Vassilev v. Priest

82 Mass.App.Ct. 1118

977 N.E.2d 105

Michael VASSILEV & another ¹

v.Alfred I. PRIEST, Jr. & others.²

No. 10–P–2222.

Appeals Court of Massachusetts.

October 25, 2012.

OPINION TEXT STARTS HEREBy the Court (RAPOZA, C.J., MILLS ³ & GRAHAM, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs, Michael and Tsveta Vassilev, purchased residential property from the defendants, Alfred and Dolores Priest. The plaintiffs filed a complaint against the defendants alleging breach of contract and breach of the implied covenant of good faith and fair dealing regarding the noncompliance of their septic system with Title 5. See 310 Code Mass. Regs. §§ 15.000 et seq. (1995). A judge of the Superior Court granted the defendants' motion for summary judgment and the plaintiffs appeal. The plaintiffs argue that the judge erred as a matter of law in granting the defendants' motion where (1) there was evidence supporting their claim that the defendants knew or should have known that the Title V certification (certification) falsely stated that the septic system was in compliance; (2) during litigation, the defendants concealed that they were acquaintances of Robert McCart, who provided the certification; (3) count III of the complaint, alleging fraudulent misrepresentation, did not raise a claim solely against McCart; and (4) there was evidence of fraud that made the fraudulent misrepresentation exception to the merger doctrine apply to the breach of contract claim. For the reasons we shall discuss, we agree that summary judgment appropriately was allowed in favor of the defendants.

Discussion. Our review of a grant of summary judgment is to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Miller v. Mooney, 431 Mass. 57, 60 (2000), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Entry of summary judgment will be upheld when there are no genuine issues of material fact and the “nonmoving party has no reasonable expectation of proving an essential element of its case.” Miller, supra. The nonmoving party's failure to prove an essential element of his case “renders all other facts immaterial” and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Knowledge of alleged false statements. The essence of the plaintiffs' argument is that there was sufficient evidence in the record to support their claim that the defendants knew or should have known that the septic system was not in compliance with Title V because an in-ground swimming pool was located over an abandoned leaching field. The plaintiffs further allege that the defendants conspired with McCart with respect to his allegedly false certification. Specifically, they argue that (1) Alfred was a Massachusetts certified real estate salesperson, who should have been aware of the Title V requirements; (2) the existence of two different certifications authored by McCart indicated that the defendants knew the septic system did not comply with Title V and that they conspired with McCart to conceal that fact; and (3) during litigation, the defendants concealed that they were acquaintances of McCart.

These assertions owe more to speculation than to the record before us. The plaintiffs have not demonstrated that they have a reasonable expectation of proving the essential elements of their case against the defendants. We start with the assertion that Alfred, because he was certified as a real estate salesperson, should have realized the falsity of McCart's certification that the septic system was in compliance with Title V. Alfred's status as a real estate salesperson, however, did not support the inference that he had a working knowledge of Title V beyond knowing that a Title V certification, which he did obtain, was required to sell a property. Even were we to assume that as a real estate salesperson he was aware that Title V prohibits certain structures from being located over a leaching field, there is nothing in the summary judgment record to indicate that his knowledge of the conditions on his property went beyond what was on the Title V certification that McCart provided. Indeed, the certification that was filed with the town and provided to the defendants did not indicate that such a structure, in this case an in-ground pool, was located over the leaching field in question.

The plaintiffs next point to the fact that McCart apparently drafted two Title V certifications that were identical, but for the fact that one indicated the location of the pool on the property, and the other did not. McCart filed the latter version with the town, from which the plaintiffs conclude that the defendants conspired with McCart to conceal the fact that the property was not in compliance with Title V. Based on the record before us, we view the allegation that McCart and the defendants conspired to...