United States Court of Appeals
For the First Circuit
No. 03-1460
STANLEY J. KOZIKOWSKI and EUNICE K. KOZIKOWSKI,
Plaintiffs, Appellants,
v.
TOLL BROS., INC., a/k/a TOLL BROTHERS, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Hon. William G. Young, Chief U.S. District Judge)
Before
Lynch, Circuit Judge,
Lipez, Circuit Judge,
and Stahl, Senior Circuit Judge.
Robert K. Harrington was on brief for appellants.
Lisa M. Asiaf, with whom Paul V. Kelly and Kelly, Libby &
Hoopes, P.C., were on brief for appellee.
December 31, 2003
STAHL, Senior Circuit Judge. Plaintiffs-appellants
Stanley and Eunice Kozikowski appeal from the district court's
order granting defendant-appellee Toll Brothers, Inc.'s ("Toll
Bros.") motion to dismiss, converted by the court into a motion
for summary judgment. The Kozikowskis challenge (1) the district
court's finding that the statute of limitations began to run on
their claims in 1993; (2) the court's finding that the Kozikowskis
failed to establish equitable estoppel; and (3) the court's
decision not to permit mandatory discovery to the Kozikowskis prior
to considering Toll Bros.'s motion to dismiss, which the court had
converted to a motion for summary judgment. We affirm the district
court, but on different grounds as to the Kozikowskis' deceit
claims.
I. BACKGROUND
On June 21, 1989, the Kozikowskis entered into a Purchase
and Sale Agreement with Franklin Chase Limited Partnership.1 The
contract called for the purchase of a luxury home to be constructed
in Franklin, Massachusetts for $285,900.00. The sale agreement
provided the buyer with a so-called "insured" limited ten-year
warranty against structural defects. On July 18, 1989, Toll Bros.
1
Franklin Chase was a Massachusetts limited partnership and
subsidiary of Toll Bros. that was cancelled on November 28, 1997,
after its initial general partner, Dover General, Inc., merged out
of existence into Franklin Farms G.P., Inc. Toll Holdings, Inc. is
sole stockholder of Franklin Farms G.P., Inc. and Toll Bros. is
sole stockholder of Toll Holdings, Inc.
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applied for a building permit from the Town of Franklin. Following
issuance of the permit, Toll Bros. commenced construction of the
home. On December 14, 1989, after five months of construction,
the Town issued a Certificate of Occupancy confirming that the home
was fit for occupancy. Five days later, the closing took place and
Franklin Chase transferred title to the Kozikowskis. The
Kozikowskis and Franklin Chase also signed a separate agreement in
response to the Kozikowskis' complaints about certain construction
deficiencies and deviations from the agreed-upon model of the home.
In this separate agreement, Franklin Chase, as the "Seller," agreed
to construct and install, at no further cost, various extra items
in the home. In exchange, the Kozikowskis agreed that "any and all
construction deficiencies, including but not limited to those
deficiencies which have been brought to the Seller's attention, are
forgiven and that any corrective action to be taken will be the
Buyer's responsibility," and released "the Seller from any and all
obligations to cause further corrective action to be taken
therein." The release explicitly stated, however, that Franklin
Chase's obligations under the ten-year limited warranty would
remain in effect. The final purchase price was $335,685.00.
Over the next several years, the Kozikowskis' complaints
about the home continued. On September 17, 1992, the Kozikowskis
and Franklin Chase entered into yet another agreement under which
Franklin Chase paid the Kozikowskis $4,479.74 with the
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understanding that the Kozikowskis would use the money to repair
chimney and fireplace problems. In turn, the Kozikowskis released
both Franklin Chase and Toll Bros. from all claims relating to the
home's fireplace and chimneys.
