COMMONWEALTH OF MASSACHUSETTS Suffolk, ss. Superior Court Docket No.: SUCV2011-00055-H Associated Asset Management, LLC. Plaintiff v. Gracelyn Roberts Defendant/Third Party Plaintiff v. James J. Alberino Third Party Defendant Third Party Defendant s Memorandum In Support Of Motion For Summary Judgment Pursuant To Mass. R. Civ. P. 56 A. Preliminary Statement The instant case involves a mortgage obtained by Gracelyn Roberts, the defendant/third party plaintiff in this case, in October of 2004. Roberts made no payments on the mortgage and defaulted shortly thereafter. In 2012, she filed a complaint against the holder of the note alleging various fraudulent activity, and in 2013, she filed a third party complaint naming as the third party defendant James Alberino, who was an attorney who witnessed her signature and notarized the mortgage and the note. As will be discussed below, the statute of limitations has long since passed. Further, Roberts has offered no evidence establishing that Alberino engaged in any
type of fraud or that any such fraud was the cause of her damages. Alberino is entitled to judgment as a matter of law. B. Issues Presented 1. Whether Alberino is entitled to summary judgment where the statute of limitation ran long before the filing of the complaint or third party complaint and where nothing in the record could support an argument that the time for filing a complaint has been tolled. 2. Whether Alberino is entitled to summary judgment where Roberts has failed to offer any evidence that he engaged in fraudulent activity and merely speculates that he must have engaged in such fraud. 3. Whether, assuming the truth of Roberts allegations that Alberino included false information in an effort to inflate her income, she is entitled to no relief where she admits that she purchased the subject property and applied for the mortgage, where she failed to pay the mortgage, and where the allegedly false information therefore could not have resulted in her alleged damages. C. Facts The facts relevant to this motion are set forth in the accompanying Statement of Material Facts. D. Legal Elements The relevant legal elements are set forth in the accompanying Statement of Legal Elements. 2
E. Summary Judgment Standards Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law. Ng Brothers Const., Inc. v. Cranney, 436 Mass. 638, 633-634 (2002). See Morrison v. Toys R Us, Inc., 441 Mass. 451, 454 (2004); Hakim v. Massachusetts Insurers Insolvency Fund, 424 Mass. 275, 283 (1997); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). A motion for summary judgment should be allowed if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56(c). See Cassesso v. Commissioner of Correction, 390 Mass. at 422. While the moving party bears the initial burden of showing the absence of adequate evidence supporting the nonmoving party s theories, once the moving party has made such a showing, the nonmoving party must come forward with facts that show a genuine issue for trial. See Ng Brothers Const., Inc. v. Cranney, 436 Mass. at 634; Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir. 1997); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993). [N]either conclusory allegations [nor] improbable inferences are sufficient to defeat summary judgment. J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996) (internal quotation marks 3
omitted). See Madsen v. Erwin, 395 Mass. 715, 721 (1985); Davidson v. General Motors Corp., 57 Mass. App. Ct. 637, 638 (2003). Rather, to withstand a properly supported motion for summary judgment, the opposing party must present enough competent evidence to enable a fact finder to decide in its favor on the disputed claims. Haverty v. Commissioner of Correction, 437 Mass. 737, 754 (2002); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. at 648 ( An adverse party may not manufacture disputes by conclusory factual assertions; such attempts to establish issues of fact are not sufficient to defeat summary judgment ); Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 696 (1993) (affidavit must set forth specific facts showing genuine issue for trial; bare assertions and conclusions not enough to withstand well-pleaded motion for summary judgment). See Goldman v. First Nat l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Evidence that is merely colorable or is not significantly probative cannot deter summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-250 (citations omitted); Carroll v. Xerox Corp., 294 F.3d 231, 236-237 (1st Cir. 2002). See also McGurn v. Bell Microproducts, Inc., 284 F.3d 86, 91 (1st Cir. 2002). Finally, while the focus of the inquiry in a typical case is thus the sufficiency of the facts offered in support of a party s claims, [a] complete failure of proof concerning an essential element of the non-moving party s 4
case renders all other facts immaterial. Kourouvacilis, 410 Mass. at 711, citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Argument F. Alberino Is Entitled To Summary Judgment Where The Statute Of Limitation Ran Long Before The Filing Of The Complaint Or Third Party Complaint And Where Nothing In The Record Could Support An Argument That The Time For Filing A Complaint Has Been Tolled Statutes of limitations represent a policy determination that plaintiffs must bring their grievances to court in a timely manner. See Franklin v. Albert, 381 Mass. 611, 618 (1980), quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879) (statutes of limitations are vital to the welfare of society [,]... promot[ing] repose by giving security and stability to human affairs ). Under the relevant statute of limitations, a contract action must be commenced within six years after the cause of action accrues. See G.L. c. 260, 2. Tort actions must be commenced within three years after the cause of action accrues. See G.L. c. 260, 2A. Fraud claims sounding in contract must be commenced within six years, and fraud claims sounding in tort must be commenced within three years. See Barber v. Fox, 36 Mass. App. Ct. 525, 529 (1994); Solomon v. Birger, 19 Mass. App. Ct. 634, 637 (1985). A breach of contract claim generally accrues at the time of the breach, even when the amount of damages is unknown or if damages are not sustained until later. DiGregorio v. Commonwealth, 10 Mass. App. Ct. 861, 862 (1980). A tort claim is subject to a similar rule it accrues at the time of the alleged tort. Of course, under the discovery rule, a cause of action 5
