50 CANDLEWOOD ROAD LLC, Plaintiff vs. LESTER BUILDING SYSTEMS, Defendant/Third Party Plaintiff vs. PAUL C. PEPICELLI and ANTHONY D. LUISI, Individually and as Partners and Representatives of PCP AND CO., Third Party Defendants.

No. 99-775DCommonwealth of Massachusetts Superior Court CIVIL ACTION ESSEX, ss.
Dated: March 21, 2001

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]


Defendant Lester Building Systems moved for Summary Judgment as to all counts of the complaint. After a hearing, this court denied the vast bulk of Lester’s motion. This Court ruled that there appeared to be disputed issues of material fact on such issues of apparent agency, negligence, and breach of contract. The motion was also denied as to the plaintiff’s Chapter 93A Claim. The Court, however, did allow the motion for summary judgment in part. As to the plaintiff’s claims of negligent misrepresentation, deceit, and fraud, this Court granted a partial summary judgment which restricted these three claims to “misrepresentation concerning financial viability/credit worthiness.” The reason for this decision was that this Court ruled that the other assertions of fraudulent statements were matters of opinion and not of fact. The plaintiff then moved to have this Court reconsider its ruling regarding its grant of partial summary judgment on the fraud, deceit, and negligent misrepresentation claims. Another hearing was held on this motion. After consideration, this Court allows the motion for reconsideration in part.

Much of the plaintiff’s argument has no legitimate basis. For example, the plaintiff complains that it was not given an adequate opportunity to address the issues of deceit and negligent misrepresentation contained in the amended complaint in relation to the motion for summary judgment. This argument is fallacious on a number of grounds. First, it was the plaintiff that moved to amended its complaint in connection with the motion for summary judgment. At the initial hearing on the motion for summary judgment, the plaintiff’s counsel agreed that the motion for summary judgment should be addressed in the context of the amended complaint. Plaintiff’s counsel also agreed that the summary judgment arguments relating to the fraud claim (which was contained in the original complaint) applied equally to the deceit and negligent misrepresentation claims (contained in the amended complaint). Thus, to claim many sort of prejudice is disingenuous at best. Second, any alleged prejudice is certainly now eradicated by having held a second hearing on this matter. Third, and equally unavailing is its argument that, as an equitable matter, this Court should allow all of the asserted claims to be tried to a jury and then for the Court to “sort them out” on a directed verdict standard. This argument, while appealing to the judge assigned to the summary judgment motion, is a disservice to the rule of law. The fact remains that a party is entitled to partial summary judgment (no matter how burdensome it is upon a judge) in order to winnow out insubstantial claims that have no basis of law. This is true even though the present motion resembles more a motion in limine than one for summary judgment.

The plaintiff, however, does raise more substantial arguments that deserve attention on this motion for reconsideration. The plaintiff contends that the alleged statements of Lester (beyond financial viability or credit worthiness of the co-defendant contractors) are actionable statements for the purpose of fraud, deceit, and negligent misrepresentation. The issue still remains as to whether these statements constitute simply statements of opinion or statements of “material fact”. While the torts of fraud, deceit, and negligent misrepresentation differ, they all require that the defendant make a false statement of material fact which induces reasonable reliance on the part of the plaintiff. See McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. 573, 575 (1995) (misrepresentation claim); NotaConstruction Corporation v. Keyes Associates, Inc., 45 Mass. App. 15, 16-17 (1998) (deceit claim). Therefore, in the context of this case, the fraud, negligent misrepresentation, and deceit claims all rise or fall as to whether the statement at issue is one of non-actionable opinion or, rather, one of material fact.

Fraud, deceit, and negligent misrepresentation may be perpetrated by a half truth, or by an implied representation, as well as by an express representation of material fact. Briggs v. Carol Carr’s Inc., 407 Mass. 391, 396 (1990). Even a statement in a form of an opinion made be actionable as a statement of material fact “if the representation is false and the subject matter is one susceptible of actual knowledge”.Briggs v. Carole Cars, Inc. supra at 396. This is particularly true where the maker of the statement has special knowledge of facts. Restatement (Second) of Torts Section 539. Thus, in Briggs v. CaroleCars, Inc., supra, the Supreme Judicial Court held that a car dealer’s assertion that an automobile was in “good condition,” even though a statement in a form of an opinion, was actionable because the car dealer was in a position of superior knowledge as to the condition of the automobile and an inspection of the automobile would lead to actual knowledge as to whether this statement was true or false.

