston (James H. Wexler, Boston, with him), for plaintiffs.

Erik Lund, Boston (H. Sarkis Terkamian, Wellfleet, with him) for Charles E. Frazier, Jr.

Richard J. Cain, Harwich Port, for Cape Cod Five Cents Sav. Bank.

Before WILKINS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The plaintiffs appeal from an adverse decision on the merits of their claims of negligent misrepresentation against defendants Attorney Charles E. Frazier, Jr., ³ and the Cape Cod Five Cents Savings Bank (bank), which retained Frazier to perform a real property title examination on property being purchased by the plaintiffs. A judge of the Superior Court, who heard the case without a jury, dismissed the complaint after making comprehensive findings of fact and rulings of law, summarized below. ⁴ We granted the plaintiffs' motion for direct appellate review. We affirm the judgments.

The plaintiffs, husband and wife, purchased a house in Wellfleet in 1964. Beginning in 1967, the plaintiff Robert G. Page (Page) sought to ascertain the ownership of an abutting, unimproved parcel of slightly over 1.1 acres; Page was interested in acquiring the land primarily for protection and reasons of privacy, as well as for investment purposes. ⁵ In November, 1972, Page entered into an agreement to purchase the parcel for $14,500, from heirs of Lorenzo Dow Baker (sellers). For many years the Baker family had owned and conveyed land in Wellfleet extensively. Page applied to the bank for an $8,700 mortgage loan on November 21, 1972. The bank's mortgage application form included the following language: "(1) The responsibility of the attorney for the mortgagee, is to protect the interest of the mortgagee, notwithstanding the fact that (a) the mortgagor shall be obligated to pay the legal fees of said attorney, and (b) the mortgagor is billed for such legal services by the mortgagee. (2) The mortgagor may, at his own expense, engage an attorney of his own selection to represent his own interests in the transaction." ⁶

Page's application was approved on November 22, 1972. Thereafter the bank retained Frazier, an experienced conveyancing attorney, and a vice-president and trustee of the bank as well, to certify the title to the property and to draft the necessary legal instruments. The judge found that it was the bank's practice at that time to require an attorney so retained to certify a good, clear, marketable title. The bank also requested from the sellers' attorney, and received on or about December 8, 1972, a general list of title references to deeds, probate decrees, and wills to assist Frazier in his examination of the title. In February, 1973, the sellers' attorney forwarded to the bank a proposed deed without title references. When executed ultimately in April, 1973, the quitclaim deed from the sellers to the plaintiffs was in the same form as the proposed deed. The title references in the December 8 communication from the sellers' attorney were photocopied and appended to the quitclaim deed and were recorded with it, on April 17, 1973, by Frazier, or at his direction. In his title examination Frazier had also relied on five separate survey plans of abutting owners and an unrecorded survey plan prepared in 1926 which, upon his research, yielded a reference to a deed to Lorenzo Dow Baker in 1900. Frazier searched that chain of title from 1926 onward. The 1900 deed, however, had no connection with the subject locus, and the property which it described had been conveyed out in 1909. A survey plan prepared for the sellers in January, 1973, and available to Frazier during his examination, referred to a 1932 deed which the parties stipulated during trial did not describe the subject locus.

The judge found that Page was not "particularly conversant with the intricate elements or ramifications of title examinations. However, Robert Page [was] a high-level executive possessing concomitant intelligence, ability and knowledge of business transactions. [He had] both purchased and sold real property for his personal use on a number of occasions prior to the transaction in issue." Page had engaged Frazier in 1967 to review his will and had from time to time inquired of Frazier as to possible real estate sites in Wellfleet. In purchasing property prior to 1972, Page had retained another attorney.

