Kirkland Construction Co. v. James

658 N.E.2d 699, 39 Mass. App. Ct. 559, 1995 Mass. App. LEXIS 860
CourtMassachusetts Appeals Court
DecidedDecember 27, 1995
DocketNo. 94-P-1075
StatusPublished
Cited by47 cases

This text of 658 N.E.2d 699 (Kirkland Construction Co. v. James) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirkland Construction Co. v. James, 658 N.E.2d 699, 39 Mass. App. Ct. 559, 1995 Mass. App. LEXIS 860 (Mass. Ct. App. 1995).

Opinions

Flannery, J.

Write Now, Inc. (Write Now), an office supply firm, wanted the plaintiff, Kirkland Construction Company (Kirkland), to renovate space in a building for its use as a retail store. Kirkland was able and willing to do the job, but it demanded assurances that Write Now could pay for the work. The assurances were provided by Write Now’s lawyers in the form of a letter to Kirkland from Kurt A. James, [560]*560an associate with the law firm of Choate, Hall & Stewart (Choate, Hall). Kirkland performed under the contract, but Write Now failed to pay for the work and, having entered into an assignment for the benefit of creditors, is unable to do so.2

Kirkland brought this action against the lawyers, alleging negligent misrepresentation, negligent supervision of the associate-author of the letter, a violation of G. L. c. 93A, and alleging that the partners of Choate, Hall are liable for the torts of its members.3 A judge of the Superior Court granted the defendants’ motion to dismiss the action, pursuant to Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974), on the grounds that the lawyers owed no duty to Kirkland and that, because the lawyers were merely a conduit for assurances by Write Now, there was no foreseeable reliance by Kirkland on any representations by the lawyers. Kirkland appeals from the order dismissing its action, and we now reverse.

The lenient standard by which a complaint is measured on a motion to dismiss for failure to state a claim is familiar. The allegations are taken as true, doubts are resolved in favor of the complainant, and the motion must be denied unless it is certain that no set of provable facts could entitle the plaintiff to relief. See Harvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 68 (1992); Kipp v. Kueker, 1 Mass. App. Ct. 206, 210 (1979). Kirkland’s complaint alleges that it demanded “assurances that Write Now had made financial arrangements that would enable it to pay” if Kirkland did the job, that Choate, Hall undertook, on behalf of Write Now, to provide assurances to Kirkland, that it negligently made written representations upon which it knew Kirkland would rely, that certain of the representations were false, and that [561]*561Kirkland reasonably relied on the misrepresentations — to its loss.

The defendants moved to dismiss on the grounds, that their client was Write Now not Kirkland, that Kirkland’s interpretation of and reliance on Choate, Hall’s letter was not reasonable or foreseeable, that Kirkland failed to allege conduct violative of c. 93A, and that the partnership liability claims were entirely derivative and thus lifeless.

The Superior Court judge allowed the defendants’ motion, reasoning that, as counsel for Write Now, Choate, Hall owed Kirkland no duty except “to refrain from relaying information that the lawyer knows or should know is untrue or misleading” and to act within the boundaries of S.J.C. Rule 3:07, Canon 7, DR 7-102, 382 Mass. 785 (1981). As a “further reason” for her decision, the judge ruled that Choate, Hall’s letter, unlike an attorney’s opinion letter, “was merely ... a conduit for information” from Write Now. Therefore, she concluded, there was no reasonable or foreseeable reliance by Kirkland upon any representations by Choate, Hall.

The defendants contend that they cannot be subject to malpractice-type liability for a misrepresentation to a non-client. That contention is correct, but here it is a straw man. Kirkland does not allege that the defendants were in breach of a duty growing out of an attorney-client relationship between them. Contrast Page. v. Frazper, 388 Mass. 55, 61-62 (1983). Kirkland agrees it knew that the Choate, Hall lawyers represented Write Now and that they could not represent Kirkland in any manner adverse to Write Now. See Beecy v. Pucciarelli, 387 Mass. 589, 597 (1982). Between adversaries the lawyer can have only one loyalty, and for a mere mistake there is no liability to a nonclient.

Kirkland argues, instead, that its claim is derived from a related, but different principle, namely, that in certain circumstances a lawyer owes a duty of due care to a nonclient who he or she knows will rely on the services rendered. Compare Page v. Frazier, 388 Mass, at 64-65; Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 524, cert, denied, [562]*562493 U.S. 894 (1989); Spinner v. Nutt, 417 Mass. 549, 552 (1994).

