No. 00-1038ACommonwealth of Massachusetts Superior Court WORCESTER
March 1, 2002
MEMORANDUM OF DECISION AND ORDER ON MOTION OF DEFENDANTS CYNTHIA ANDLEON C. HERON, JR. FOR SUMMARY JUDGMENT
TOOMEY, J.
INTRODUCTION
This matter is before the court on the motion of defendants Cynthia and Leon C. Heron, Jr. (“Heron”) for summary judgment on plaintiffs’ complaint. Plaintiffs Robert Gilmore and Mary Ann O’Brien Gilmore (collectively, the “Gilmores”) allege breach of contract (Count I), deceit (Count II), fraud (Count III) and violation of G.L. c. 93A, the Massachusetts Consumer Protection Act (Count IV).
For the following reasons, the defendants’ motion is ALLOWED.
BACKGROUND
This dispute arises out of 1988 and 1994 purchases of real estate at 29 Silver Hill Road in Milford Massachusetts (the “property”). In 1988, the Herons bought a newly constructed home on the property from Markland, Inc. The Herons had visited the property and met with the builder during construction; at the time of the meetings, only the outside of the house had been framed. Leon Heron was a civil engineer, with a master’s degree in construction management. During the six years that the Herons owned the property, they received and paid sewer bills from the Milford Sewer Department.
In or about January of 1994, the Herons retained Boatmens Relocation Management to sell their home. In connection with the sale effort, Leon Heron completed a disclosure form in which he stated that, to the best of his knowledge, the property was connected to a public sewer system and that there was no septic tank/cesspool system serving the property.[3]
The signed disclosure form was attached to the Purchase and Sale Agreement, which was executed by the Herons and the Gilmores on February 8, 1994. Prior to closing, the Gilmores arranged for an inspection of the property by an inspector selected by them. The inspection report provided to the Gilmores recited that the waste disposal system was “not known.” Nevertheless, the Gilmores formed a belief that the property was connected to the public sewer system Without conducting any further investigation of the waste disposal system, the Gilmores purchased the property in February of 1994.
For three years after they purchased the property, the Gilmores received and paid bills for sewer services from the Town Sewer Department. In June of 1997, the Gilmores learned from a neighbor that the property was serviced by a septic system and was not connected to the public sewer. The Gilmores then brought this action, alleging that the Herons knew or should have known that the property was not connected to the sewer system and that, had the Herons disclosed that information, the Gilmores would not have purchased the property.
DISCUSSION
Summary judgment will be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.Cassesso v. Comm’r of Correction, 390 Mass. 419, 422 (1983); CommunityNational Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue “and [further,] that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). In assessing a Rule 56 motion, “[t]he evidence of the non-movant [here, the Gilmores] is to be believed and all justifiable inferences are to be drawn in his favor.” Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (quoted with approval inG.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263
(1991)). “The nonmoving party may not simply rest on pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”Correllas v. Viveiros, 410 Mass. 314, 317 (1991).
At bar, the Herons contend that they are entitled to summary judgment because there are no genuine issues of material fact as to whether the Herons knowingly gave the Gilmores false information about the property’s waste disposal system.
A. Deceit (Count II) and Fraud (Count III)
In opposing a motion for summary judgment, the opposing party must respond and allege specific facts which would establish the existence of a genuine issue of material fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). A claim for fraud requires that plaintiffs demonstrate that defendants knowingly made a false representation of fact for the purpose of inducing the plaintiff to act and that the plaintiff detrimentally relied on the representation. See Ravosa v. Zais, 40 Mass. App. Ct. 47, (1996). At bar, the Gilmores’ claims for fraud and deceit are based on their allegation that the Herons, knowing that the property had a septic system, fraudulently misrepresented in their disclosure statement that the property was connected to the public sewer. In order to find the Herons liable for fraudulent misrepresentation, therefore, the plaintiffs must present factual evidence that the Herons knew that the property was not connected to the public sewer. This they have failed to do.
The Gilmores rely on their personal belief that Heron, because of his professional qualifications, should have known that the property was not connected to the public sewer. In support of that theory, they offer only their own speculation as to Heron’s purported knowledge. At bottom, the Gilmores rest solely on their belief that a civil engineer with a degree in construction management who purchased a new home from a builder knew or should have known the nature of the property’s waste disposal system. Massachusetts law, however, does not support the Gilmores’ contention because a person’s “understandings, beliefs and assumptions are not enough to withstand a well-pleaded motion for summary judgment.” PolaroidCorp. v. Rollins Environmental Services (NJ), Inc., 416 Mass. 684, 697
(1993). At bar, the Gilmores’ “evidence” presents no genuine issues of material fact as to Heron’s knowledge about the property’s waste disposal system.
Furthermore, the summary judgment record indicates that the Herons regularly paid the Town for sewer services for the six years they owned the property. Proof of such payments would, if admissible, constitute powerful evidence that the Herons did not know that the property was not served by the Town sewer. Although the Gilmores suggest that there are disputed facts as to whether those bills were for water rather than for sewer services, they again present no factual evidence to support that suggestion. The bills reflect that they are from the Milford Sewer Department for “res. sewer;” the faces of those bills do not, therefore, create a factual dispute as to the services for which billing was being made.
