MISC 124120

April 10, 1991

Plymouth, ss.



Plaintiff alleges that defendant through fraud and deceit induced defendant to execute and deliver a $14,200 note and a mortgage securing the note. Plaintiff prayed that this Court restrain a pending foreclosure of the mortgage and order the defendant to discharge the mortgage and cancel the note.

Defendant moved for Summary Judgement on the basis that the plaintiff's claims are barred by res judicia and applicable statutes of limitation. The parties filed a Stipulation of Facts and a Stipulation to Admissibility of Documents, stipulating as to the admission of 13 documents into evidence. Counsel argued the motion on April 3, 1991. In argument counsel for plaintiff stipulated that all issues of the case other than that of deceit had been adjudicated against plaintiff on the merits in an earlier action by his client, Doyle v. Currier, Plymouth Superior Court No. 82-16034, leaving this Court to pass on plaintiff's deceit claim. On the basis of the foregoing and the pleadings, I find and rule that there is no genuine issue as to any material facts and further find and rule for the defendant, as follows:

1. On June 7, 1966, plaintiff (then Donovan) conveyed a property at 32 Scituate Avenue, Scituate, Massachusetts (the "Scituate Property") to defendant in consideration of his payment of mortgage arrears and related expenses on the property and a second mortgage on the property and a chattel mortgage on a boat owned by her. The parties agreed that defendant would convey the property back to plaintiff upon payment of the sums, advanced. There are various disputes as to details of that transaction.

2. Plaintiff lived in the Scituate Property from 1968 to the end of 1970, paying occasional rent to defendant. At the end of 1970 or the beginning of 1971, plaintiff received an eviction notice from defendant and moved out of the property in 1971.

3. On September 6, 1972, defendant sold the Scituate Property to a Francis Reardon, subject to the first mortgage of $11,785.73 and took back a second mortgage of $11,714.27, and again took back a second mortgage of $13,000 when the property was resold to one Francis Healy on October 11, 1974.

4. On August 5, 1975, plaintiff (then Brady) purchased the property at 745 Franklin Avenue, Duxbury, Massachusetts (the "Duxbury Property") for $25,000. She contributed no funds of her own to the purchase, which was financed by $14,700 paid by defendant and the assumption of the seller's mortgage.

5. Defendant took back a second mortgage and note on the Duxbury Property in the amount of $14,200. Plaintiff signed the note and mortgage, and the latter was notarized and recorded.

6. Plaintiff alleges that she protested signing the note and mortgage on the grounds that defendant owed her the money he advanced because of the prior dealings between them concerning the Scituate Property. She alleges that she made repeated requests to defendant to discharge the mortgage on the Duxbury Property subsequent to the closing, to no avail.

7. Defendant made demand for payment of the mortgage at some point prior to February 5, 1982. Plaintiff consulted an attorney, John Wyman, Esq., and told him all facts concerning the Scituate and Duxbury Properties. Through her attorney, by letter dated February 5, 1982, plaintiff refused to pay the sum then due on the mortgage, demanded that the mortgage be discharged, and demanded an accounting of monies defendant allegedly held for her benefit on account of defendant's dealings in the Scituate Property.

8. On November 2, 1982, plaintiff filed a verified complaint against defendant in Plymouth Superior Court, Civil Action No. 82-16034, seeking a declaratory judgement that held a certain boat and the mortgage taken from the subsequent purchaser of the Scituate Property on a constructive trust for plaintiff (Count I), and that defendant had violated the attorney-client relationship he allegedly had with plaintiff and took unfair advantage of her for his financial gain (Count II).

9. Defendant moved in the Plymouth County action to dismiss Count I of the complaint as barred by the six-year statute of limitations, G.L. c. 260, §2, and Count II as barred by G.L. c. 260, §4 and as failing to state a claim. On February 1, 1983, the motion to dismiss was granted as to Count II, and plaintiff given thirty days to file a more definite statement as to Count I.

10. No further pleading was filed by plaintiff, and on June 2, 1983 the Plymouth County action was dismissed under Rule 12 (b) of the Massachusetts Rules of Civil Procedure. Plaintiff filed no appeal from that dismissal.

11. Thereafter defendant made various written demands for payment of the second mortgage on the Duxbury Property, and on April 17, 1987 commenced a foreclosure proceeding in the Land Court, Miscellaneous Case No. 122887.

12. On May 13, 1987, plaintiff filed a verified answer in the foreclosure proceeding, alleging that defendant had advanced the monies for the Duxbury Property in lieu of an accounting for the monies allegedly due her from the dealings in the Scituate Property, and had told her she would not have to make any payments on the mortgage she signed and that the mortgage would be discharged "at the right time", and otherwise making the same allegations with respect to the Scituate Property as were made in the 1982 Plymouth action. The foreclosure action was stayed by consent of the parties.

13. On July 21, 1987, plaintiff commenced the instant action, making the same allegations as in her answer to the foreclosure action and in the 1982 Plymouth action with respect to the dealings in the Scituate Property and again alleging that the sums advanced by defendant for the purchase of the Duxbury Property were in lieu of an accounting on the Scituate Property. An amended complant, purportedly eliminating any reference to the transactions concerning the Scituate Property raised in the Plymouth action, was filed on September 29, 1987. The amended complaint was duly answered by defendant after a motion to strike immaterial allegations was denied.

14. Plaintiff's claims relating to the Scituate Property were disposed of by the Plymouth Superior Court action referred to above. Accordingly, defendant did not owe plaintiff anything relating to the Scituate Property at the time of the acquisition of the Duxbury Property.

15. Plaintiff's sole remaining claim against defendant is that defendant was guilty of deceit or fraudulent misrepresentation against plaintiff in connection with the making of the loan on the Duxbury Property in 1975. No later than February 5, 1982 (the date of her lawyer's letter to defendant) plaintiff became aware of all the relevant facts concerning any alleged deceit or fraudulent misrepresentation by defendant in connection with the Duxbury Property.

16. Under G.L. c. 260, §2A, an action for deceit or fraudulent misrepresentation must be commenced within three years after the cause of action accrues; the cause of action accrues when the plaintiff learns or reasonably should have learned of the misrepresentation. Friedman v. Jablonski, 371 Mass. 482 (1976). Any such cause of action in connection with the Duxbury loan accrued no later than February 5, 1982, and since this action was commenced July 21, 1987, it is barred.

Judgement for defendant accordingly.