Pruner v. Clerk of Superior Court

• Decision Date: 14 January 1981
• Citation: 415 N.E.2d 207,382 Mass. 309
• Parties: . 1 Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 207

415 N.E.2d 207

382 Mass. 309

Robert A. PRUNER v. CLERK OF the SUPERIOR COURT et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 3, 1980.

Decided Jan. 14, 1981.

Robert H. Monheimer, Boston, for plaintiff.

George M. Ford, Boston, for defendants.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

BY THE COURT.

This is a civil action commenced in the Supreme Judicial Court for the county of Suffolk on August 1, 1978. On January 12, 1979, the defendants filed motions to dismiss for failure to state a claim on which relief may be granted, stating independent and alternative grounds therefor. After a hearing, a single justice of this court allowed the motions, and on April 16, 1980, judgment was entered dismissing the complaint. The plaintiff now appeals from the judgment of dismissal entered in favor of the defendants Concannon and Hurley. ² We conclude that there was no error.

The following facts, which do not appear to be in dispute, are alleged in the plaintiff's complaint and briefs. On March 6, 1972, the plaintiff Pruner commenced an action in the Superior Court for Norfolk County against James A. Ramsey. In connection with that action, Pruner made an attachment of Ramsey's real estate in the amount of $20,000 and recorded the attachment in the registry of deeds. On February 5, 1973, a partial judgment was entered in favor of Pruner on his demurrer to a declaration in set-off that had been filed by Ramsey. On April 26, 1973, several years before any decision was rendered in Pruner's suit against Ramsey, the defendant Hurley issued a certificate of judgment erroneously indicating that a judgment had been entered in Ramsey's favor. ³ Ramsey filed this certificate of judgment at the registry of deeds, resulting in the discharge of Pruner's real estate attachment on May 30, 1973. On August 15, 1974, Ramsey, without notifying Pruner, conveyed the real estate to a bona fide purchaser for value. On August 9, 1977, judgment was entered for Pruner in his suit against Ramsey, and execution issued in the amount of $16,666.70. On October 7, 1977, a sheriff attempted, unsuccessfully, to levy upon Ramsey's real estate that had been the subject of the attachment. Not until that date did Pruner become aware of the issuance of the erroneous certificate of judgment in favor of Ramsey.

On August 1, 1978, Pruner sued the defendants Hurley and Concannon, alleging that he sustained damages as a result of their negligence in causing the erroneous certificate of judgment to be issued. ⁴ The single justice granted the defendants' motion to dismiss the complaint on the ground that the suit was barred by the three-year statute of limitations, G.L. c. 260, § 2A. Additional grounds for dismissal asserted by the defendants are that the plaintiff's suit is barred by the common law doctrine of governmental immunity and by the Massachusetts Tort Claims Act, G.L. c. 258, as appearing in St.1978, c. 512, § 15, whichever governs.

The plaintiff argues that the single justice was in error in his conclusion that the suit is barred by the statute of limitations. Even if we assume that the statute of limitations poses no bar, however, and that the suit is governed by the Massachusetts Tort Claims Act, we conclude that the complaint still must be dismissed, under the terms of that act.

1. The Statute of Limitations.

The defendants first contend that because the alleged negligent conduct on the part of Hurley occurred in April, 1973, more than five years before the plaintiff commenced this action on August 1, 1978, the action is barred by the three-year statute of limitations, G.L. c. 260, § 2A. ⁵ According to this argument, the plaintiff's cause of action "accrued" at the time of the allegedly negligent acts by the defendants, even though the plaintiff was then unaware that the acts had occurred.

