McCormack v. Galego

5 Mass. L. Rptr. 157
CourtMassachusetts Superior Court
DecidedMarch 4, 1996
DocketNo. CA 950837
StatusPublished
Cited by1 cases

This text of 5 Mass. L. Rptr. 157 (McCormack v. Galego) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCormack v. Galego, 5 Mass. L. Rptr. 157 (Mass. Ct. App. 1996).

Opinion

Gershengorn, J.

I. INTRODUCTION

Plaintiff, Georgianna K. Donadío McCormack, formerly known as Georgianna Donadío (“McCormack”), brought this action against several defendants, including Robert W. Bozenhard, Jr., Mary A. Socha, John P. Ely and Mark J. Kolber, individually, and doing business under the name and style of Bozenhard, Socha, Ely & Kolber (collectively hereinafter “Bozenhard”) for professional malpractice and negligent certification of record title to certain real estate described and otherwise known as Yonder Hills Estates at or on Skyline Trail in Middlefield, Hampshire County, Massachusetts (the “Property”).

Defendant, Attorney Bozenhard,. has moved for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c). Attorney Bozenhard argues that because he served exclusively as the Bank’s closing attorney, he owed no duty of care to Plaintiff. Additionally, Attorney Bozenhard argues that the Certificate of Title he provided expressly enumerates exceptions which limit the coverage of his certification and, therefore, he cannot be held liable for his actions connected to the closing. For the reasons that follow, defendant’s motion for judgment on the pleadings is Granted.

BACKGROUND

For the purposes of the present motion for judgment on the pleadings, the following relevant facts, taken from Plaintiffs complaint, are assumed to be true:

On or about April 24, 1981, the Plaintiff purchased the Property from Thomas J. Manion and Nicola M. Manion for the sum of One Hundred Thirty-five Thousand and No/100 ($135,000.00) Dollars. The purchase and sale of the Property is evidenced by a deed from Thomas J. Manion and Nicola M. Manion to Plaintiff, dated April 24, 1981 had recorded in the Hampshire County registry of Deeds in Book 2220, Page 78 (the “Deed”). The Deed conveys two (2) parcels of land, to wit:

a. PARCEL 1, which conveys fifty (50) acres, more or less,
b. PARCEL 2, which conveys the following:
PARCEL 2: The land excepted in deed of Robert S. Kneeland to Hugh S. Miller, et ux, dated October 2, 1943 and recorded in the Hampshire County Registry of Deeds, Book 977, Page 351, lying on the westerly side of the highway from Chester to Mid-dlefield northerly of the driveway then leading from said highway to the house now or formerly of Rev. John Brittain Clark; conveying also the pump house near the easterly side of the said premises granted to said Miller and the spring from which water is pumped to said pump house and all land lying within fifty (50) feet of said spring or said pump house, and all structures thereon and all pumps, machinery, and equipment therein or used in connection therewith, and all water pipes leading from said spring to said pump house and from said pump house across the said premises granted to the said Miller to the house of the said Kneeland on the westerly side of said highway leading from Chester to Middlefield.
Together with the right to enter upon the premises granted to said Miller with teams, trucks, or other conveyances for the purposes of operating and repairing said machinery in said pump house and [158]*158other structures and the right of maintaining, repairing, and renewing the pipes and equipment used for supplying water to said house of the said Kneeland on the westerly side of the Highway leading from Chester to Middlefield, including the right to make such excavations on the premises granted to said Miller as may be necessary for the repair, maintenance, or renewal of said pipes and for the operation of said water system.
Together with the right appurtenant to the land hereby conveyed on the westerly side of said Chester-Middlefield Highway, to take water from a certain spring located a short distance westerly of said highway and southerly of said driveway leading to the house now or formerly of said Clark.

In order to purchase the Property, Plaintiff utilized proceeds issued by Defendant United Cooperative Bank, also known as Westfield Cooperative Bank (the “Bank”), in consideration of Plaintiffs grant of a first purchase money mortgage on the Property in favor of the Bank. Defendant Gerald L. Galego (“Galego”) acted as closing agent for the Bank in 1981. Galego conducted an examination of record title to the Property in connection with Plaintiffs purchase and mortgage of the Property, and Galego issued a Certificate of Title to the Property to Plaintiff.

On or about August 6, 1985, Plaintiff granted a second mortgage to the Bank. Attorney Bozenhard issued to the Bank and to Plaintiff aCertificate of Title dated August 6, 1985 (the “Certificate of Title”). The second paragraph of the Certificate of Title states as follows: “CERTIFICATION FROM DATE OF FIRST MORTGAGE ONLY.” In addition, the Certificate ofTitle affirmatively states:

I [Attorney Bozenhard] have examined title to the premises described in a mortgage dated August 6, 1985 given by Georgianna Donadio to you [the Bank], in the records of the Hampshire County Registry of Deeds and of the Probate Court for the County of Hampshire, and I hereby certify that at the time I recorded said Mortgage the Mortgagor(s) holds a good and sufficient record title to the premises, free from all encumbrances, accepting only matters which are expressly enumerated, and the Mortgagee holds a good and sufficient record 2nd mortgage to the premises, subject only to the matters excepted by this Certificate. (Emphasis added.)

On or about February 14, 1992, Plaintiff received a report from Lindwood H. Fisk, (“Fisk”) a Registered Land Surveyor, which indicated that the description designated as PARCEL 2 fails for vagueness and inadequacy. Fisk stated: “I believe that you [Plaintiff] own about 50 acres and not the 83 acres of the buy and sell agreement . . .” Plaintiff thereafter brought this present action.

DISCUSSION

When evaluating the sufficiency of pleadings for purposes of Mass.R. Civ.P. 12(c), the court must take all of the nonmoving party’s well-pleaded material allegations as true. Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976).

It is undisputed that the Bank and the Plaintiff engaged in a loan and second mortgage transaction on or about August 6, 1985. At the closing of this transaction, which was a refinancing of the Property, the Bank was given a Certificate of Title rendered by Attorney Bozenhard. Attorney Bozenhard represented the Bank during this transaction. It is likewise undisputed that Attorney Bozenhard provided Plaintiff, as mortgagor, with a copy of the Certificate of Title in connection with the second mortgage. At no time did Attorney Bozenhard represent Plaintiff regarding this transaction. Merely providing a certificate of title in a mortgage transaction does not establish an attorney-client relationship. See Page v. Frazier, 388 Mass. 55 (1983).

An attorney’s liability for negligence has traditionally been limited to the attorney’s client. Savings Bank v. Ward, 100 U.S. 195 (1879). It is well established that there is no liability to third parties outside of the attorney-client relationship because privity of contract is required in professional negligence actions. David A. Barry, Legal Malpractice in Massachusetts, 63 Mass. L. Rev.

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Bluebook (online)
5 Mass. L. Rptr. 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormack-v-galego-masssuperct-1996.