Sturbridge Isle Realty Corp. v. Brown

13 Mass. L. Rptr. 607
CourtMassachusetts Superior Court
DecidedSeptember 5, 2001
DocketNo. 9902050F
StatusPublished

This text of 13 Mass. L. Rptr. 607 (Sturbridge Isle Realty Corp. v. Brown) 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
Sturbridge Isle Realty Corp. v. Brown, 13 Mass. L. Rptr. 607 (Mass. Ct. App. 2001).

Opinion

Kottmyer, J.

This is an action for the breach of implied covenant of good faith and fair dealing (Count I), negligence (Count II), and deceit and misrepresentation (Count III) brought by Sturbridge Isle Realty Corporation (“SIR”) against Wayne Brown (“Brown”). SIR alleges that Brown misrepresented his credentials in materials submitted to SIR and that it relied on the accuracy of the representations by retaining him as an expert witness in pending litigation. This matter is before the court on SIR’S motion for partial summary judgment on Count III. After hearing and review, for the reasons discussed below, SIR’S motion for partial summary judgment shall be ALLOWED.

SUMMARY JUDGMENT RECORD

In 1993 SIR became involved in a series of lawsuits with Joan Bassett and other members of the Bassett family and Sturbridge Isle Restaurant Corp. (“the Bassett litigation”). The Bassett litigation concerned a piece of property commonly known as the Sturbridge Isle truck stop on Interstate 84 in Sturbridge, Massachusetts. SIR leased part of the property to the Bassetts to operate a restaurant thereon. SIR brought a summary process action against the Bassetts and the Bassetts counter-sued for fraudulent misrepresentation, breach of contract and conversion.

In 1996, Alan Cohan, a property manager for SIR, contacted Brown and told him that SIR was involved in litigation and was seeking an expert witness to assist in the case. Brown, by letter dated January 25, 1996, sent SIR a general overview of his practice and a “Backgrounder.” The “Backgrounder” described Brown’s experience in the restaurant, lodging and food industry. In addition, the “Backgrounder” stated that Mr. Brown “has taught at Boston University, Syracuse University, and Johnson and Wales University and is a graduate of Boston University with both undergraduate and graduate education in management, finance and communications.”

SIR hired Wayne Brown as an expert witness in connection with economic issues raised in the lawsuit, including the Bassetts’ claims for lost profits. In deciding to hire Brown and to use him as a witness, SIR relied upon the accuracy of Brown’s representations as to his educational and professional accomplishments because SIR knew that any misstatements of fact would adversely affect Brown’s credibility as a witness.

It is undisputed that Brown never held a faculty or adjunct teaching position at Boston University, Syracuse University or Johnson and Wales University. Brown lectured at Boston University once or twice on public relations topics in the 1970s. He was a seminar leader for two two-hour seminars held at Syracuse University which were sponsored by the U.S. Chamber of Commerce on behalf of the Institute of Organizational Management in the 1970s.

During the course of the Bassett litigation, Brown also provided a copy of his resume to SIR’S attorney. The education section of his resume stated that Brown attended Graduate School at Boston University. Specifically, his resume reads “General Management/Finance/Marketing/Law Graduate School, Boston University/Market Research, Broadcasting and Film Graduate School, Boston University.” The education section also stated that Brown attended the Institute for Organizational Management, Syracuse University. The latter program consists of 1-2 week seminars during the summer held at Syracuse University which are sponsored by the U.S. Chamber of Commerce on behalf of the Institute of Organizational Management.

In response to plaintiff s Interrogatory No. 3 signed under the pains and penalties of perjury on July 25, 2000, Brown stated that he “was awarded a Masters of Business Administration Degree from Boston University in August of 1973, from the College of Business Administration.” In a deposition taken in this action on July 27, 2000, Brown testified under oath that he took graduate level courses and received an MBA from Boston University in 1973.

While Brown did receive his undergraduate degree in Public Relations with a 2.27 GPA from Boston University in August of 1970, there is no record that he ever attended Boston University in a graduate capacity although Boston University conducted a thorough search for such records. At deposition, Brown did not recall the name of his advisor, the name of a single professor who taught him in a graduate capacity, the name of a single graduate course he took, the name of a single classmate from his graduating class (before being prompted with a list of students), or whether he received financial aid. He has been unable to produce a diploma or any other documentation (financial records, grades etc.) to show that he attended graduate school at Boston University. Brown argues that Boston University Associate Registrar David Micus (“Micus”) is not disclosing the records proving such attendance because Micus initially made a mistake when answering a subpoena and now is trying to “cover! ] his tracks, — rather than divulge he made a mistake when he responded that Brown did not attend Boston University in a graduate capacity.”1

One week before testifying at the Bassett trial, Brown was deposed by the Bassetts. He was asked [608]*608whether he had an MBA degree. Brown testified, under oath, that he had obtained an MBA from Boston University.

Brown testified on the next-to-last day in the Bassett five-week trial. At trial, he once again stated that he had obtained an MBA from Boston University. On the last day of trial the Bassetts’ attorney called Micus who testified that he had conducted a search and found no record that Brown had earned an MBA degree from Boston University. The jury returned a verdict against SIR in the amount of $278,057.40.

SIR would not have hired and continued to use Brown as an expert witness in the Bassett litigation had it known that Brown had misrepresented his academic and professional credentials in the Backgrounder, on his resume and at his deposition. SIR' paid Brown $33,771.51 for his services as an expert witness before learning that Boston University had no record that he attended graduate school or received an MBA.

DISCUSSION

This Court grants summary judgment where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat [the motion].” Pederson v. Time Inc., 404 Mass. 14, 17 (1989); Madsen v. Erwin, 395 Mass. 715, 719 (1985).

SIR contends that it is entitled to recover the fees it paid to Brown for expert services on the grounds of deceit. This Court agrees.

In an action for intentional misrepresentation or deceit, a plaintiff must prove "that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon such representation as true and acted upon it to his damage.” Barrett Assoc., Inc. v. Aronson, 346 Mass. 464, 465 (1950).

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340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Riley v. Presnell
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Zimmerman v. Kent
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Madsen v. Erwin
481 N.E.2d 1160 (Massachusetts Supreme Judicial Court, 1985)
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Bluebook (online)
13 Mass. L. Rptr. 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sturbridge-isle-realty-corp-v-brown-masssuperct-2001.