Opinion
10-P-1372
10-19-2011
PREMIER CAPITAL, INC. v. C. RUTH WOOSTER, administratrix, & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We address the orders challenged on appeal in turn.
1. Premier's motion to amend. Plaintiff Premier Capital, Inc. (Premier), filed the complaint in the present action on October 24, 2006. On May 15, 2008, following its May 1, 2008, motion to amend the tracking order and notwithstanding the defendants' opposition, the original March 23, 2007, deadline for motions to amend and for completion of discovery was extended to August 15, 2008. On September 5, 2008, after the expiration of the extended deadline, Premier filed its motion to amend the complaint. The motion was opposed by the defendants and denied by the judge as untimely.
It sought to add the Probate and Family Court as a plaintiff, the administratrix of the estate individually as a defendant, a count for conversion, a count in equity, and additional factual allegations.
Premier did not move to extend the deadline for filing a motion to amend, did not give any reasons for its failure to file the motion to amend prior to the deadline, and did not support the motion by affidavit. The motion judge did not abuse his discretion in deciding that the motion was untimely. See Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004).
2. Premier's motion to compel discovery and to stay summary judgment proceedings. On October 6, 2008, Premier filed a motion, unsupported by affidavit, seeking the reopening of the depositions of the administratrix and counsel for the estate and the supplementation of their answers to interrogatories and document responses without an invocation of attorney-client privilege. Premier gave no reason for its failure to file the motion to compel prior to the expiration of the earlier-extended August 15, 2008, deadline for the completion of discovery or for its failure to file a motion to extend the discovery deadline.
'The conduct and scope of discovery is within the sound discretion of the judge.' Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987). A judge's order denying further discovery will not be reversed except for an abuse of discretion that causes prejudice. See Symmons v. O'Keeffe, 419 Mass. 288, 302 (1995). Here, the judge did not abuse his discretion by denying the motion. Furthermore, when confronted by the defendants' motion for summary judgment, Premier did not file a motion pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), setting forth how it was prejudiced by the lack of additional discovery.
3. Summary judgment. Premier's allegations of fraudulent misrepresentation and negligent misrepresentation turn on the defendant administratrix's failure to file a proper notice under Mass.R.Civ.P. 25(a)(1), 365 Mass. 771 (1974).
We agree with the motion judge that the failure of the administratrix to list the plaintiff as a creditor in the petition to refinance was not actionable by Premier as a misrepresentation where the alleged misstatement was made to the Probate and Family Court and there was no evidence of Premier's reliance upon it.
An omission in the face of a duty can in some circumstances amount to an actionable misrepresentation. Contrary to Premier's contention, our prior rule 1:28 decision in the breach of contract action against the decedent, Premier Capital, Inc. v. Hollett, 68 Mass. App. Ct. 1120 (2007), did not impose upon the administratrix a duty to inform Premier of the filing of the Probate and Family Court action or of her appointment as administratrix. Our decision addressed the narrow question whether the suggestion of death by the decedent's counsel was deficient under rule 25(a)(1) so that a finding of excusable neglect for Premier's delay in filing the motion to substitute 'The Estate of John Hollett' for 'John Hollett' in the Superior Court action was required, as was the allowance of Premier's motion to substitute. Our holding does not mean that the administratrix had, because of rule 25, any additional duty in this case to notify the plaintiff of the filing of the Probate and Family Court action or of the appointment of the administratrix. Indeed, although the suggestion of death did not name the administratrix, it did provide notice that there was a probate proceeding in a New Hampshire court, including the docket number. In the face of that information, Premier failed to take any action to protect its rights. Nor has it been made to appear that the administratrix had a duty under any other statute or rule to inform Premier either of the filing of the Probate and Family Court action or of her appointment of administratrix. Consequently, because Premier has put forth insufficient evidence to support a finding in its favor on an essential element of the misrepresentation claims, summary judgment on those two claims was properly granted. See, e.g., Kilroy v. Barron, 326 Mass. 464, 465 (1950) (elements of fraudulent misrepresentation); Golber v. BayBank Valley Trust Co., 46 Mass. App. Ct. 256, 257 (1999) (elements of negligent misreprentation).
The gross negligence claim turns on the administratrix's failure to list Premier as a creditor in the petition for refinance. Premier has demonstrated no error in the motion judge's conclusions that it was not, at the time of the petition, an estate creditor, and that the administratrix complied with all statutory and court-ordered notice requirements. Therefore summary judgment in favor of the administratrix was proper with respect to this claim as well.
Because we conclude that summary judgment for the administratrix was proper, summary judgment for the bond company, Harleysville Mutual Insurance Co., was, likewise, proper. See Wood v. Tuohy, 67 Mass. App. Ct. 335, 347 (2006), citing Harmon v. Weston, 215 Mass. 242, 246 (1913). Summary judgment for the administratrix's attorneys was also proper for the reason, if no other, that they had no duty of care toward Premier, her adversary. See Lamare v. Basbanes, 418 Mass. 274, 276 (1994).
The insufficiency of the summary judgment record to support essential elements of the causes of action alleged provides an independent basis for the summary judgment in favor of the administratrix's attorneys.
For the above reasons, the orders denying Premier's motions to amend and to compel discovery and stay summary judgment proceedings, and the judgment for the defendants, were not erroneous.
Judgment affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),