generally does not accrue until the injured party knows or should have known of the facts giving rise to the cause of action. See Koe v. Mercer, 450 Mass. 97, 101 (2007). Further, where a defendant fraudulently conceals the facts giving rise to a cause of action from the plaintiff, the statute of limitations is tolled until the plaintiff discovers those facts. See G.L. c. 260, 12; Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 517-518 (1997). In this case, both the complaint filed against Roberts and the third party complaint filed against Alberino were brought well after the running of both the tort and contract statute of limitations. Further, Roberts points to no facts that would toll the limitations period. She does not allege that the mortgage or note bearing her signature were provided to her, she knew she had made no mortgage payments, and by 2006 at the latest, she knew that she had defaulted on the mortgage. Thus, assuming the truth of her allegations, she cannot recover, and Alberino is entitled to judgment as a matter of law. G. Alberino Is Entitled To Summary Judgment Where Roberts Has Failed To Offer Any Evidence That He Engaged In Fraudulent Activity And Merely Speculates That He Must Have Engaged In Such Fraud To recover in tort on a claim of fraud or deceit, Roberts must prove that [Alberino] made a false representation of a material fact with knowledge of its falsity for the purpose of inducing [her] to act thereon, and that [she] relied upon the representation as true and acted upon it to [her] damage. Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982), quoting 6
Barrett Assocs. v. Aronson, 346 Mass. 150, 152 (1963). See Chan v. Chen, 70 Mass. App. Ct. 79, 82 (2007) (fraud requires proof that defendant knowingly made a false statement of material fact, intending that the plaintiff rely thereon, and upon which the plaintiff did rely ). Allegations of fraud must be stated with particularity. Mass. R. Civ. P. 9(b). In this case, Roberts merely speculates that Alberino engaged in the claimed fraud based on the fact that he witnessed and notarized the mortgage and note. 1 That is, she claims that when she signed the mortgage application, the fraudulent information i.e., the false statement that she held a second job, boosting her stated income was not on the form. She speculates that because it was added at some later time, Alberino must have personally added this information. However, she offers no proof that he added such information or was otherwise aware of the false information. Ultimately, the factual allegations on her fraud complaint are speculative and conclusory and fail to plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (complaint need not contain detailed facts but must contain more than mere labels and conclusions and must plausibly suggest an entitlement to relief). 1 At most, the evidence might support an inference that Alberino assisted or handled the closing, although ten years after the fact, he has no memory of doing so. 7
H. Assuming The Truth Of Roberts Allegations That Alberino Included False Information In An Effort To Inflate Her Income, She Is Entitled To No Relief Where She Admits That She Purchased The Subject Property And Applied For The Mortgage, Where She Failed To Pay The Mortgage, And Where The Allegedly False Information Therefore Could Not Have Resulted In Her Alleged Damages Finally, assuming that Alberino did in fact include false information in the mortgage application in an effort to inflate Roberts income, she is entitled to no relief where she failed to prove that she was damaged by such action. Roberts admits that she purchased the subject property, that she applied for the mortgage, and that she defaulted on the mortgage by failing to make a single payment. In essence, she now argues that the defendant had a duty to protect her from herself. Where she was not Alberino s client, he had no such duty. See Logotheti v. Gordon, 414 Mass. 308, 312 (1993) (affirming allowance of motion to dismiss attorney defendant); Spinner v. Nutt, 417 Mass. 549 (1983) (same); Da Roza v. Arter, 416 Mass. 377, 381 (1993). See also Fistel v. Favolaro, 63 Mass. App. Ct. 651 (2005) (purchaser relied to her peril on lending bank's attorney). Further, and perhaps more important, Roberts cannot show that she was damaged in any way by Alberino s alleged actions. Again, she sought to purchase the property and took out the loan for the stated amount. She does not allege that Alberino played any part on her subsequent decision not to pay the mortgage. In these circumstances, there was no causal connection between the alleged wrongdoing and Roberts claimed damages. See McCann v. Davis, Malm & D'Agostine, 423 Mass. 558, 560 (1996) (law firm s actions did not damage the plaintiff where, notwithstanding the 8
claimed wrongful conduct, subsequent events caused the bank to foreclose on his interests in two corporations). Alberino is entitled to judgment as a matter of law. I. Conclusion Where the alleged facts, viewed in the light most favorable to Roberts, conclusively establish that she is entitled to no relief, summary judgment should enter on Alberino s behalf. Respectfully submitted, James J. Alberino, By his attorney, 9