Tagliente v. Himmer

• Decision Date: 09 September 1991
• Docket Number: No. 91-1450,91-1450
• Parties: Teresa TAGLIENTE, Trustee of the Tagliente Family Trust, Plaintiff, Appellant, v. David C. HIMMER, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

949 F.2d 1

Teresa TAGLIENTE, Trustee of the Tagliente Family Trust Plaintiff, Appellant, v. David C. HIMMER, Defendant, Appellee.

No. 91-1450.

United States Court of Appeals, First Circuit.

Heard Sept. 9, 1991.

Decided Nov. 13, 1991.

Kevin J. O'Connor, with whom Philip M. Cronin and Peabody & Arnold, Boston, Mass., were on brief for plaintiff, appellant.

William H. Clancy, with whom Thomas D. Burns, Anne E. Sargeant, Joseph A. Hearst and Burns & Levinson, Boston, Mass., were on brief for defendant, appellee.

Before TORRUELLA, Circuit Judge, and COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Circuit Judge.

This appeal arises from an action brought by Teresa Tagliente ("Tagliente"), trustee of the Tagliente family, charging David C. Himmer with fraudulent misrepresentation, and unfair and deceptive acts and practices in violation of Mass.Gen.L. ch. 93A. The fraudulent misrepresentations relate to the sale of a parcel of land located in Methuen, Massachusetts, to Tagliente on July 31, 1986. The United States District Court for the District of Massachusetts granted appellee's motion for summary judgment on the fraudulent misrepresentation claim on the basis that the appellant's claim was time barred. That court also granted summary judgment on the chapter 93A claim finding insufficient evidence to support such action. We affirm.

I. FACTS

Appellant and appellee entered into an agreement on or about May 16, 1986 for the exchange of 10 1/2 acres of land located at the intersection of Interstate 495, Route 113 and Route 213, 143 Pleasant Valley Street, Methuen, Massachusetts. The appellant was represented by her husband, Joseph Tagliente, during all of the transactions in question.

Joseph Tagliente is the President of the Tage Corporation. In that capacity, he has participated in the purchase, sale, and development of several pieces of property on behalf of the Tage Corporation. He was familiar with the process of developing property, including the use of architect's drawings, as well as, engineering and topographical studies. Moreover, Mr. Tagliente was familiar with wetlands, since he had developed a Burger King in Milford, Massachusetts on a wetlands site. In that project Mr. Tagliente had helped to select the site, obtain the necessary permits, and obtain a topographical survey for the project. Joseph Tagliente learned of the Methuen property through his real estate agent in April, 1986. Himmer, together with architect Brian Libby, created a brochure describing the property prior to placing it on the market. The brochure included a color aerial photograph of the property, facts about the property and maps of the surrounding area. In addition, the brochure included two architectural drawings of proposed design schemes depicting ideas for development of the property for office or industrial use. The page was entitled "Proposed Design Schemes" and indicated that: "All these items should be tested by the individual user and presented to the Town of Methuen for their review and approval." Himmer distributed the brochure and told people that he was interested in selling the property.

Joseph Tagliente, his real estate agent, and the defendant had walked the property together prior to the sale. The purchase and sale agreement was drafted by appellant's attorney. In connection with the transaction, said attorney wrote to the Town of Methuen to obtain copies of zoning maps, by-laws and ordinances, Planning Board regulations and Conservation Commission regulations. The May 16, 1986 agreement gave appellant the right to have engineers or inspectors inspect the property on her behalf, and, pursuant to Article III, gave appellant and her contractors a right of reasonable access to the property. The agreement also provided that the property was to be "conveyed to the appellant by a good and sufficient Quitclaim Deed" and "that said Deed shall convey a good and clear record and marketable title thereto, free from encumbrance, except: A. Zoning regulations and ordinances of any governmental body having jurisdiction over the premises."

Article XIII of the May 16, 1986 agreement provided that the agreement "... is to take effect as a sealed instrument, [and] sets forth the entire contract between the parties, is binding upon and inures to the benefit of the parties hereto, their respective heirs, devises, executors, administrators, successors and assigns, and may be cancelled, modified or amended only by a written instrument executed by the parties hereto."