In November 1992, the Kozikowskis filed a complaint with
the Town of Franklin alleging a number of problems in the home's
construction. In February 1993, Allan Fraser, then the Town's
Building Commissioner, inspected the property and found thirteen
building code violations, including problems with the home's
foundation, air circulation system, and certain parts of the home's
above-ground construction. Fraser ordered Toll Bros. to submit a
written proposal for specific corrective action to address the
problems as well as a specific time schedule for accomplishing the
work. Fraser communicated with both the Kozikowskis and Toll Bros.
with regard to this set of building code violations. Through its
engineering consultant, Toll Bros. submitted proposals to correct
the violations. Fraser approved the proposals but wrote to the
Kozikowskis that it was beyond his authority to determine whether
Toll Bros. would actually follow through with the remedial work and
that "it is really between you folks and Toll Bros. to work out
mutually acceptable times and access for completion of these
items."
Though Toll Bros. did resolve some of the Kozikowskis'
complaints unrelated to the building code violations, it failed to
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take care of the specific code violations that Fraser had
identified. In 1994, the Kozikowskis threatened to file a formal
complaint and contact the media in response to Toll Bros.'s failure
to resolve their problems. Nothing immediately came of those
threats. Later that year, Toll Bros. donated two thousand feet of
paving to the Town, calling it an attempt "to help the Town with
its increasing responsibilities due to residential development."
In a report to the Town Council, however, the Town Administrator
stated that Toll Bros. made the donation to resolve "some problems
with the Building Inspection Department."2 There was no public
indication that the "donation" had anything to do with the
Kozikowkis' complaints.
The situation with the Kozikowskis' home remained largely
unresolved despite repeated demands by the Kozikowskis. In August
1997, they offered to release Toll Bros. from all claims in
exchange for an "all-season room" off the back of the house. On
August 21, 1997, in an apparent response to a written complaint
that the Kozikowskis had filed, Robert Toll, Chairman and CEO of
Toll Bros., wrote to the Kozikowskis that he had passed their
letter on to senior management and "assured [them] that [they
would] be treated fairly." On September 26, 1997, however, William
2
The district court itself considered this "donation," or what
the Kozikowskis alleged to be a bribe, "grave and troubling."
Kozikowski v. Toll Bros., Inc., 246 F. Supp.2d 93, 101 (D. Mass.
2003).
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Gilligan, Toll Bros.'s vice-president, responded to the
Kozikowskis' release offer and stated that Toll Bros. would
neither build the all-season room nor "undertak[e] any additional
corrective measures" because of the December 19, 1989 release
agreement.
In January 1998, after members of the Kozikowski family
experienced various illnesses, the Bay State Gas Company inspected
the home, found high carbon dioxide levels, and advised the family
not to use the fireplaces or any other wood-burning unit. The
Kozikowskis contacted Gilligan, who despite his previous letter,
suggested that the Kozikowskis schedule an appointment to inspect
the problem and that if the problem was Toll Bros.'s
responsibility, "we will correct it."
In July 1998, a second inspection of the home by the Town
Building Commissioner, now Matthias Mulvey, revealed eighteen
building code violations, many of them identical to the violations
found in 1993. The Commissioner sent a letter to Toll Bros.
advising them of the violations. Subsequently, the Norfolk County
District Attorney brought a criminal complaint against Toll Bros.,
which was ultimately dismissed. On April 23, 2001, the Kozikowskis
demanded relief from Toll Bros. under Massachusetts consumer
protection laws. Settlement talks failed and the Kozikowskis
commenced suit against Toll Bros. in superior court for (1) common
law deceit, (2) deceit as a violation of Mass. Gen. L. ch. 93A, (3)
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breach of express warranty, and (4) breach of express warranty in
violation of Mass. Gen. L. ch. 93A.
