Massachusetts Housing Opportunities Corporation v. Whitman & Bingham Associates, P.C., et al. (Lawyers Weekly No. 11-031-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     12‑P‑53                                         Appeals Court   MASSACHUSETTS HOUSING OPPORTUNITIES CORPORATION  vs.  WHITMAN & BINGHAM ASSOCIATES, P.C., & another.[1]     No. 12‑P‑53. Essex.     October 3, 2012.  ‑  February 21, 2013. Present:  Graham, Vuono, & Hanlon, JJ.     Sewage Disposal.  Limitations, Statute of.  Negligence, Installation of septic system, Misrepresentation.  Fraud.  Contract, Performance and breach.  Consumer Protection Act, Unfair or deceptive act.       Civil action commenced in the Superior Court Department on May 23, 2008.   The case was heard by Maynard M. Kirpalani, J., on motions for summary judgment.     Daniel J. Murphy for the plaintiff. Eric A. Howard (Patricia B. Gary with him) for Whitman & Bingham Associates, P.C.     GRAHAM, J.  After a wastewater treatment plant for one of its development projects vastly exceeded projected costs, the plaintiff, Massachusetts Housing Opportunities Corporation (MHOC), filed a complaint alleging tort claims (counts I – III), breach of contract (count IV), and violation of G. L. c. 93A (count V) against the defendants, engineering firms Whitman & Bingham Associates, P.C. (Whitman), and Aquapoint, Inc. (Aquapoint).[2]  A judge of the Superior Court granted the defendants’ motion for summary judgment, and MHOC appeals.  It argues that the judge erred in concluding that its tort and contract claims are barred by the applicable statute of limitations, and that its c. 93A claim is without support in the record.  We affirm.   Background.  The undisputed facts, viewed in the light most favorable to the nonmoving party, MHOC, are as follows.  In 2003, MHOC, a property development corporation, was in the process of developing a condominium project in Sterling (development).  On October 2, 2003, it entered into an agreement with Whitman to design “a subsurface sewage disposal system” (septic system) for the development.  Whitman, in turn, hired Aquapoint to provide information about sewage treatment equipment and permitting advice.  Whitman began work on the design, and, in November, 2004, told MHOC that the septic system could be permitted relatively inexpensively under the Department of Environmental Protection’s (DEP) Title 5 alternative system for piloting program (piloting program).[3]  Thereafter, on December 15, 2004, Whitman submitted an application under the piloting program on behalf of MHOC.  MHOC signed the application and paid the $ 430 filing fee by check.  Also in December, 2004, MHOC received a $ 300,000 bid from a third party, M.P. Crowley, to construct the septic system […]

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