Charles E. Fogarty v. Ralph Palumbo James Ottenbacher v. Ralph Palumbo

Citations

• 163 A.3d 526

Syllabus

This case arose from the August 15, 2005, sale of an approximately 360-acre tract of undeveloped land located on Dye Hill Road in Hopkinton (the property). The plaintiffs, Charles E. Fogarty and James Ottenbacher, averred that the sale of the property to an entity of which the defendants, Ralph Palumbo and Jonathan Savage, were principals, without their consent, was fraudulent they each consequently filed an eight-count complaint in Superior Court. The plaintiffs also named Pilgrim Title Insurance Company (Pilgrim), which was the title insurance and escrow agent in connection with the sale of the property, as a defendant in this case. Following discovery, all three named defendants, Palumbo, Savage, and Pilgrim, filed a total of five motions for summary judgment, all of which were granted by a justice of the Superior Court. The Supreme Court affirmed summary judgment as to Pilgrim on the plaintiffs' negligence counts against it, as it held such claims were barred by the applicable statute of limitations and that the plaintiffs failed to meet the requirements of the discovery-rule exception. The Supreme Court vacated the hearing justice's decision to grant summary judgment on all counts against Palumbo and Savage based on the plaintiffs' purported failure to present evidence of lost profits, as it deemed that the evidence presented by the plaintiffs was sufficient to raise a genuine issue of material fact. However, the Supreme Court affirmed summary judgment on counts 6 (fraud), as it deemed such counts to be derivative. Moreover, the Supreme Court affirmed summary judgment on counts 4 (tortious interference with contractual relations), counts 5 (tortious interference with prospective contractual relationship) and counts 8 (civil conspiracy) as to both Palumbo and Savage, and on counts 3 (breach of contract) against Savage. Accordingly, the Supreme Court affirmed the judgment of the Superior Court in part, vacated the judgment in part, and remanded the record to the