Following removal of the case to federal court, Toll
Bros. moved to dismiss the complaint as time-barred. On September
12, 2002, the district court held a hearing on Toll Bros.'s motion
to dismiss and converted the motion to dismiss to a motion for
summary judgment. Both parties agreed that such a conversion was
appropriate, but the Kozikowskis requested the opportunity to
conduct additional discovery to develop an equitable estoppel
argument. The district court gave the Kozikowskis the next sixty
days to conduct three depositions concerning their equitable
estoppel claim and further instructed that, on the basis of these
three depositions, they could supplement the record but solely on
the issue of equitable estoppel. After receiving several
extensions, the Kozikowskis provided the district court with a
supplemental brief as well as various exhibits and one deposition,
that of Matthias Mulvey. The court thereafter granted summary
judgment in favor of Toll Bros. after ruling that all of the
Kozikowskis' claims began accruing no later than 1993 and were
therefore barred by applicable statutes of limitations. See 246 F.
Supp.2d at 99. The court also rejected the Kozikowskis' equitable
estoppel argument. See id. at 102.
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II. DISCUSSION
We review the district court's grant of summary judgment
de novo, viewing the evidence in the light most favorable to the
nonmovant. Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997).
A. Statute of Repose
Although the district court's decision did not address
the applicability of the statute of repose, Toll Bros. raised the
issue both in its motion to dismiss and here on appeal. Toll Bros.
argues for affirmance pursuant to the six-year statute of repose
for claims involving construction and improvement to real property.
Mass. Gen. L. ch. 260, § 2B; see also Nett v. Bellucci, 269 F.3d 1,
5 (1st Cir. 2001) (federal courts sitting in diversity jurisdiction
apply Massachusetts statute of repose, which is deemed substantive
rather than procedural). We agree that § 2B applies to the
Kozikowskis' two deceit claims and hence affirm their dismissal on
that basis. § 2B provides in pertinent part:
Actions of tort for damages arising out of any deficiency
or neglect in the design, planning, construction or
general administration of an improvement to real property
. . . in no event shall . . . be commenced more than six
years after the earlier of the dates of: (1) the opening
of the improvement to use; or (2) substantial completion
of the improvement and the taking of possession for
occupancy by the owner.
Mass. Gen. L. ch. 260, § 2B. The six-year deadline set forth in
§ 2B operates without regard to when a plaintiff discovers any
injury allegedly caused by tortious activity by the architect or
contractor at issue. See Klein v. Catalano, 386 Mass. 701, 702
-8-
(1982). It serves the "well recognized public purpose" of
protecting those engaged in the construction industry from
defending claims brought against them long after evidence has
dissipated and strikes "a reasonable balance between the public's
right to a remedy and the need to place an outer limit on the tort
liability of those involved in construction." Id. at 709-10.
The Kozikowskis' common law and statutory deceit claims
sound in tort and arise out of the design and construction of the
home. In both claims, the Kozikowskis allege that Toll Bros.
misrepresented that their home was constructed in compliance with
state and municipal building codes and was safe and fit for
occupancy. The 93A deceit claim specifically alleges that Toll
Bros. knowingly concealed and failed to inform the Kozikowskis of
the building code defects.
The Kozikowskis argue that their deceit claim under ch.
93A is not barred by the statute of repose, because, as in Sullivan
v. Iantosca, 409 Mass. 796, 800 (1991), the alleged "violation
occurred in the sale of the house." The Massachusetts Supreme
Judicial Court in Sullivan reasoned that § 2B "grants protection to
designers, planners, builders, and the like . . . [but not to]
people who sell real estate." Id. at 799. The Kozikowskis allege
that Toll Bros. acted as both builder and seller of the property,
and claim that, as the seller of the property, Toll Bros. violated
ch. 93A by concealing known defects in the home. Accordingly, the
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Kozikowskis contend, their chapter 93A deceit claim should not be
barred by the statute of repose.
In this transaction, Toll Bros. was the builder of the
home. Franklin Chase is denoted as the "Seller" in the sale
agreement, the December 19, 1989 release, and the resulting deed of
the property. Toll Bros. itself is nowhere mentioned in any of
these crucial instruments. It is, however, specifically listed as
the applicant in the building permit and certificate of occupancy
as one would expect. Importantly, the Kozikowskis made no effort
below to pierce the corporate veil between Franklin Chase and Toll
Bros., or otherwise prove that Toll Bros. was the seller of the
home.