Appellant purchased the property for the purpose of building a hotel and/or a restaurant. No steps were taken to investigate or develop the property until mid-1988 because she was involved with the development of another site. When appellant began the development of this property in mid-1988, she decided the property was not suitable for a hotel because of its lack of visibility and accessibility. Attempts to sell the property were unsuccessful and an engineer was retained for the first time to perform tests and prepare a report on the use of the land for alternative purposes. These efforts also failed as the engineer concluded in 1988 that only 4.4 acres of the property were buildable.

A complaint was filed on March 9, 1990 in Suffolk Superior Court. It alleges four representations by the appellee which were false and upon which the plaintiff's husband relied. The misrepresentations were as follows:

(1) The extent of the water and wetlands present on the property would satisfy the open space requirements of local zoning laws and would not reduce in any way the buildable area of the property;

(2) The property had not been previously marketed for sale by Himmer;

(3) The property would have great access to and visibility from major highways, including Interstate Route 495; and

(4) There were other buyers ready and willing to pay more than the agreed upon $1.1 million purchase price.

II. STANDARD OF REVIEW

Summary judgment is proper when there is "no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We consider the undisputed facts in the light most favorable to the nonmovant. See, e.g., Kennedy v. Josephthal & Co., Inc., 814 F.2d 798, 804 (1st Cir.1987). Our review of legal decisions is plenary.

III. LEGAL ANALYSIS

An action for fraudulent misrepresentation of material facts in a transaction is an action sounding in tort. Kent v. Dupree, 13 Mass.App. 44, 429 N.E.2d 1041, 1043 (1982). According to Mass.Gen.L. ch. 260, § 2A, "actions of tort ... shall be commenced only within three years next after the cause of action accrues." We must determine whether the undisputed facts are sufficient to hold, as a matter of law, that the appellant's action is barred by the applicable statute of limitations.

Generally, an action in tort accrues at the time of the plaintiff's injury, Joseph A. Fortin Const., Inc. v. Massachusetts Housing Finance Agency, 392 Mass. 440, 442, 466 N.E.2d 514, 516 (1984), in this case at the time of the sale, July 31, 1986. Plaintiff filed her complaint on March 9, 1990, three years and seven months after she purchased the property. Therefore, according to the statute of limitations provision cited above, the plaintiff's action is time barred.

A statute of limitations legislatively established will not be easily overlooked. As the United States Supreme Court has stated a number of times, statutes of limitations represent "a judgment that it is unjust to fail to put an adversary on notice to defend within a specified period of time and the right to be free of stale claims in time comes to prevail over the right to prosecute them." United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979) (citing Order of RailRoad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944)). In Kubrick the Court continued:

These statutes are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.

Id. Essentially, fairness to the defendant, and sound judicial administration require that at some point litigation over a particular controversy must stop. See Restatement (Second) of Judgments § 19, comment (a), at 161-62.

Nevertheless, the jurisprudence has recognized an exception to the general rule established by the statute of limitations in actions which fall under the so called "discovery rule." Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Under this rule, the action accrues when the injured party knew or, in the exercise of reasonable diligence, should have known, the factual basis for the cause of action. Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123, 130 (1st Cir.1987). The standard set forth by the discovery rule is an objective one. The action accrues when the injured party "reasonably should have known the factual basis for the cause of the action." In order for the statute of limitations to be tolled pursuant to the discovery rule, the factual basis for the cause of action must have been "inherently unknowable" at the time of the injury. See, e.g., Fidler v. Eastman Kodak Co., 714 F.2d 192 (1st Cir.1983); Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984).

Appellant claims that the principles established by the discovery rule warrant a delayed accrual in this case since she did not have knowledge of the appellee's fraudulent misrepresentations until some time in 1988. Hence, we must determine whether there is any genuine factual dispute that the appellant knew, or in the exercise of reasonable diligence should have known that the appellee's...