McEneaney v. Chestnut Hill Realty Corp.

650 N.E.2d 93, 38 Mass. App. Ct. 573, 1995 Mass. App. LEXIS 431
CourtMassachusetts Appeals Court
DecidedMay 17, 1995
DocketNo. 94-P-208
StatusPublished
Cited by66 cases

This text of 650 N.E.2d 93 (McEneaney v. Chestnut Hill Realty Corp.) 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
McEneaney v. Chestnut Hill Realty Corp., 650 N.E.2d 93, 38 Mass. App. Ct. 573, 1995 Mass. App. LEXIS 431 (Mass. Ct. App. 1995).

Opinions

Porada, J.

On August 21, 1987, the plaintiff purchased a condominium at the Brook House in Brookline. At the time of the purchase he inquired of the real estate agent, the defendant Brenda Marsh, whether the condominium was quiet and was assured by her that “the unit was quiet and that there [were] no noise problems with the unit.” In June, 1990, the plaintiff began to experience noise and vibrations in his condominium after an air conditioning chiller system which was in place in a common area of his building but was inoperative at the time of purchase was activated. When the noise level and vibrations were not remedied by the trustees of the Brook House Condominium Trust, he filed an action in the Superior Court against Marsh and her employer, Chestnut Hill Realty Corporation (Chestnut Hill), for misrepresentation and against the trustees for nuisance and breach of fiduciary duty.

In response to the plaintiff’s complaint, all the defendants filed motions to dismiss for failure to state a claim under Mass. R.Civ.P. 12(b) (6), 365 Mass. 755 (1974). A judge of the Superior Court dismissed the claims against Marsh and Chestnut Hill on the ground that the statements made by Marsh about the quietness of the apartment were mere expressions of opinion and, thus, not actionable. The judge also ruled that these claims were barred because the plaintiff failed to allege any facts showing that the realtor’s statements were untrue when made.

The judge dismissed the claims against the trustees on the ground that an action for private nuisance lies only where there are two separate parcels of land, one on which the nuisance exists and another whose occupants are burdened by the nuisance. Here, the judge determined that the alleged nuisance was located on the same parcel of land as the plaintiff’s unit because the plaintiff possessed an ownership interest both in his unit and in the common areas from which the offending condition emanated. He concluded that the plaintiff’s claim for breach of fiduciary duty must also fail be[575]*575cause it was predicated on the trustees’ maintenance of a nuisance.

The plaintiff filed this appeal from the judgment dismissing his complaint. We reverse for the reasons stated.

1. The misrepresentation claims. The plaintiff claims that the judge erred in dismissing the misrepresentation claims because Marsh’s statement was indeed a statement of fact and sufficient facts were alleged in the complaint to challenge its truthfulness. We agree.

A claim for misrepresentation requires that a plaintiff show a false statement of material fact made to induce the plaintiff to act and reliance on the false statement by the plaintiff to his detriment. Zimmerman v. Kent, 31 Mass. App. Ct. 72, 77 (1991). The distinction between a statement of fact and a statement of opinion is often a difficult one to draw. Fogarty v. Van Loan, 344 Mass. 530, 532 (1962). “A representation is one of opinion if it expresses only (a) the belief of the maker, without certainty, as to the existence of a fact; or (b) his judgment as to quality, value, authenticity, or other matters of judgment.” Restatement (Second) of Torts § 538A (1977). In some circumstances, however, a statement that in form is one of opinion may constitute a statement of fact if it may reasonably be understood by the recipient as implying that there are facts to justify the opinion or at least that there are no facts that are incompatible with it. Briggs v. Carol Cars, Inc., 407 Mass. 391, 396 (1990) (car dealer’s representation that car was in “good condition” was construed to be statement of fact). Restatement (Second) of Torts § 539. This is particularly true where the maker is understood to have special knowledge of facts unknown to the recipient. Restatement (Second) of Torts § 539. In this case, it was reasonable for the plaintiff to infer that the real estate agent knew facts to justify her opinion based upon the fact that her employer, Chestnut Hill, maintained an office at Brook House as an on-site realtor and had been involved in the sale of the units from the time of the complex’s original conversion into condominiums. In these [576]*576circumstances, we construe the statement made by the defendant Marsh to be a statement of fact.

Marsh and Chestnut Hill argue that, even if Marsh’s statements were ones of fact, the claims must fail because the plaintiff has failed to allege facts indicating that they were false when made. See Morgan v. Financial Planning Advisors, Inc., 701 F. Supp. 923, 927 (D. Mass. 1988). As proof of this, they point to the plaintiff’s allegation that the noise and vibrations did not surface until almost three years after the plaintiff’s purchase. Although this is so, we conclude that the plaintiff’s allegation that Marsh and Chestnut Hill “were aware of an historical noise and vibration problem in the particular unit being shown to [the plaintiff] at the time [the statements were made,] as well as [in] the building in which the unit exists” was sufficient to challenge the truthfulness of the statements when made. Although the plaintiff does not specifically tie this historical problem to the operation of the air conditioning chiller system, he does allege that this system was inoperative at the time of his purchase of the unit and that he did not experience the noise and vibrations in his unit until it was activated in June, 1990. From these allegations, one could reasonably infer that the noise and vibration problem was related to the air conditioning chiller system. See Nader v. Citron, 372 Mass. 96, 98 (1977) (in considering a motion to dismiss, the court must consider all the allegations of the plaintiff’s complaint as well as any reasonable inferences that can be made therefrom). Further, the realtor’s statements imply that she knew of no facts incompatible with the statements made. From the plaintiff’s allegations in this action, one may infer that such was not the case when the statement was made. Cf. Briggs v. Carol Cars, Inc., 407 Mass. at 396.

Finally, Marsh and Chestnut Hill assert that the statute of limitations for a claim of misrepresentation had lapsed by the time the plaintiff filed suit.2 The statute of limitations for this type of action is three years. G. L. c. 260, § 2A. The [577]*577plaintiff filed his complaint almost six years after the alleged misrepresentation was made. However, in this type of action, the cause of action does not accrue until the time that the plaintiff learns or reasonably should have learned of the misrepresentation. Kent v. Dupree, 13 Mass. App. Ct. 44, 47 (1982). In this case, the plaintiff alleges that the noise and vibrations did not surface until June, 1990, when the air conditioning chiller system, which had been in place in his building at the time of purchase but was inoperative, was activated. We conclude that these allegations are sufficient to withstand a motion to dismiss, because the statute was tolled until the plaintiff experienced the noise and vibration in the unit in June, 1990. Since this action was commenced on May 17, 1993, the statute of limitations is not a bar.

2. Nuisance. The plaintiff argues that the judge erred in dismissing the nuisance claim against the trustees because he failed to take into account the unique relationship between the property interest possessed by the owner in his own unit and his interest in the common areas and facilities.

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Cite This Page — Counsel Stack

Bluebook (online)
650 N.E.2d 93, 38 Mass. App. Ct. 573, 1995 Mass. App. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mceneaney-v-chestnut-hill-realty-corp-massappct-1995.