JOHN C. SALIN & another vs. ROBERT E. SHALGIAN & another.

JOHN C. SALIN & another [Note 1] vs. ROBERT E. SHALGIAN & another. [Note 2]

18 Mass. App. Ct. 467

February 15, 1984 - August 9, 1984

Plymouth County

Present: BROWN, PERRETTA, & WARNER, JJ.

The buyers of a parcel of residential land, seeking damages from a savings bank and an attorney for alleged negligence and misrepresentation in connection with a title search and certification, had notice of their claim at least as of the date the buyers filed an answer in an action commenced in the Land Court by neighbors who alleged that construction of a house on the parcel would violate restrictions and easements described in the buyers' certificate of title. [468-470]

CIVIL ACTION commenced in the Superior Court Department on June 16, 1982.

The case was heard by Keating, J., on a motion for summary judgment.

Robert J. Baum for the plaintiffs.

Jean Marie Kelley (D. Alice Olsen with her) for Robert E. Shalgian.

Paul J. Sullivan for Rockland Savings Bank.

WARNER J. At the closing, on April 20, 1977, of a loan and mortgage transaction with the defendant Rockland Savings Bank (the bank) in connection with the construction of a house, the plaintiffs (the Salins), as mortgagors, were given a copy of the certification of title rendered to the bank by its attorney, the defendant Shalgian. See G. L. c. 93, Section 70, inserted by St. 1972, c. 547, Section 1. On November 30, 1978, the Salins were served with a complaint (amended in January, 1979) brought in

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the Land Court by neighbors alleging, in material part, that the construction of the Salins' house violated certain restrictions and easements described in the Salins' certificate of title. An attorney for the Salins filed his appearance in that action on December 20, 1978, and an answer on January 31, 1979. The Land Court issued a decision on June 23, 1980, in which it determined that the Salins had violated certain easements and ordered the house removed to another location. On appeal, this court, in a decision entered on February 3, 1982, substantially upheld the Land Court with respect to violations of the easements but, finding laches on the part of the neighbors, reversed the order for removal of the house. Myers v. Salin, 13 Mass. App. Ct. 127 (1982).

On June 16, 1982, the Salins commenced this action [Note 3] in the Superior Court seeking damages for alleged negligence and misrepresentation in connection with the title search and certification [Note 4] and a violation of G. L. c. 93, Section 70, which, by the terms of that statute, constituted an unfair or deceptive act or practice under the provisions of G. L. c. 93A. On cross motions for summary judgment, Mass.R.Civ.P. 56, 365 Mass. 824 (1974), the defendants' motions were allowed, and judgment entered dismissing the action. The dispositive issue in this appeal is whether the claims of the Salins are barred by statutes of limitation. There is no genuine issue as to any of the material facts (set forth above) relevant to that question.

1. The negligence and misrepresentation claims. The parties agree that these claims are governed by the three-year statute of

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limitations set forth in G. L. c. 260, Section 2A, and that the discovery rule announced in Hendrickson v. Sears, 365 Mass. 83 (1974), applies. That rule is: "A client's cause of action against an attorney for negligent certification of title to real estate does not `accrue' for the purposes of G. L. c. 260, Sections 2 and 2A, until the misrepresentation is discovered or should reasonably have been discovered, whichever first occurs." [Note 5] Id. at 91. See Franklin v. Albert, 381 Mass. 611 , 618-619 (1980). However, "even with the adoption of a discovery rule, the plaintiff bears the burden of proving facts taking his case outside the impact of the three-year statute of limitations." Franklin v. Albert, supra at 619. The Salins say that they could not reasonably have discovered the misrepresentations until, at the earliest, the decision of the Land Court (about two years before the commencement of this action) in the action brought by the neighbors. [Note 6] The defendants counter that the commencement of the neighbors' action was sufficient to put the Salins on notice of any negligence or misrepresentations of the defendants.