Finally, the disclosure form expressed only that, “to the best of my/our [the Herons’] knowledge” the property had a public sewer connection. That language falls far short of a definitive representation and will not, without more, support fraud and deceit counts. There is no “more” at bar.
The Gilmores have presented no evidence which might create a factual dispute as to the Herons’ actual knowledge of the nature of the property’s waste disposal system. For that reason, the court concludes that the Gilmores are not likely to offer essential evidence at trial in support of their fraud and deceit counts and they must, therefore, suffer summary judgment. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991) (party moving for summary judgment in case in which opposing party will have burden of proof at trial, is entitled to summary judgment if he demonstrates that party opposing the motion has no reasonable expectation of proving essential element of its case, and opposing party presents no countervailing evidence).
B. Negligent Misrepresentation
The complaint makes no express claim for negligent misrepresentation. Assuming, arguendo, that such a claim can be gleaned from the causes of action actually set forth in the complaint, the court will conclude that the Gilmores have again failed to present evidence of a genuine issue of material fact as to whether the Herons were reasonable in their restrictive assertion that the property had a septic system.
A claim for negligent misrepresentation requires a showing that:
One, who, in the course of his business, profession or employment, or any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Lawton v. Dracousis, 14 Mass. App. Ct. 164, 171 (1982), quoting Restatement (Second) of Torts § 552(1) (1977). At bar, there is simply no evidence that the Herons failed to exercise reasonable care in stating on the property disclosure form that, to the best of their knowledge, the house was connected to the public sewer system. The Herons received and paid sewer use bills from the Town for the six years they owned the property. There is no suggestion that, during that time, the Herons either declined to pay the sewer bills or experienced any problems with the septic system, requiring attention that might have disclosed the nature of the system. There is evidence that Heron relied on public documents for his assumption that his property was publicly sewered, and plaintiffs have failed to present evidence of a factual dispute as to whether Heron’s reliance was based on the exercise of reasonable care. See Fernandes v. Rodrigue, 38 Mass. App. Ct. 926, 927-28 (1995) (rescript).
Moreover, the Gilmores received an inspection report stating that the waste disposal system on the property was “not known.” That circumstance, when coupled with the fact that Heron had stated, in the disclosure form, only a “best of my/our knowledge” belief that the property was connected to the public sewer, the Gilmores are ill-positioned to claim now that they were victimized by the Herons’ omission to reveal the character of the disposal system. See Fernandes,supra, 38 Mass. App. Ct. at 927. That the Gilmores chose not to inquire further in view of such “red flags” erodes their present suggestion that the Herons were unreasonable in assuming that the property was connected to the public sewer. The instant record reveals no genuine issue of material fact which, if resolved favorably to the Gilmores, would entitle them to prevail upon a negligent misrepresentation theory.
C. G.L. c. 93A
A claim for a violation of G.L. c. 93A requires a showing by the Gilmores that the Herons intentionally caused the Gilmores harm by making a knowing or willful misrepresentation as to the nature of the property’s waste disposal system. See Anthony’s Pier Four, Inc. v. HBC Associates, 411 Mass. 451, 475 (1991). As in Fernandes, supra, the G.L. c. 93A claim at bar “is absorbed in and vanishes with the misrepresentation claim.”Id. at 928. Chapter 93 A “does not make actionable the failure to disclose a fact unknown to the person who the plaintiff thinks ought to have disclosed it.” Id. In the absence of any factual evidence that Heron knew or ought to have known that the property had a septic system, seesupra, the G.L. c. 93A claim also fails.
D. Breach of Contract
The Gilmores assert that, because the disclosure form was attached to the purchase and sale agreement (“PS”), the Herons’ statement on the form that the property was connected to the public sewer constitutes a breach of the PS. At bar, there is no evidence that the contract contemplated the conveyance of a sewered property. The PS made no such representation and established no contingency that the sale depended on the existence of a public sewer connection. In the attachment to the PS, Heron stated only “to the best of my knowledge” his belief that the property was connected to the public sewer.
The disclosure form stated that it was “not a warranty.” It also stated, however, that “prospective buyers may rely on this information in deciding whether or on what terms to purchase the property.” All that the Gilmores could reasonably rely on, however, was Heron’s statement that, to the best of his knowledge, the property was connected to the public sewer. Where there is no evidence of a factual dispute as to whether the PS promised the delivery of a publicly sewered property, the breach of contract action must fail.
CONCLUSION
The Gilmores’ claims are principally based on their assertion that, because Heron, as a civil engineer, knew or should have known that the property he purchased from the builder had a septic system, his statement on the disclosure form that the property was connected to the public sewer system constituted an actionable misrepresentation. Where plaintiffs have failed to present any evidence of a genuine issue of material fact as to whether Heron had or should have had such knowledge, whether his reliance on public records was unreasonable, or whether the contract contemplated the conveyance of sewered property, the Herons are entitled to judgment as a matter of law.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendants’ motion for summary judgment is ALLOWED.
________________________ Daniel F. Toomey Justice of the Superior Court
Dated: February ____, 2002