Accordingly, we assess whether the statute of repose
began to run for the deceit claims against Toll Bros. solely in its
capacity as the builder of the house and not as seller. Toll Bros.
argues that "the opening of the improvement to use" took place on
December 14, 1989, when the Town issued the Certificate of
Occupancy after inspecting the home. Five days later, "substantial
completion of the improvement and the taking of possession for
occupancy by the owner" occurred at the sale closing and title
transfer, immediately after which the Kozikowkis moved into the
home. The Massachusetts Supreme Judicial Court has ruled that the
statute of repose begins to run when a Certificate of Occupancy is
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issued and the owners move into the home. See Aldrich v. ADD,
Inc., 437 Mass. 213, 221-22 (2002).
We agree. According to § 2B, Toll Bros. was therefore
subject to tort liability in connection with its construction of
the home only until, at the latest, December 19, 1995. The deceit
claims, filed in November 2001, since they arise solely out of Toll
Bros.'s actions as builder, and not seller, are hence time-barred
by the statute of repose.
B. Statutes of Limitation
The district court held that all of the Kozikowskis'
claims, both for breach of warranty and deceit, were time-barred.
Because we dispose of the Kozikowskis' two deceit claims as barred
by the statute of repose, see supra, we examine the Massachusetts
statutes of limitation applicable only to the breach of express
warranty claims.3 See, e.g., Pitts v. Aerolite SPE Corp., 673 F.
Supp. 1123, 1127 (D. Mass 1987) (federal courts sitting in
diversity jurisdiction apply state statutes of limitation).
Under chapter 93A, "unfair or deceptive acts or practices
in the conduct of any trade or commerce are hereby declared
3
As for the ten-year warranty referenced in the sale
agreement, the warranty agreement itself is not in the record. We
do not know, for example, whether the warranty contained a "claims
made" clause, "discovery" provision, or some other independent
obligation between the parties that would have affected our
application of the statutes of limitation. We assume arguendo that
the Kozikowskis do have express warranty claims not subject to the
statute of repose, and address the limitations period for express
warranty claims.
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unlawful." Mass. Gen. L. ch. 93A, § 2(a). The Kozikowskis argue
that Toll Bros.'s alleged breach of warranty constitutes an unfair
or deceptive act covered by chapter 93A. The statute of
limitations for 93A claims is four years from the accrual date.
Mass. Gen. L. ch. 260, §5A. The statute of limitations for common
law breach of warranty claims is six years. Mass. Gen. L. ch. 260,
§ 2. Breach of warranty actions start accruing when the plaintiff
knew or reasonably should have known of the breach. See Anthony's
Pier Four, Inc. v. Crandell Dry Dock Eng'rs, Inc., 396 Mass. 818,
826 (1986). In both breach claims, the Kozikowskis allege that
Toll Bros. breached its express warranty that the home would comply
with the state building code. The district court held that both
claims, at the latest, started accruing in 1993, when the
Kozikowskis were notified by the Town of their home's thirteen
building code violations, and were hence time-barred.
The Kozikowskis contend that the applicable statutes of
limitation did not begin to run until July 3, 1998, when Mulvey
inspected the home. They claim that until then, they did not know
or have reason to know that the home had such major structural
defects as to mean it could not be occupied. The building code
violations cited in the 1993 inspection by Fraser, they contend,
were just "minor" and did not point to major defects in the home's
construction.
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As an initial matter, the Kozikowskis argue this issue
for the first time here on appeal; hence, we deem it waived. See
Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 183 (1st
Cir. 1997) (noting appellant waived argument for the first time on
appeal by failing to present it below); Villafane-Neriz v. Fed.