On the other hand, the plaintiff relies upon a variety of tort cases in which we have concluded that, unless the Legislature specifies otherwise, a plaintiff's cause of action does not necessarily accrue when the defendant commits the negligent act, but rather accrues "on the happening of an event likely to put the plaintiff on notice." Franklin v. Albert, --- Mass. ---, --- - --- ^a, 411 N.E.2d 458 (1980) quoting from Hendrickson v. Sears, 365 Mass. 83, 89-90, 310 N.E.2d 131 (1974), and cases cited. In Franklin, for example, we held that a medical malpractice action accrues when the plaintiff learns, or reasonably should have learned, that he has been harmed by the defendant's negligent conduct. --- Mass. at ---, 411 N.E.2d 458. ^b

In meeting this line of cases, the defendants contend that the plaintiff's action is barred because the errors were "patent on the public record." In rebuttal, the plaintiff argues that neither the incorrect docket entry, nor the recording at the registry of deeds of the erroneous certificate of judgment, constituted sufficient notice to the plaintiff so as to cause the statute of limitations to run. The plaintiff argues that he had no duty to supervise or check the docket entry of February 5, 1973; that he had the right to assume that the official actions of the clerk's office would be performed correctly; ⁶ and that he was not required to check periodically at the registry of deeds to make sure that his real estate attachment had not been improperly discharged during his suit against the owner of the real estate. ⁷ To require such supervision of official court processes, says the plaintiff, would be to impose an unwarranted burden on litigants and their attorneys.

We need not and do not reach the statute of limitations arguments of the plaintiff. If his argument on this issue is unavailing, his complaint must of course be dismissed. However, even if we accept his argument and conclude that his cause of action accrued on October 7, 1977, the date he first learned or reasonably should have learned of the harm to him, his complaint, nonetheless, must be dismissed under the Massachusetts Tort Claims Act, G.L. c. 258, as appearing in St.1978, c. 512 (the Act), which applies to causes of action against the government and its officials arising on or after August 16, 1977. St.1978, c. 512, § 16. ⁸

2. Massachusetts Tort Claims Act.

The Act makes "public employers" liable for losses caused by the negligence of "public employees" acting in the scope of their employment. G.L. c. 258, § 2. The employee himself is not liable for his own negligence, however, unless he fails to cooperate with his employer in defending a suit brought against the employer. Id. ⁹ Whether the defendants may be characterized as public employers or public employees thus determines whether or not they are immune from liability.

"Public employees" are defined as "elected or appointed, officers or employees of any public employer." G.L. c. 258, § 1, as appearing in St.1978, c. 512, § 15. Included within the definition of "public employer" are "the commonwealth and any county, city, town or district, and any department, office, commission, committee, council, board, division, bureau, institution or agency thereof (which) exercises direction and control over the public employee." Id. ¹⁰ Under these definitions, both defendants seem more readily classifiable as employees simply because they are individuals, elected or appointed officers, rather than political subdivisions or other governmental entities. Under this reasoning, their employer at the relevant date here was the county, see G.L. c. 221, § 94, as amended through St.1974, c. 726, § 1, which should have been made the defendant in this action. One could argue, however, that the word "office" in the definition of public employer includes the office of the clerk of Norfolk County, and hence includes defendant Concannon who, at the time of the conduct complained of, exercised "direction and control" over defendant Hurley. Nonetheless, we are inclined to consider these defendants as public employees, in view of the apparent purpose of the Act to establish governmental immunity within certain limits, making the government and its subdivisions liable while ensuring immunity for individuals working within the government.

The plaintiff's action is barred for reasons independent of the question of immunity for these particular defendants, ¹¹ for even if the defendants are not immune from suit under G.L. c. 258, § 2, the plaintiff has failed to comply with the statutory prerequisites for filing suit contained in G.L. c. 258, § 4. Before any civil action for damages may be brought against a public employer, the claimant must present his claim to the employer's executive officer; only if the claim is denied, or if the executive officer fails to deny the claim within six months of its presentment, may the claimant file a civil suit. ¹² The claimant must present his claim to the executive officer "within two years after the date upon which the cause of action arose." Id. In this case, assuming the cause of action arose on October 7, 1977, the plaintiff had until October 7, 1979, to comply with the requirements of G.L. c. 258, § 4. For no discernible reason, he has failed to do so. Nor has he suggested any reason why we should interpret § 4 in a manner other than that indicated by the plain meaning of the section: i. e., that no civil action under c. 258 can be maintained if the claimant has failed to present his claim within two years after that claim arose. The lack of compliance with § 4 was argued by the defendants (and ignored by the plaintiff) not only in their brief on appeal to this court, but also in their memorandum in support of their motion to dismiss filed on January 12,...