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D'Allessandro v. Lennar Hingham Holdings, LLC

United States District Court, D. Massachusetts

October 28, 2019

LIZ D'ALLESSANDRO, JANE FREEMAN, TOD MCGRATH, JAY DRISCOLL, and MIKE NAPPI, As Trustees on behalf of the Hewitts Landing Condominium Trust, Plaintiff,


          Indira Talwani United States District Judge

         Before 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.

         I. Background

         This 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].[1]

         The 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 these buildings.[2]

         While 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.

         On June 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[3] 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.

         The 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 [#214].

         On 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.

         II. Standard of Review

         On a 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).

         III. Discussion

         A. Overview

         The Massachusetts statute of repose, as stated in ch. 260, ...

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