Deposit Ins. Corp., 75 F.3d 727, 734 (1st Cir. 1996) (except in
"'horrendous cases where a gross miscarriage of justice would
occur,'" "this court will not consider an argument presented for
the first time on appeal") (internal citations omitted). Toll
Bros., in its August 20, 2002 Reply Memorandum in Support of
Defendant's Motion to Dismiss, warned, "Defendant Toll . . .
submits this reply memorandum to address plaintiffs' misplaced
reliance on . . . the doctrine of equitable estoppel. Indeed,
plaintiffs devote nearly the entirety of their . . . Opposition
. . . to this doctrine, and, in so doing, tacitly concede that
absent its application, all of their claims are barred by the
applicable statutes of limitations." The Kozikowskis' Supplemental
Brief in Opposition to Defendant's Motion to Dismiss continued to
fail to challenge Toll Bros.'s position that the claims began
accruing in 1993 or earlier. In turn, the district court stated,
"The Kozikowskis have not disputed that the statutes of limitations
began to run on their claims in 1993. Rather, they have responded
to Toll Bros.'s invocation of the statutes of limitations on their
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four claims by invoking the doctrine of equitable estoppel." 246
F. Supp.2d at 99.
Even if the Kozikowskis had not waived their challenge of
the accrual date and were we to assume the issue was forfeit and
subject to plain error review, there was no plain error. The
record shows that the Kozikowskis were put on notice of
construction and structural defects in their home as far back as
the year of their purchase. In 1989, as evidenced by the December
19 release, the Kozikowskis complained about alleged construction
deficiencies even before moving into the house. In their 1992
letter to the Town Administrator, they complained about "outright
mistreatments" by Toll Bros. and outlined a long list of alleged
"building deficiencies" which included numerous "unresolved,"
"partially resolved," and "inadequately resolved" construction
problems. In the same letter, the Kozikowskis went so far as to
suggest that criminal charges for fraud and misrepresentation
should be brought against Toll Bros. In Fraser's 1993 letter to
Toll Bros. notifying the company of the building code violations,
it was made clear that the Kozikowskis were aware of the violations
explicitly referenced in the letter; moreover, Fraser sent a copy
of this letter to the Kozikowskis themselves. Their claim that
Fraser's 1993 report contained just "minor" problems with the home
is disingenuous and incorrect. Mulvey's 1998 report on which they
base their argument sets forth many of the same violations--defects
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in fireplace and insulation systems among them--that Fraser listed
after his 1993 inspection. The record is replete with explicit and
implicit acknowledgments by the Kozikowskis that they knew or
learned about alleged construction deficiencies and building code
violations between 1989 and 1993. Significantly, many of the
serious defects reported in 1998 were in the 1993 report.
C. Equitable Estoppel
Though the Kozikowskis failed to dispute below that the
statutes of limitations began to run on their breach of warranty
claims in 1993 and not in 1998, they did invoke the doctrine of
equitable estoppel. Under equitable estoppel, a plaintiff can
"escape the consequences of his lack of diligence in bringing his
action . . . by way of proof that the defendants lulled the
plaintiff into the delay." Coady v. Marvin Lumber and Cedar
Company, 167 F. Supp.2d 166, 171 (D. Mass. 2001).
For the doctrine to apply, the Kozikowskis must satisfy
a three-part test, showing: (1) that Toll Bros. made
representations that it knew or should have known would induce the
Kozikowskis to postpone bringing a suit; (2) that they did in fact
delay bringing a suit in reliance on those representations; and (3)
that reliance on those representations was reasonable. O'Blenes v.
Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986).
The Kozikowskis argue that (1) a March 24, 1993 letter
from Fraser to Toll Bros.; (2) a July 27, 1993 letter from Fraser
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to the Kozikowskis; (3) the fact that Toll Bros. continued to
schedule repair work on the home through 1996 and 1997; and (4) the
August 21, 1997 letter from Toll Bros. stating that the Kozikowskis
would be treated fairly all constituted "representations" that Toll
Bros. knew or should have known would induce the Kozikowskis into
postponing suit.
