Doherty v. Admiral's Flagship Condominium Trust
951 N.E.2d 936
Mass. App. Ct.2011Background
- Plaintiff Denise Doherty purchased a condo in Admiral’s Flagship in 2002; leaks began in 2004 damaging her unit; the building’s common areas were managed by Lundgren and repaired by Design; mold was discovered after grinding mold testing in 2006; remediation failed and mold persists; plaintiff filed suit on Feb 13, 2009 alleging negligence, nuisance, trespass, misrepresentation, and breach of contract against the trust, Lundgren, and Design.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the tort claims are time-barred or tolled | Doherty's negligence claim tolls under discovery rule due to mold discovery in 2006 | Harm occurred at initial leak; discovery rule not applicable | Discovery rule applies to negligence; claim not time-barred |
| Whether trespass and nuisance claims are timely via continuing conduct | Leaks continued from 2004 through filing; continuing nuisance/trespass tolls | Only a single 2004 leak; no continuing conduct pleaded | Counts I-II timely based on continuing leaks |
| Whether third-party beneficiary contract claims are cognizable | Counts VI-VII plead third-party beneficiary status | No explicit intent to create third-party beneficiary; pleadings insufficient | Third-party beneficiary claims properly dismissed |
| Whether the trial court abused its discretion in denying amendment to counts | Amendment to count V changes the contract theory to a separate contract; should be allowed | Amendment denied as to counts VI-VIII but count V should be allowed; remand for amendment on count V |
Key Cases Cited
- Iannacchino v. Ford Motor Co., 451 Mass. 623 (Mass. 2008) (pleading requires plausible entitlement to relief)
- Bowen v. Eli Lilly & Co., 408 Mass. 204 (Mass. 1990) (discovery rule tolls accrual when harm is possible to identify)
- Donovan v. Phillip Morris USA, Inc., 455 Mass. 215 (Mass. 2009) (requires knowledge of harm and cause for discovery rule)
- Carpenter v. Texaco, Inc., 419 Mass. 581 (Mass. 1995) (continuing nuisance/trespass concept)
- Cumis Ins. Soc., Inc. v. BJ’s Wholesale Club, Inc., 455 Mass. 458 (Mass. 2009) (third-party beneficiary pleading requires explicit intent in contract terms)
- Beaconsfield Townhouse Condominium Trust v. Zussman, 49 Mass. App. Ct. 757 (Mass. App. Ct. 2000) (limits on discovery-rule extension for certain injury claims)
- Mansfield v. GAF Corp., 5 Mass. App. Ct. 551 (Mass. App. Ct. 1977) (accrual when leaks were known during limitations period)