United States District Court, D. Massachusetts
LIZ D'ALLESSANDRO, JANE FREEMAN, TOD MCGRATH, JAY DRISCOLL, and MIKE NAPPI, As Trustees on behalf of the Hewitts Landing Condominium Trust, Plaintiff,
LENNAR HINGHAM HOLDINGS, LLC, HEWITTS LANDING TRUSTEE, LLC, LENNAR NORTHEAST PROPERTIES, INC. d/b/a LENNAR NORTHEAST URBAN, and LENNAR CORPORATION, Defendants.
MEMORANDUM & ORDER
Talwani United States District Judge
the court is Defendants/Third-Party Plaintiffs Lennar Hingham
Holdings, LLC, Hewitts Landing Trustee, LLC, Lennar Northeast
Properties, Inc. d/b/a Lennar Northeast Urban, and Lennar
Corporation's (collectively, “Lennar
Defendants”) Motion for Partial Summary
Judgment [#212]. The Lennar Defendants contend that the
claims brought by the Plaintiff Trustees on behalf of
Plaintiff Hewitts Landing Condominium Trust
(“Condominium Trust”) are partially barred by a
Massachusetts statute of repose, Mass. Gen. Laws ch. 260,
§ 2B. The court finds that only two of the Condominium
Trust's claims are tort claims subject to the statute of
repose, and that Defendants have failed to show that the
“improvements” for purposes of the statute of
repose relate to individual units or buildings, rather than
the Hewitts Landing Condominium (the
“Condominium”) as a whole. Accordingly,
Defendants' Motion for Partial Summary Judgment
[#212] is DENIED.
action arises out of the construction, marketing, sale, and
management of the Condominium. Lennar Northeast Properties,
Inc. d/b/a Lennar Northeast Urban (“Lennar
Northeast”) was the developer of the project.
Defs.' Third-Party Compl. ¶ 29 [#46]. Lennar Hingham
Holdings, LLC (“Lennar Hingham”) was the
contractor and construction manager for the project.
Id. Hewitts Landing Trustee, LLC (“Lennar
Trustee”) served as the trustee of the Hewitt Landing
Condominium Trust between 2010 and 2015. Pl.'s Compl.
¶ 18 [#1-1]; Lennar Corp.'s Answer ¶ 18 [#79].
Lennar Corporation (“Lennar Corp.”) is the parent
company of Lennar Northeast, Lennar Hingham, and Lennar
Trustee. Sustana Aff. ¶ 10 [#34-1].
Condominium was planned as a “phased condominium”
with a maximum of 150 units. Pl.'s Statement of
Undisputed Facts (“Pl.'s SOF”) ¶ 3
[#226]. Construction took place between 2008 and 2015.
Defs.' Statement of Undisputed Facts (“Defs.'
SOF”) ¶ 1 [#214]. Ultimately, Lennar built 150
units over the course of twenty-four phases of construction.
Pl.'s SOF ¶¶ 4, 6 [#226]. The units are
enclosed in twenty-eight different buildings. Id. at
¶ 4. The claims at issue relate to the common areas of
the Condominium construction was ongoing, the project's
architect would submit declarations to the Town of Hingham
swearing that individual units or individual buildings were
“substantially complete” and could be occupied
for their intended use. Defs.' SOF ¶ 6 [#214].
Shortly after such declarations were submitted, the Town of
Hingham issued certificates of occupancies for the unit or
building. See id. at ¶¶ 8-30. For six of
the buildings, the architect signed affidavits of substantial
completion for each unit in the building more than six years
before this action was commenced. Id. For five of
these six buildings, the Town of Hingham issued certificates
of occupancy for the buildings and all of their units more
than six years before this action commenced. Id.
25, 2010, while the construction was ongoing, Lennar Hingham
recorded the Master Deed of the Condominium with the Plymouth
County Registry of Deeds, thereby establishing the
Condominium as a legal entity. Defs.' SOF ¶ 2
[#214]. On the same date, Lennar Trustee executed a
Declaration of Trust, recorded in the Plymouth County
Registry of Deeds, establishing the Condominium Trust.
