Shahin v. I.E.S. Incorporated (Lawyers Weekly No. 11-069-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑1121 Appeals Court SHAHIN SHAHIN, trustee,[1] vs. I.E.S. INCORPORATED. No. 12‑P‑1121. May 31, 2013. Limitations, Statute of. Practice, Civil, Statute of limitations, Claim barred by short statute of limitations. This is an appeal from a grant of summary judgment in favor of the defendant, I.E.S. Incorporated (IES), on claims under a contract that were brought by the plaintiff, Shahin Shahin, as trustee of the Hersey Street Properties Realty Trust (collectively, trust). The trust retained IES to conduct environmental testing and other services in connection with the trust’s sale of a property in Salem. The contract was mailed by IES to the trust on March 21, 2006, and was signed and dated by the trust on April 27, 2006.[2] The contract included an attachment identified as “Attachment ‘B’ Statement of Terms and Conditions” (attachment B). Paragraph N of these terms and conditions states: “The [trust] agrees that the [trust] shall bring no claim against IES, Inc., and/or its owners, directors, officers, and employees, later than one (1) year after the date of this contract.” The trust contends that IES did not fully perform under the contract and failed to comply with relevant Massachusetts Department of Environmental Protection (DEP) regulations and that this only came to the trust’s attention when DEP issued a notice of noncompliance on July 24, 2009. The trust alleged unfair or deceptive practices under G. L. c. 93A, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, breach of contract, and negligence, and it sought a declaratory judgment that the contractual limitations period and a contractual cap on damages did not apply. The Superior Court judge concluded that the initial complaint, which was filed on December 14, 2010, was barred by the contractually-shortened limitations period. The trust appeals. This case, in which the trust maintains it could not have known about the actions for which it brought suit until after the expiration of the contractual limitations period, is controlled in material respects by the Supreme Judicial Court’s recent decision in Creative Playthings Franchising, Corp. v. Reiser, 463 Mass. 758 (2012), which was decided during the pendency of this appeal, and of which the Superior Court judge consequently did not have the benefit. Creative Playthings holds that, as a matter of Massachusetts law, a […]