371 Mass. 894

October 29, 1976

In this action commenced in August, 1974, by a client against his attorney for malpractice, the defendant's motion for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974), was granted by a judge of the Superior Court. We reverse. From the pleadings and other material offered in support of and in opposition to the motion, the following must be taken as not shown to be incapable of proof. The plaintiff retained the defendant to pursue remedies for personal injuries suffered in an industrial accident in September, 1967. On the defendant's advice, the plaintiff did not accept workmen's compensation benefits. The defendant on the plaintiff's behalf commenced an action in the Superior Court against two "third parties" (see G. L. c. 152, Section 15, as in effect at the date of the accident; Goldstein v. Gontarz, 364 Mass. 800, 810 n. 8 [1974]; dissenting opinion at 818 n.1), but a judgment was entered in favor of one of these parties in December, 1969, because of the defendant's negligent failure to see to the answering of interrogatories, and a judgment was entered in favor of the other party in October, 1971, through the defendant's negligence in failing to respond to a trial call. The plaintiff was not advised of the outcome of the action against the third parties; rather he was informed that the action was awaiting trial, and it was not until May, 1974, that he learned the facts through another attorney retained by him. About the same time he learned that the defendant had filed a workmen's compensation claim against the employer which was pending. Contending for summary judgment, the defendant says with respect to the action against the third parties that any negligence on his part was immaterial because the defense of so called "common employment" would anyway have succeeded. This is not demonstrated since "[t]he question of common employment is normally a question of fact for the jury" (MacKay v. Ratner, 353 Mass. 563, 565 [1968]; see Carr v. Arthur D. Little, Inc., 348 Mass. 469, 474 [1965]; McPadden v. W. J. Halloran Co., 338 Mass. 189, 192 [1958]), and the defendant presents no facts on the matter apart from a bare assertion. Moreover, if the action was plainly ill grounded, there may have been negligence in the advice given to the plaintiff and in the institution of that action. (Whether the workmen's compensation claim has been prejudiced in any way remains unclear.) Especially in view of the claimed nondisclosure by the defendant to the plaintiff of the result of the action against the third parties, it is not demonstrated that the present action is time barred. Hendrickson v. Sears, 365 Mass. 83 (1974). Summary judgment is thus inappropriate as genuine issues remain regarding facts material to the malpractice charge. See Rule 56 (c), 365 Mass. 824 (1974).

Judgment reversed.


371 Mass. 894

December 7, 1976

The assessors appeal from the determination by the Appellate Tax Board (board) of the fair cash value on January 1, 1974, of a partially completed motel owned by Ramada Inns, Inc. (Ramada). The assessors (a) challenge the use by Ramada's expert of the cost of construction

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of the motel as a basis for his opinion of the motel's fair cash value, arguing that his testimony should have been struck on their motion; (b) challenge the board's determination that the motel was seventy-five per cent completed on January 1, 1974; and (c) argue that there was no evidence to support the board's finding of fair cash value. (a) The admissibility of the opinion of Ramada's expert is contested on the ground that the cost of construction was not a proper method of valuing the premises using the "reproduction cost less depreciation" method of valuation and on the ground that the expert relied on hearsay evidence of construction costs. Although Ramada contracted with a subsidiary to construct the motel, almost ninety per cent of its cost was established by subcontractors' bids. In determining the fair cash value of an unfinished building, it was within the discretion of the board to rely on the cost of construction. See Jordan Marsh Co. v. Assessors of Quincy, 368 Mass. 322, 324 (1975), and cases cited. An appraisal by Ramada's expert, showing the cost of construction of the motel, was admitted in evidence without objection. A motion to strike his testimony, which also presented the cost of construction of the motel, was based on "lack of foundation and lack of proper method." These general grounds did not fairly raise the hearsay objection, concerning the admission of construction costs, which is now asserted. This is not a case where a real estate expert testified concerning reproduction costs, a subject beyond his area of qualification. See Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 519-520 (1952). In any event, if the assessors wished to challenge the expert's presentation of the cost of construction, they should have made a timely objection, rather than a motion to strike. Commonwealth v. Theberge, 330 Mass. 520, 527 (1953). There was no abuse of discretion in denying the motion to strike. (b) There was ample evidence warranting the board's finding that the motel was seventy-five per cent completed on January 1, 1974. (c) There also was substantial evidence to support the board's finding of the fair cash value of the motel on January 1, 1974. The decision of the Appellate Tax Board is affirmed. Ramada is to have costs of appeal.

So ordered.