This doctrine has been less readily applied to lawyers than to other service providers, e.g., surveyors and accountants. See Prosser & Keeton, Torts § 107, at 746-747 (5th ed. 1984). And courts have imposed several limiting principles in cases involving lawyers. In Lamare v. Basbanes, 418 Mass. 274, 276 (1994), for example, the Supreme Judicial Court stated that it “will not impose a duty of reasonable care on an attorney if such an independent duty would potentially conflict with the duty the attorney owes to his or her client.” In Logotheti v. Gordon, 414 Mass. 308, 311 (1993), the court indicated that an independent duty will be more readily found where, as here, the service is intended to benefit the client as well as the third party. Similarly, the Restatement (Second) of Torts § 552(2) (a) (1977), limits the provider’s duty to “the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information,” rather than to persons foreseeably harmed. And in Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 892 P.2d 230, 235-237 (Colo. 1995), the court more readily allowed liability for a misrepresentation of material fact in a nonadversary setting.4

In considering the present appeal, we emphasize that we are not deciding liability. The question is whether any set of provable facts would entitle Kirkland to relief. First, Kirkland does not allege that it sought legal advice from Choate, Hall; it sought assuring information from the lawyers about their client. Contrast DaRoza v. Arter, 416 Mass. 377, 381 (1993). Second, the complaint may be read to allege that Choate, Hall made factual representations about arrangements its client “had made to ensure payment to Kirkland.”5 [563]*563Choate, Hall’s objective was to induce Kirkland to enter into a contract for the benefit of its client, itself, and, incidentally, Kirkland. That combination, if Kirkland can prove it, may well be significant. See Greycas, Inc. v. Proud, 826 F.2d 1560, 1563, 1565 (7th Cir. 1987) (lawyer liable to nonclient lender for inducing loan to client by negligent misrepresentation). Third, Kirkland alleges that Choate, Hall knew and intended that Kirkland would rely on the representations in its letters, and Kirkland reasonably so relied.6 And fourth, the representations were allegedly false, careless, and harmful. Those allegations, if they are proven, are the stuff of liability.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pierce-Cooke v. Wheeler
D. Massachusetts, 2024
Sgarzi v. Sharkansky & Co. LLP
33 Mass. L. Rptr. 478 (Massachusetts Superior Court, 2016)
Martinez v. Waldstein
49 N.E.3d 245 (Massachusetts Appeals Court, 2016)
Harmon Law Offices, P.C. v. Attorney General
991 N.E.2d 1098 (Massachusetts Appeals Court, 2013)
ZVI Construction Co. v. Levy
31 Mass. L. Rptr. 419 (Massachusetts Superior Court, 2013)
Johnson v. School Committee of Sandwich
969 N.E.2d 175 (Massachusetts Appeals Court, 2012)
Manson v. GMAC Mortgage, LLC
283 F.R.D. 30 (D. Massachusetts, 2012)
Balerna v. Gilberti
281 F.R.D. 63 (D. Massachusetts, 2012)
Sandman v. Quincy Mutual Fire Insurance
961 N.E.2d 135 (Massachusetts Appeals Court, 2012)
Mack v. Wells Fargo Bank, N.A.
29 Mass. L. Rptr. 183 (Massachusetts Superior Court, 2011)
Loltek-Jick v. O'Toole
29 Mass. L. Rptr. 269 (Massachusetts Superior Court, 2011)
Smith v. Jenkins
818 F. Supp. 2d 336 (D. Massachusetts, 2011)
Nova Assignments, Inc. v. Kunian
928 N.E.2d 364 (Massachusetts Appeals Court, 2010)
Brown v. Accredited Home Lenders, Inc.
26 Mass. L. Rptr. 559 (Massachusetts Superior Court, 2009)
In Re Pharm. Industry Average Wholesale Price Lit.
582 F.3d 156 (First Circuit, 2009)
Tankanow v. Rivera
22 Mass. L. Rptr. 596 (Massachusetts Superior Court, 2007)
Frank v. Fowler
22 Mass. L. Rptr. 366 (Massachusetts Superior Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
658 N.E.2d 699, 39 Mass. App. Ct. 559, 1995 Mass. App. LEXIS 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkland-construction-co-v-james-massappct-1995.