RYAN v. GARDNER FRANCO AMERICA FEDERAL CREDIT UNION (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs, Philip M. Ryan and Pamela J. Ryan (Ryans), brought this action in the Superior Court against the defendant, Gardner Franco-America Federal Credit Union (GFA), alleging (1) unfair and deceptive acts or practices in violation of G. L. c. 93A, § 2, and (2) fraud/misrepresentation. A Superior Court judge allowed GFA's motion for summary judgment because the statute of limitations barred both claims. The Ryans now appeal, and we affirm.

Background. In 2003, the Ryans purchased a single-family home located at 45 Barre Road in Phillipston (the property) from Robert Van Dyke. The purchase was partially financed by GFA.³ GFA retained attorney George Corey, an independent contractor, to handle the closing of the 2003 purchase, perform a title examination, and issue a certificate of title.⁴

In 2004, the Ryans discovered that a portion of the septic system that served their home was located on a neighbor's property, and that their neighbor's driveway was built on the property.⁵ By letter dated December 17, 2004, the Ryans, through counsel, sent a letter to Van Dyke demanding relief under G. L. c. 93A, and describing the inaccuracies in the title's description of the property's boundaries.⁶

The Ryans subsequently filed a lawsuit against Van Dyke in 2007 in which they alleged, inter alia, that Van Dyke had failed to convey the property to them free from defects in title.⁷ The Ryans and Van Dyke settled the case on February 1, 2012. Under the settlement's terms, Van Dyke would clear title to the encroached-upon land, and transfer it to the Ryans. An independent title examination was also to be performed, and a title insurance policy was to be issued by a company hired by the Ryans at Van Dyke's expense.

After hiring five different surveyors to determine the actual boundary between the properties, the Ryans retained attorney James Roberti to perform a title search and issue a title insurance policy. In a letter dated August 14, 2012, Roberti informed the Ryans that he “cannot issue the policy ․ because the description of the [property] based on the deed from Richard Wilkins to Robert Van Dyke ․ is defective.” Roberti further stated that the Ryans could not mortgage or sell the property until they resolved the title issue.⁸ On August 24, 2012, the Ryans, through their attorney Robert Cirillo, sent a letter to Van Dyke's counsel sharing Roberti's findings. This letter identified attorney Corey as a possible party against whom claims could be pursued for the title defects found by Roberti.

After learning of the title defect from Roberti, the Ryans sought assistance from GFA, which GFA did not provide. In or about April 2013, the Ryans stopped making mortgage payments. When efforts to have the Ryans resume payments failed, GFA commenced foreclosure proceedings. The property was subsequently sold at auction on April 8, 2016. By letter dated November 6, 2016, the Ryans demanded that GFA file an action in the Land Court to determine “whether a good record or marketable title is held.” GFA declined to do so. The Ryans thereafter brought this action in the Superior Court on April 26, 2017.

Discussion. The judge allowed GFA's motion for summary judgment because “the causes of action are barred by the statute of limitations.”⁹ The judge specifically concluded that the four-year limitations period applicable to G. L. c. 93A claims began to run on August 24, 2012, the date of Cirillo's letter to Van Dyke's counsel. On appeal, the Ryans contend that their cause of action did not accrue until February 15, 2017, when GFA refused to file the Land Court action the Ryans demanded. We disagree.¹⁰

“We review a decision to grant summary judgment de novo.” Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

General Laws c. 260, § 5A, provides that actions under G. L. c. 93A “shall be commenced only within four years next after the cause of action accrues.” Under this provision, “the general rule for tort actions is that an action accrues when the plaintiff is injured.” Koe v. Mercer, 450 Mass. 97, 101 (2007). “[T]he statute of limitations starts when the plaintiff discovers, or reasonably should have discovered, ‘that [he] has been harmed or may have been harmed by the defendant's conduct.’ ” Id., quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 206 (1990). “Reasonable notice that ․ a particular act of another person may have been a cause of harm to a plaintiff creates a duty of inquiry and starts the running of the statute of limitations.” Bowen, supra at 210.

Here, the Ryans knew they had been harmed as early as 2004, when they sent a demand letter to Van Dyke citing inaccuracies in their title. They also asserted, in 2007, that the property was “not marketable” and could not be sold when they sued Van Dyke. Even if the Ryans' claim did not accrue in 2004 or 2007, however, the claim accrued at the latest by August 24, 2012, when Cirillo, the Ryans' attorney at the time, identified Corey as a person against whom claims may be pursued.¹¹ We agree with the judge that “Cirillo's identification of Corey certainly constitutes reasonable notice that an act of another may have been a cause of harm to the Ryans, triggering a duty to inquire and starting the statute of limitations time clock running.” The Ryans filed this suit on April 26, 2017, more than four years after August 24, 2012. Therefore, the Ryans' G. L. c. 93A claim is time barred, and GFA is entitled to judgment as a matter of law.¹²

