# Kirkland Construction Co. v. James

> Massachusetts Appeals Court · December 27, 1995 · 39 Mass. App. Ct. 559

URL: https://www.frixlaw.com/law-library/cases/6459502

## Case

- **Full name:** Kirkland Construction Company v. Kurt A. James & others
- **Court:** Massachusetts Appeals Court
- **Decided:** December 27, 1995
- **Citations:** 39 Mass. App. Ct. 559; 658 N.E.2d 699; 1995 Mass. App. LEXIS 860
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Brown, Flannery
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6459502

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6459502. Public record. Not legal advice.