The district court held that "even construing the facts
in the light most favorable to the Kozikowskis, it is far from
clear that the representations that they have identified on the
part of Toll Brothers satisfy the first prong" of an equitable
estoppel argument. 246 F. Supp.2d at 100. The March 24, 1993, and
July 27, 1993 letters by Fraser did indicate that Toll Bros. was
making plans to resolve the home's problems. Neither Fraser nor
Toll Bros., however, made any clear assurances that Toll Bros.
intended to carry out these plans. In fact, Fraser told the
Kozikowskis that it was up to the Kozikowskis themselves to make
sure that Toll Bros. followed through on their plans.
Moreover, the three letters as well as any alleged
suggestions by Toll Bros. that it would schedule repairs were very
general in nature and did not specifically assure the Kozikowskis
that the repairs in fact would be made. Promises or assurances in
such communications must be specific in order to constitute
"representations." See Treadwell v. John Hancock Mut. Life Ins.
Co., 666 F. Supp. 278, 286-87 (D. Mass. 1987); Buker v. Nat'l Mgmt.
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Corp., 16 Mass. App. Ct. 36, 43-44 (1983) (unreasonable as a matter
of law to rely on vague assurances). Here, the only specific
assurances that Toll Bros. made were that they were considering the
building code violations listed in Fraser's report and that Toll
Bros. representatives would be available to the Kozikowskis to
discuss their problems. In addition, alleged repair appointments
by Toll Bros. do not, standing alone, constitute "representations"
for purposes of equitable estoppel. See New England Power Co. v.
Riley Stoker Corp., 20 Mass. App. Ct. 25, 34 (1985) (stating "[w]e
do not view the fact of honest, genuine repair efforts, standing
alone, as sufficient basis for application of the doctrine of
estoppel"), rev. denied, 395 Mass. 1103 (1985).
On the second prong, the district court found that "given
the long and rocky course of the relationship" between the two
parties, the notion that the Kozikowskis "truly believed" Toll
Bros. and "were thus lulled into inaction . . . strains credulity."
246 F. Supp.2d at 101. The record shows that the Kozikowskis
regarded Toll Bros. as unreliable, beginning with their first
letter in 1992 to the Town Administrator. The letter notified the
Town that the Kozikowskis "would like to file a complaint with the
town against Toll Brothers in the hope that, ideally, they are no
longer allowed to build in Franklin" and that they "think that
charges of criminal misconduct--fraud and misrepresentation--should
be brought against this builder."
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After Fraser inspected the home and issued his report,
the Kozikowskis' distrust of Toll Bros. continued in 1994 when they
threatened to file a formal complaint and contact the media. In
the Kozikowskis' own words, they were "completely frustrated and
upset because neither [Town] Commissioner Fraser nor Toll Brothers
was responding to their fully justified complaints . . . ." Given
this string of complaints and threats by the Kozikowskis, it is
difficult to believe that Toll Bros.s' assurances, to the extent
that they were assurances, truly lulled the Kozikowskis into
inaction.
On the third prong, the district court concluded that
construing the facts in the light most favorable to the
Kozikowskis, any delay in reliance on the alleged representations
could not have been reasonable given Toll Bros.'s behavior and the
Kozikowskis' own threats. See 246 F. Supp.2d at 102. Though it is
arguable that the Kozikowskis succeed on the first two prongs, the
Kozikowskis fail to establish how their alleged reliance on Toll
Bros.'s representations was reasonable.
The Kozikowskis' reliance on the August 21, 1997 letter
from Robert Toll was unreasonable because it was received one month
before the September 26, 1997 letter from Gilligan, which stated
that "Toll Brothers will not be building an all-season room as you
have requested, nor will we be undertaking any additional
corrective measures on your home." Gilligan's letter did not
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provide any assurances that Toll Bros. would remedy their
grievances, but instead explicitly set out that Toll Bros.'s
previous attempts to repair minor problems with the home were
performed despite the warranty agreement and release that insulated
the company from any legal obligation to do so.