With respect to the instant transaction, in addition to the mortgage application form, the following documents involving Page or Frazier were in evidence: (1) a letter from Frazier to Page, dated March 3, 1973, requesting the plaintiffs' signatures on an enclosed proposed mortgage deed, mortgage note, and disclosure form showing a bank attorney's charge of $125 for recording and for title certification, payable by the plaintiffs; ⁷ (2) a letter from Page to Frazier, dated March 6, 1973, indicating that all forms forwarded on March 3 had been signed and were being returned; (3) a letter from Page to Frazier, dictated on March 28, 1973, enclosing a check for the balance of the purchase price, and adding: "I realize that my check is not certified but I thought it would clear the bank before April 2 when I am to close this transaction officially.... I would appreciate it very much if you would have the deed properly recorded for me. I will not be represented by an attorney in this transaction"; (4) a letter from Frazier to a vice-president of the bank, dated April 19, 1973, certifying that he had examined the record title to the parcel and had recorded the mortgage note on April 17, 1973, also stating that "[t]itle at the time of said recording was free and clear of any and all encumbrances of record," and requesting that a check for the mortgage loan proceeds be forwarded "payable to me as Attorney for the Pages." The bank assumed this letter indicated a good, clear, marketable title. A copy of the letter was sent to Page by the bank. In July, 1974, Page entered into an agreement of first refusal on the parcel with Stanford and Dorothy Ross. In December, 1975, the Pages and the Rosses executed a purchase and sale agreement. When the prospective buyers' attorney was unable to find good record and marketable title, Page contacted Frazier, who attempted without success to obtain a release of the Rosses' right of first refusal on the parcel. An attorney subsequently retained by the bank and a title researcher engaged by Page's attorney could not find title in the plaintiffs from the reference on their quitclaim deed. The title researcher determined that the deed reference upon which Frazier had relied did not convey the subject locus as a matter of record. The plaintiffs then commenced this action against Frazier and the bank.

The judge found that no record title had been established in the plaintiffs and that no good, clear, marketable title in them was ascertainable, based on Frazier's examination. She further found that, although the plaintiffs had shown by a fair preponderance of the evidence that Frazier was negligent in the performance of his title examination, they had failed to show the existence of an attorney-client relationship between them and Frazier. ⁸ As she found that Frazier was an independent contractor retained by the bank to represent its interests, the judge declined to impute his negligent performance to the bank, which she found had neither expressly nor impliedly warranted title to Page. On appeal, the plaintiffs argue that an attorney-client relationship did exist between Frazier and them; that even if such a relationship did not exist, their action for negligent misrepresentation against Frazier should not be barred; that Frazier's negligence must be imputed to the bank; and that the bank negligently misrepresented to them the sufficiency of title to the parcel.

We consider first the plaintiffs' contention that there is a statutory basis for their claim against Frazier. We recognize that the Legislature has modified the common law, to a certain extent, through the provisions of G.L. c. 93, § 70. As enacted by St.1972, c. 547, § 1, and in effect at the time of the present transaction, § 70 provided in material part: "Whenever, in connection with the granting of any loan or credit to be secured by a mortgage on real estate improved with a dwelling designed to be occupied by not more than four families and occupied or to be occupied in whole or in part by the mortgagor, the mortgagor is required or agrees to pay or to be responsible for any fee or expense charged or incurred by any attorney acting for or on behalf of the mortgagee, the mortgagor or his attorney shall be given a copy of any certification of title to the mortgaged property rendered by the mortgagee's attorney, and such certification shall be deemed to have been rendered for the benefit of the mortgagor to the same extent as it is for the mortgagee." The Legislature has twice amended § 70, most recently in 1980, and has left unchanged the class of mortgagors protected by the statute. The plaintiffs urge us to extend the principle of G.L. c. 93, § 70, to the case before us. We can find, however, no suggestion or implication in the clear language of the statute that it is intended to be applicable to purchasers of unimproved land. The judge correctly declined to apply G.L. c. 93, § 70, for the benefit of the plaintiffs.

We turn next to the plaintiffs' argument that an attorney-client relationship existed between them and Frazier. Although they have not specifically contended that the judge's finding of no express or implied attorney-client relationship is unsupported by or contrary to the evidence, we consider their argument in that light. Under Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), a judge's finding is not to be set aside "unless clearly...