As in many instances, the law is easier to state then it is to apply. “The distinction between a statement of fact and a statement of opinion is often a difficult one to draw.” McEneaney v. Chestnut Hill RealtyCorp., 38 Mass. App. at 575. The plaintiff has presented the following statements by Lester (through its agent Mr. Simpkins) as the statements which constitute fraud, deceit, and negligent misrepresentation. At a deposition, Robin Dale Petersen stated that Mr. Simpkins represented the following:

1. That the construction company P.C.P. (which was composed of contractors Paul Pepicelli and Anthony Luisi) where (at least implicitly) authorized representatives or agents of defendant Lester.
(P. 109 of Petersen Deposition)
That Simpkins and Lester had been “working closely with Mr. Luisi and Mr. Pepicelli and had gone over the project with him at length”.
(P. 110 of Petersen Deposition)
Lester had checked the references of Luisi and Pepicelli.
Having checked their references, Simpkins stated that they were “very, very good builders and they knew actually what they were doing.”
Simpkins assured Petersen that Lester would be “very much a part of this project (involving the construction of a horse barn)” and that Simpkins “would be on site periodically to supervise this construction.”
(P. 109-110 of Petersen Deposition)

Certain of these representations are actionable and certain of them are not. The statement that Pepicelli and Luisi were authorized agents or representatives of Lester is not actionable because all parties agree that it is true that Pepicelli and Luisi company (PCP) was an authorized representative of Lester. Namely, Lester authorized that construction company to erect its barn structures. The representation that a party is an authorized representative implies nothing more than that. Therefore, while this statement may be admissible to prove assertions such as agency and other matters, it does not constitute a statement which is actionable for fraud, deceit or negligent misrepresentation.

The statement that Simpkins had been working closely with Luisi and Pepicelli and that he had gone over the project with them “at length” is a statement of material fact and, if at trial the plaintiff can prove that it is false, may be the basis of a fraud, deceit, or negligent misrepresentation claim.

Likewise, the statement that Simpkins had checked the references of Pepicelli and Luisi is a statement of material fact and is actionable for the purpose of a fraud, deceit, or negligent misrepresentation claim.

This Court continues to hold that statements that Luisi and Pepicelli were “very very good builders” and “knew exactly what they were doing” are statements of opinion that are not actionable. All parties agree that Pepicelli and Luisi did not hold themselves out to be experienced in barn construction. Instead, they represented themselves to be builders of commercial and other types of buildings. The statement that someone is a “very, very good builder” and “knew exactly what they are doing” is truly a statement of opinion and could not be mistaken as anything but that. Of course, one person’s opinion of what constitutes a very very good builder can differ from another. This is true even if both people observed the same structure or construction effort. This is particularly true as to someone who specializes in one type of building and then takes on a job building another type of structure. This is not a case where one could examine an object (such as a car) and obtain actual knowledge that represented the truth or falsity of this opinion. The degree of Pepicelli and Luisi’s competence as builders is not a matter susceptible of actual knowledge or one over which Lester had peculiar control of or access to the information. See Nota Construction Corporation v. KeyesAssociates, Inc., 45 Mass. App. Ct. 15, 17-18 (1998) (amount of subsurface ledge was a statement of opinion which was not actionable because, due to a lack of any test boring or other information, it was not susceptible of actual knowledge and the maker of the statement did not have peculiar control over the information or superior knowledge). Thus, these statements regarding Simpkins’ opinion of the quality of Pepicelli and Luisi are not actionable statements for the purpose of fraud, deceit, and negligent misrepresentation.

Finally, the statements that Lester would be “very much a part of the project” and that Simpkins would be on site periodically to supervise the construction are, at least, implied representations of material fact that are actionable for the purpose of fraud, deceit, or negligent misrepresentation.

As set forth above, the plaintiff may pursue its claims of fraud, deceit, and negligent misrepresentation as to certain statements made by Lester or its agent. Therefore, the motion for reconsideration isallowed in part and denied in part.

So Ordered,

______________________________ Richard E. Welch III Justice of the Superior Court

Dated: March 21, 2001