The Ryans argue that the earliest point at which their claim accrued was late 2015 or early 2016, when they became aware that Corey's errors were the cause of their defective title.¹³ Not so. A plaintiff's actual knowledge of the harm's cause is not a necessary precondition to the triggering of the limitations clock. See Koe, 450 Mass. at 101. In view of all of the surrounding circumstances, “[r]easonable notice” was afforded to the Ryans no later than when their own attorney identified Corey as a party against whom claims could be brought, and the limitations clock began to run at that time. Bowen, 408 Mass. at 210. See Doe v. Harbor Sch., Inc., 446 Mass. 245, 248 (2006) (holding that plaintiff need not “first understand[ ] the causal connection between her injuries and a legally cognizable claim against the defendant” before statute of limitations clock begins to run).

In short, the judge properly entered summary judgment for GFA.¹⁴

Judgments affirmed.

FOOTNOTES

3.   Under the financing agreement, the Ryans signed a promissory note and GFA received a mortgage as security.

4.   Corey is not a party to this action.

5.   Upon discovering these issues, the Ryans contacted GFA for assistance. The Ryans allege that GFA “offered no assistance whatsoever” in response, and in effect told the Ryans to seek relief from Van Dyke instead.

6.   In the demand letter, the Ryans' attorney asserted, inter alia, that the “encroachment of the leach field” reduced the Ryans' investment value in the property to “zero.”

7.   During discovery in the lawsuit against Van Dyke, the Ryans asserted that the property was “not marketable,” was “less Property than described in the purchase and sale agreement,” and could not be sold.

8.   Philip Ryan admitted during a deposition that he spoke to Roberti after Roberti issued his title report. During this conversation, he asked Roberti whom he “had recourse against,” and Roberti at one point mentioned that “George Corey” had “made a big mistake.”

9.   Prior to moving for summary judgment as to the Ryans' complaint, GFA filed a separate motion for partial summary judgment as to its quiet title counterclaim against the Ryans. The judge granted partial summary judgment as to GFA's quiet title counterclaim on February 20, 2018. While the Ryans' updated notice of appeal indicates that the Ryans are appealing from both the judgment on GFA's quiet title counterclaim and the judgment dismissing their complaint, the Ryans do not appear to raise any argument in their briefs pertaining to the former. We therefore need not address the judgment on GFA's quiet title counterclaim. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

10.   In the Superior Court, and again before this court, GFA also argued that the Ryans' complaint fails to state a claim under G. L. c. 93A. Because we affirm on statute of limitations grounds, we decline to address this argument.

11.   The Ryans' contention that their cause of action did not accrue until February 15, 2017, when GFA refused to file the requested Land Court action, is without merit. The record amply demonstrates that the Ryans were aware of the title defects several years prior to 2017. Their requests to GFA for assistance do not somehow extend or toll the commencement of the limitations clock. Cf. Olsen v. Bell Tel. Lab. Inc., 388 Mass. 171, 176 (1983) (stating that “there would be little left to statutes of limitations” if fact that plaintiff “would have felt ‘awkward’ suing parties that had a continuing business relationship with his employer” could toll limitations period).

12.   Riley v. Presnell, 409 Mass. 239 (1991), on which the Ryans rely, is not to the contrary. In that case, the defendant “allegedly caused great psychological harm to [the plaintiff], and that very harm allegedly caused [the plaintiff] to be unable to link the misconduct to the damage.” Id. at 246. In that context, the court held, a reasonable fact finder could conclude that the plaintiff “did not make the causal link [at the earlier accrual date] and that his failure to do so was reasonable.” Id. at 247. Because this amounted to a genuine dispute of material fact that “ought to be decided by the jury,” the court concluded that summary judgment was inappropriate. Id. at 248. Here, by contrast, no dispute of material fact exists. The Ryans do not dispute the fact that they were aware of the issues with their title as early as 2004, or the fact that Cirillo sent a letter in August 2012 identifying Corey as a potential defendant. Because “a reasonable person in the [Ryans'] position would have been able to discern the harm or the cause of the harm” when Cirillo sent the August 24, 2012 letter, the claim accrued at that time as a matter of law. Id. at 245. See Vinci v. Byers, 65 Mass. App. Ct. 135, 139 (2005) (“when the facts regarding discovery of harm are undisputed, the question may be decided as matter of law”).

13.   At oral argument, the Ryans contended that a fact finder could reasonably determine that the earliest possible time at which knowledge could be imputed to the Ryans -- i.e., the point at which their cause of action accrued -- was in 2013, when the Ryans stopped making mortgage payments. For the reasons delineated herein, this belated argument is likewise unavailing.

14.   The judge also held that the statute of limitations barred the Ryans' fraud/misrepresentation claim. As the Ryans do not raise any argument pertaining to this claim, we need not address it. See Mass. R. A. P. 16 (a) (9) (A). Even if we were to address this claim, it would be time barred for the same reasons as the G. L. c. 93A claim.