We think that at least as of the date when the Salins filed an answer to the neighbors' complaint in the Land Court (January 31, 1979) they were on notice of the claims which they now assert. This was the time from which the statute of limitations began to run under the rule in Hendrickson v. Sears, 365 Mass. 83 (1974). The alleged defects in the certified title were no longer "inherently unknowable." [Note 7] Id. at 90. See Friedman

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v. Jablonski, 371 Mass. 482 , 485-486 (1976); Dinsky v. Framingham, 386 Mass. 801 , 803-804 (1982); Mansfield v. GAF Corp., 5 Mass. App. Ct. 551 , 554-555 (1977); Frank Cooke, Inc. v. Hurwitz, 10 Mass. App. Ct. 99 , 107-108 (1980). A Land Court decision in the neighbors' action was not a prerequisite to accrual of these causes of action. "In all cases the statute of limitations begins to run when the injured person has notice of the claim. The `notice' required is not notice of every fact which must eventually be proved in support of the claim. . . . Rather, `notice' is simply knowledge that an injury has occurred." [Note 8] White v. Peabody Constr. Co., 386 Mass. 121 , 130 (1982). These causes of action against the bank and Shalgian were barred by the three-year statute of limitations, G. L. c. 260, Section 2A, when this action was commenced.

2. The claim under G. L. c. 93A. The c. 93A claim rests solely on an alleged violation of G. L. c. 93, Section 70, inserted by St. 1972, c. 547, Section 1. The Salins concede in their brief that they were given a copy of the certification of title at the closing on April 20, 1977. That is all that Section 70 required at the time. Compare the revisions of Section 70 by Sts. 1979, Section 531 and 1980, Section 448. In any event, any cause of action under c. 93, Section 70, was time-barred at the commencement of this action by the four-year statute of limitations in G. L. c. 260, Section 5A. The discovery rule had no application to this claim.

Judgment affirmed.

FOOTNOTES

[Note 1] Judith D. Salin.

[Note 2] Rockland Savings Bank.

[Note 3] Thus about five years and two months after the receipt by the Salins of the title certification, three and one-half years after commencement of suit by the neighbors, two years after the decision of the Land Court, and four months after the decision of this court.

[Note 4] In Myers v. Salin, supra at 137, we said: "The Salins . . . were given constructive notice by the certificate that successors in title to the properties conveyed by the Whittington deeds might have claims to a right of way to beach rights, and they had actual notice of the plaintiffs' interests if they and their conveyancers read, as they should have, the Whittington deeds in their entirety. See Killam v. March, 316 Mass. 646 , 651 (1944). We hold that the certificates made adequate reference to the affirmative easements claimed under the Whittington deeds."

[Note 5] The defendants do not argue that the provisions of G. L. c. 93, Section 70, inserted by St. 1972, c. 547, Section 1, did not put the Salins in an equivalent position to clients of Shalgian. Cf. Page v. Frazier, 388 Mass. 55 , 60-61 (1983); Fall River Sav. Bank v. Callahan, ante 76 (1984). See Note, Attorney Negligence in Real Estate Title Examination and Will Drafting: Elimination of the Privity Requirement as a Bar to Recovery by Foreseeable Third Parties, 17 New Eng. L.Rev. 955, 977-987 (1982).

[Note 6] In view of our disposition of the case it is unnecessary to consider the Salins' alternative argument that the determinative date is that of our opinion in Myers v. Salin, supra.

[Note 7] While the Salins claim that the defendants continued to represent throughout the neighbors' action that the certification of title was correct, they do not allege fraudulent concealment as a basis for tolling the statute of limitations. Cf. White v. Peabody Constr. Co., 386 Mass. 121 , 133-135 (1982); Frank Cooke, Inc. v. Hurwitz, 10 Mass. App. Ct. 99 , 108-109 (1980). See Connelly v. Bartlett, 286 Mass. 311 (1934).

[Note 8] There is no question that the Salins suffered injury or harm causally connected to the alleged negligence and misrepresentations of the defendants when they were required to respond to the neighbors' complaint. They sought legal expenses in defending the action as an element of damages in this case. Here there was a confluence of discovery and harm. See Hendrickson v. Sears, supra at 91; Cannon v. Sears Roebuck & Co., 374 Mass. 739 , 742 (1978); Fortin Constr., Inc. v. Massachusetts Housing Fin. Agency, 392 Mass. 440 , 443-444 (1984), s. c. 17 Mass. App. Ct. 911 (1983); Levin v. Berley, 728 F.2d 551, 553 (1st Cir. 1984); Budd v. Nixen, 6 Cal. 3d 195, 200 (1971).