Opinion

Kirkland Construction Co. v. James

  • 39 Mass. App. Ct. 559
  • 658 N.E.2d 699
  • 1995 Mass. App. LEXIS 860
Court
Massachusetts Appeals Court
Filed
Dec 27, 1995
Status
Published
Author
Brown
On the bench
Brown, Flannery
Cited by
47 cases
Authority
More cited than 10.9%

reversing allowance of rule 12[b][6] motion to dismiss where nonclient plaintiff alleged that defendant-lawyers induced it into contract, intended that plaintiff would rely on their allegedly false written representations, and plaintiff reasonably so relied

How later courts described this case

  • reversing allowance of rule 12[b][6] motion to dismiss where nonclient plaintiff alleged that defendant-lawyers induced it into contract, intended that plaintiff would rely on their allegedly false written representations, and plaintiff reasonably so relied
  • reversing dismissal of 93A claim against lawyers who conveyed alleged misrepresentation by client and thereby allegedly induced plaintiff to contract with lawyers’ client
  • “The lenient standard by which a complaint is measured on a motion to dismiss for failure to state a claim is familiar. The allegations are taken as true, doubts are resolved in favor of the complainant, and the motion must be denied unless it is certain that no set of provable facts could entitle the plaintiff to relief’
  • buyer may state claim for negligent misrepresentation against law firm that wrote letter with intent to induce buyer to enter into contract with client

Written by the judges who cited it.

The opinion

Brown, J.

(concurring). I fully concur in the reasoning and result reached by the majority. See Matthew 6:24. I merely wish to point out the wasted effort expended on the part of both sides, particularly the moving party, in attempting to dispose of this case under Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974). All too often that course of action proves to be a huge exercise in futility, as was amply demonstrated here.

The lower court, as well as this court, would have been aided greatly if the parties had elevated this matter to another rung on the procedural ladder by filing affidavits and other appropriate materials to bring it within the more efficacious purview of a summary judgment proceeding. See Mass.R.Civ.P. 56, 365 Mass. 824 (1974).

To paraphrase my brother Justice Kass, whenever one has an opportunity “to drive a stake through the heart of a vampire” and kill it, one should surely do so. Unfortunately, rule 12(b) (6) is not even a blunt instrument and should seldom be the weapon of first choice. Rule 56 is the deadly one. See and compare Balsavich v. Local Union 170, Intl. Bhd. of *565 Teamsters, 371 Mass. 283, 288 (1976). See also Romano v. Sacknoff, 4 Mass. App. Ct. 862 , 863 n.2 (1976).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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