Home DAVID BOGAN and another [Note 1] v. EAGLE EYE INSPECTION SERVICES, INC. and another [Note 2]

2020 Mass. App. Div. 58

November 8, 2019 - April 30, 2020

Appellate Division Southern District

Court Below: District Court, Barnstable Division

Present: Finnerty, P.J., Finigan & Cunis, JJ.

Seth G. Roman for the plaintiffs.

Bernard W. Schranze for the defendant.

FINIGAN, J. This is an appeal of a decision by a District Court judge to apply retroactively an amendment to G.L. c. 112, § 225, which reduced the time during which suit may be brought against a residential home inspector from three years to two years from the date of the inspector's written report. For the reasons set forth below, we reverse the judge's decision to dismiss the action.

The underlying facts of this case are not in dispute. When the plaintiffs, David Bogan and Heather Hunt, sought to purchase a home in Osterville, Massachusetts late in 2015, they engaged the services of Eagle Eye Inspection Services, Inc. ("Eagle Eye") to conduct a home inspection of the property in advance of the closing. Defendant Ralph Crossen is the president of Eagle Eye and a registered home inspector in Massachusetts. Eagle Eye completed the inspection and furnished its findings to the plaintiffs in a written report dated December 28, 2015.

The plaintiffs purchased the home in February of 2016. Following the purchase, the plaintiffs discovered what they believed to be defects in the home that were not identified in the inspection report, namely, lack of a rubber roof membrane, an unfinished bay window, and improper venting in a bathroom, all of which led to moisture issues. In addition, the plaintiffs were of the belief the home suffered from electrical and plumbing problems.

The plaintiffs filed a complaint against the defendants on December 14, 2018, alleging breach of contract, negligence, misrepresentation, and a violation of the consumer protection act. The defendants responded by filing a motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted, namely, that the plaintiffs' action was time barred. After a hearing, the trial judge agreed with the defendants and dismissed the complaint. This appeal followed.

As a preliminary matter, we view the statute in question as a statute of repose. Prior to its amendment in 2016, the statute provided in relevant part: "Any action arising from a home inspection shall be commenced only within three years after the date of a completed written report of a home inspection by a home inspector." G.L. c. 112, § 225. The 2016 amendment substituted "2 years" for "three years."

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St. 2016, c. 219, § 95. The amendment took effect on August 10, 2016 as part of an emergency act.

A statute of limitations is a procedural measure that normally governs the time within which legal proceedings must be commenced after the cause of action accrues. McGuinness v. Cotter, 412 Mass. 617, 621-622 (1992). A statute of repose, on the other hand, completely eliminates a cause of action after the time period established has run without regard to the concept of accrual or of discovery. Id. at 622. The period in a statute of repose generally begins to run from some definitely established event, placing an absolute time limit on the liability of those within its protection and to abolish a plaintiff's cause of action thereafter, even if the plaintiff's injury is not discovered until after the statute's time limit has expired. Id. For these purposes, the plaintiff's time period began to run on December 28, 2015, the date of Eagle Eye's written report. The complaint was filed on December 14, 2018, outside of the two-year period now contained in the statute but within the three-year period of the statute as in effect on the day the inspection report was completed.

The remaining question is whether the amendment to the statute should be applied retroactively. We think not. Whether a statute applies to events occurring prior to the date on which the statute takes effect is a question of legislative intent. "[I]t is well settled that legislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms" (internal quotation omitted). Commonwealth v. Dotson, 462 Mass. 96, 101 (2012). See Quintal v. Commissioner of the Dep't of Employment and Training, 418 Mass. 855, 856 n.1 (1994) ("Absent language mandating retrospective application of an amendment, the amended statute should not be applied to conduct occurring prior to the effective date of the amendment."). Accordingly, an amendment to a statute applies retroactively only if it is unequivocally clear "from the words, context or objects" of the amendment that the Legislature intended it to be retroactive in operation. Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370, 376 (2012).

Here, nothing in the plain language of the amendment or the amendment's legislative history manifests an intent that the amendment be given retroactive effect. Cf. Sliney v. Previte, 473 Mass. 283, 284 (2015) (amending act contained retroactivity provision). The only aspect of the legislative history of relevance is the emergency designation given the amending act, and its purported purpose. [Note 3] An argument based on these same elements in favor of retroactivity was made in Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370 (2012), and was explicitly rejected by the Supreme Judicial Court. Id. at 377-378. In that case, where the amendments in question contained

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no express language of retroactivity, the defendant argued that the purpose of the amendments and the emergency nature nonetheless required retroactive application. This argument was rejected by the Court, which reasoned that "[i]f adopted, the [defendant's] argument would amount to a reversal of the general presumption against retroactivity." Id. at 377. While recognizing that "[t]o some degree, the purposes of almost any statute might be better achieved if the statute were applied retroactively," the Court nevertheless made clear, "[T]hat retroactive application of a new statute would vindicate its purpose more fully . . . is not sufficient to rebut the presumption against retroactivity" (internal quotations omitted). Id. The Court in Smith further noted that the Legislature's designation of the amending act as emergency legislation did not change this analysis, explaining that "[t]he inclusion of an emergency preamble demonstrates only that the Legislature intended the statute to take effect without regard for the ninety-day waiting period otherwise provided by art. 48 of the Amendments to the Massachusetts Constitution." Id. The same reasoning applies to the analogous facts of the instant case.

The judgment of dismissal is vacated, the allowance of the defendants' motion to dismiss is reversed, and this matter is returned to the trial court for further proceedings.


[Note 1] Heather Hunt.

[Note 2] Ralph Crossen.

[Note 3] The amendment reducing the repose period from three years to two years was approved on August 10, 2016, as part of an emergency act entitled, "An Act Relative to Job Creation and Workforce Development," and made effective on that same date. St. 2016, c. 219, § 95. The act included an emergency preamble that made it effective immediately on its enactment on August 10, 2016, rather than ninety days later as ordinarily required by art. 48 of the Amendments to the Massachusetts Constitution. Id. This preamble declared the act an "emergency law" and provided that the "deferred operation of this act would tend to defeat its purpose, which is to finance forthwith improvements to the Commonwealth's economic infrastructure and promote economic opportunity." Id.