Pl.'s Compl. ¶ 1 [#1-1]; Lennar Corp.'s Answer
¶ 1 [#79]; Defs.' Third-Party Compl. ¶ 31
[#46]. The Trust is responsible for the operation of the
Condominium. See Pl.'s Compl. ¶¶ 16-19
[#1-1]; Lennar Corp.'s Answer ¶¶ 16-19 [#79];
Mass. Gen. Laws ch. 183A, § 1. Included in the
Condominium Trust's responsibilities is the operation,
maintenance, repair and/or replacement of the common areas
and limited common areas of the Condominium. Gorman Aff., Ex. A,
Hewitts Landing Master Deed 5-6 [#227-1]. The
responsibilities of the Trust are dictated not only by the
Declaration of Trust, but also by Massachusetts Statute.
See id.; Mass. Gen. Laws ch. 183A.
Trust was solely operated by Lennar Trustee from 2010 until
late 2015. See Defs.' SOF ¶ 1 [#214];
Pl.'s Compl. ¶¶ 1, 15, 18 [#1-1]; Lennar
Corp.'s Answer ¶¶ 1, 15, 18 [#79]. In December
2015, the unit owners of the Condominium took control of the
operations of the Condominium Trust. Defs.' SOF ¶ 3
November 3, 2017, the Trustees of the Condominium Trust, on
behalf of the Trust, brought this action in
Massachusetts' Superior Court. See Notice of
Removal ¶ 1 [#1]. The Trust alleges that it engaged
engineering and architectural consultants to investigate the
design, construction, and conditions of the buildings, common
areas, and limited common areas. See Pl.'s
Compl. ¶ 20 [#1-1]. According to Plaintiff, these
investigations have revealed a significant number of
deficiencies and building code violations in the design
and/or construction of the buildings, common areas, and
limited common areas of the Condominium. Id. at
¶¶ 21-26. The complaint alleged breach of the
Condominium documents (Count I), breach of fiduciary duty
(Count II), intentional misrepresentation (Count III),
negligent misrepresentation (Count IV), negligence (Count V),
breach of express and implied warranty (Count IV), and
violation of Mass. Gen. Laws ch. 93A (Count VIII).
See Pl.'s Compl. ¶¶ 28-74 [#1-1]. The
alleged facts underlying Plaintiff's claims relate to
negligent construction of the Condominium common and limited
common areas, misrepresentations made by Lennar in the course
of marketing the units to buyers, and mismanagement of the
Condominium Trust while Lennar was in control of the
Trust's operations. See id. The suit seeks
recovery for damages relating to the Condominium's common
and limited common areas. See, e.g., id. at
¶¶ 53-57 (describing negligence count as follows:
“defendants owed a duty to the Trust to deliver
properly designed and constructed buildings free of common
area and limited common area defects” and “Lennar
defendants breached their duty by designing and constructing
buildings replete with common area defects . . . ”).
The suit does not claim damages arising out of the negligent
design or construction of the unit interiors, but does claim
consequential damage to the unit interiors. See id.
at ¶¶ 25-26.
Standard of Review
motion for summary judgment, the court must construe
“the record in the light most favorable to the
non-movant and resolv[e] all reasonable inferences in that
party's favor.” Prescott v. Higgins, 538
F.3d 32, 39 (1st Cir. 2008); see also Fed.R.Civ.P.
56. (“Summary judgment is appropriate when the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law”); Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 7-8 (1st Cir. 1990) (internal
quotation marks and citation omitted). “To defeat a
motion for summary judgment, the evidence offered by the
adverse party cannot be merely colorable or speculative . . .
[it] must be significantly probative of specific
facts.” Thompson v. Coca-Cola Co., 522 F.3d
168, 175 (1st Cir. 2008) (internal quotation omitted). The
“mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment.” Rossy v. Roche
Prods., Inc., 880 F.2d 621, 623-24 (1st Cir. 1989).
Ultimately, whether a defendant's activities fall within
the statute of repose is a question of law. Snow v.
Harnischfeger Corp., 12 F.3d 1154, 1158 (1st Cir. 1993).
Massachusetts statute of repose, as stated in ch. 260, ...