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Aldrich v. Add Inc.6/21/2002
s such, the plaintiffs were bound by the provisions of the owner-architect agreement, and their cause of action for the architect's negligence was deemed to have accrued on August 11, 1987, the date the certificate of substantial completion was issued. The judge noted that G. L. c. 260, § 2B, barred any claim filed more than three years after the cause of action accrued. In light of the fact that the plaintiffs did not file their complaint until July 29, 1993, the judge concluded that summary judgment was warranted because the statute of limitations had expired.
In response to the judge's decision, the plaintiffs filed a motion for leave to amend their complaint pursuant to Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), to add a claim for breach of express warranty against the architect. The motion was denied, and judgment entered for the architect.
2. Theory of successorship. The plaintiffs contend that the judge below erred in granting summary judgment to the architect because they were not a successor to Dolphin under the owner-architect agreement. Therefore, their cause of action was not time barred by the applicable limitation period and the related provision of the agreement. We agree.
Typically, "a succeeding corporation is liable on the contracts or obligations of its predecessor where it either assumes them under express agreement or where the facts and circumstances are such as to show an assumption." Araserv, Inc. v. Bay State Harness Horse Racing & Breeding Ass'n, Inc., 437 F. Supp. 1083, 1089 (D. Mass. 1977). See Pittsfield Gen. Hosp. v. Markus, 355 Mass. 519, 521 (1969), and cases cited. Fundamentally, the plaintiffs' claim here is not one rooted in contract theory because clearly they were not a party to the owner-architect agreement. Rather, the plaintiffs' cause of action is a tort claim for negligence. Cf. Cigal v. Leader Dev. Corp., 408 Mass. 212, 216-218 (1990) ("a contractually based injury is entirely distinct from the torts for which the unit owners' association may recover").
The filing of the master deed did not make the plaintiffs the equivalent of Dolphin's "successor," nor did they assume Dolphin's rights and obligations vis-à-vis the architect under the owner-architect agreement. The filing of a master deed divides interests formerly held by one entity in fee simple into separate and distinct real estate interests. See Bernstein v. Chief Bldg. Inspector & Bldg. Comm'r of Falmouth, 52 Mass. App. Ct. 422, 427 (2001) ("Our decisions have recognized condominium units and common areas to be adjacent parcels of land"). The master deed defined Dolphin, the plaintiffs, and the unit owners as separate entities. Dolphin retained title to the 117 individual units, which it subsequently sold to third parties. The plaintiffs' role was to manage and regulate the condominium. They were entitled to an undivided interest, along with all other unit owners, in the common areas, with respect to which they were empowered to conduct litigation pursuant to G. L. c. 183A, § 10 (b) (4). See 39 Joy St. Condominium Ass'n v. Board of Appeal of Boston, 426 Mass. 485, 487 (1998) (describing interests owned and rights exercised by unit owners and condominium association). Notwithstanding the plaintiffs' interests, Dolphin retained certain rights and easements to complete construction of the condominium and develop the surrounding land. The mere purchase of an asset does not make the purchaser the "successor" of the seller, bound by the seller's contractual obligations with other parties. Cf. Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 359 (1997) (liabilities of selling predecessor corporation not imposed on successor that purchased its assets unless s
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