Republic Oil Corp. v. Danziger

• Decision Date: 29 February 1980
• Citation: 9 Mass.App.Ct. 858,400 N.E.2d 1315
• Parties: REPUBLIC OIL CORPORATION v. Ronald H. DANZIGER.
• Court: Appeals Court of Massachusetts

Page 1315

400 N.E.2d 1315

9 Mass.App.Ct. 858

REPUBLIC OIL CORPORATION v. Ronald H. DANZIGER.

Appeals Court of Massachusetts, Hampden.

Argued Oct. 17, 1979.

Decided Feb. 29, 1980.

Gerard L. Pellegrini, Springfied, for defendant.

Arthur W. Price, Springfield, for plaintiff.

Before PERRETTA, ROSE and DREBEN, JJ.

RESCRIPT.

The judge was correct in allowing the plaintiff's motion for summary judgment (Mass.R.Civ.P. 56) on the issue of the defendant's liability to the plaintiff for negligent certification of title, and in entering judgment for the plaintiff in the amount of $18,253.64 after a hearing on the issue of damages. The undisputed facts derived from the pleadings, affidavits, and depositions are that the defendant, an attorney, was engaged to represent the plaintiff in the purchase of certain real property, to conduct a title examination, and to secure the discharge of all encumbrances on the property. The plaintiff purchased the property in reliance on the defendant's representation that all obligations and encumbrances had been cleared and that the plaintiff would receive a clear title. The property was transferred to the plaintiff in consideration of payment by the plaintiff of certain outstanding obligations of the grantor, such as indebtedness owed on the first mortgage on the property, liens, and back taxes, and the discharge of substantial indebtedness owed by the grantor to the plaintiff. The plaintiff secured a mortgage from Community Savings Bank for $220,000, the amount necessary to pay these obligations. Prior to the closing, however, the defendant had discovered a financing statement recorded pursuant to G.L. c. 106, §§ 9-401 through 9-403, in the Hampden County Registry of Deeds by the Springfield Gas Light Company covering heating and cooling equipment installed on the subject property. He failed to secure a discharge or subordination of the lien, of which the financing statement gave notice, nor did he bring the fact of the lien to the plaintiff's attention. The amount of the lien, added to the above-stated purchase price, would have exceeded the maximum amount that the plaintiff was willing to pay for the property. More than a year after closing, a demand was made on the plaintiff for payment of the lien. The plaintiff's mortgagee, Community Savings Bank, claimed a breach of its mortgage when it discovered the prior claim on the property, and commenced foreclosure proceedings. To avoid foreclosure, the plaintiff paid the lien ($17,234.21) and the bank's foreclosure costs ($1,019.43).

1. The defendant argues on appeal that material facts exist which entitle him to a trial on the issue of his liability, such as the fact that the plaintiff, under the terms of an alleged oral agreement with the grantor of the property, was obligated to pay off all encumbrances, and could later sell the property back to the grantor and be...