Shehan v. Schlegel

• Citation: 999 N.E.2d 503 (Table),84 Mass.App.Ct. 1126
• Decision Date: 23 December 2013
• Docket Number: No. 13–P–459.,13–P–459.
• Parties: Jeremiah SHEHAN v. Paul SCHLEGEL.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 1126
999 N.E.2d 503 (Table)

Jeremiah SHEHAN
v.
Paul SCHLEGEL.

No. 13–P–459.

Appeals Court of Massachusetts.

December 23, 2013.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff brought claims for deceit and violation of G.L. c. 93A based on his allegation that the defendant had provided a false interrogatory answer in a separate action. The issue is whether the complaint properly was dismissed. We conclude that it was. “In reviewing the allowance of a motion to dismiss under Mass.R.Civ.P. 12(b)(6), [365 Mass. 754 (1974),] we examine the same pleadings as the motion judge and therefore proceed de novo.” Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 373 (2012).

The complaint alleges violation of both §§ 9 and 11 of c. 93A, despite the fact that relief under these sections is mutually exclusive. See Giuffrida v. High Country Investor, Inc., 73 Mass.App.Ct. 225, 236–237 (2008). Setting that problem to the side, “G.L. c. 93A applies only to actions taken in the course of ‘trade or commerce,’ First Enters., Ltd. v. Cooper, 425 Mass. 344, 347 (1997), and has never been read so broadly as to establish an independent remedy for unfair or deceptive dealings in the context of litigation, with the statutory exception as to those ‘engaged in the business of insurance.’ See Framingham Auto Sales, Inc. v. Workers' Credit Union, 41 Mass.App.Ct. 416, 418 (1996).” Morrison v. Toys “R” Us, Inc., 441 Mass. 451, 457 (2004). Because the c. 93A claim was predicated solely and entirely on the allegation that the defendant provided a false interrogatory answer, it properly was dismissed. Among other things, deceit requires proof that the plaintiff relied to his detriment on the alleged misrepresentation.¹ The complaint alleges that after receiving the defendant's interrogatory responses (dated October 19, 2011), the plaintiff subpoenaed records of Citizens Bank twelve days later, which he claims showed the interrogatory response to be false. It is difficult to conceive how this sequence of events could satisfy the requirement of actual reliance.

Even were we to set that problem aside,...