In light of the Kozikowskis' continuous attempts to use
outside sources to pressure Toll Bros. into action and Toll Bros.'s
continuous failure to satisfy the Kozikowskis' demands, the
Kozikowskis' alleged reliance on Fraser's letters and Toll Bros.'s
correspondence is unreasonable. As the district court noted:
The fact that [the defendant] "did not make an honest or
good faith effort at anytime to remedy the defects," as
[the plaintiff] alleges, does not establish that [the
defendant] induced the delay. Instead, because [the
defendant] was unwilling to take responsibility for the
defects, [the plaintiff] was (or should have been) put on
notice that a claim (or a lawsuit) was the only way to
resolve the dispute.
246 F. Supp.2d at 102 (quoting Coady, 167 F. Supp.2d at 171).
Here, as far back as 1994, when Toll Bros. failed to fully respond
to the Kozikowskis' serious threat to sue, the Kozikowskis had more
than enough signals that the only way they were going to have their
grievances redressed was through legal action.4 We therefore
4
As for the Kozikowskis' mention of the alleged bribes made to
Town officials, we cannot see how statements made by Toll Bros. to
Town officials constitute representations that Toll Bros. knew or
should have known would induce the Kozikowskis into forgoing suit.
Though "[t]he circumstances surrounding the so-called 'bribe' might
be suggestive of foul play, . . . foul play is not in itself
sufficient to warrant raising an estoppel." Sousa v. BP Oil, Inc.,
No. 83-4046-DPW, 1995 WL 842003, at *5 (D. Mass. Sept. 12, 1995).
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affirm the district court's finding that the Kozikowskis failed to
carry their burden of satisfying the three elements of equitable
estoppel.
D. "Mandatory Discovery" Under Fed. R. Civ. P. 26(a)
We review the district court's denial of discovery for an
abuse of discretion. Ameristar Jet Charter, Inc. v. Signal
Composites, Inc., 244 F.3d 189, 191-92 (1st Cir. 2001). The
Kozikowskis contend that the district court abused its discretion
by denying their request for "mandatory" discovery under Fed. R.
Civ. P. 26(a). Here, Rule 26(a) never came into play because at
the outset, the district court conducted a hearing on Toll Bros.'s
motion to dismiss which, without objection from either party, it
converted to a motion for summary judgment. Upon this conversion,
Fed. R. Civ. Pro. 56(f) instead was invoked. Rule 56(f) provides
that where affidavits of the party opposing summary judgment are
insufficient to present facts that are essential to the party's
opposition, the court may refuse the summary judgment motion or may
order a continuance to permit either party to obtain additional
affidavits, conduct depositions, or conduct any other discovery.
See Fed. R. Civ. Pro. 56(f).
The Kozikowskis requested discovery at the September 12,
2002 hearing on Toll Bros.'s motion to dismiss. The district court
Moreover, nowhere in the record can we find that the Kozikowskis
even knew about the alleged bribe at the relevant time period, much
less relied on it.
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granted them sixty days to conduct three depositions, but they
managed to conduct only one, of former Town Building Commissioner
Mulvey. The Kozikowskis chose to rest on the Mulvey deposition and
submitted a supplemental brief incorporating his testimony in
opposition to Toll Bros.'s motion to dismiss-motion for summary
judgment.
According to Rule 56(f), a court may grant a continuance
to permit additional discovery if the party opposing summary
judgment asks the court for such relief, demonstrates that it was
diligent in pursuing discovery before summary judgment surfaced,
and sets forth a "plausible basis for believing that the specified
facts, . . . if adduced, will influence the outcome of the pending
summary judgment motion." C.B. Trucking, Inc. v. Waste Mgmt., Inc.
137 F.3d 41, 44 (1st Cir. 1998); Fed. R. Civ. P. 56(f). Again,
their argument for mandatory discovery under Rule 26(a) is
misplaced, as the Kozikowskis consented to the district court's
conversion of Toll Bros.'s motion to dismiss to a motion for
summary judgment, thereby bringing any further discovery requests
within the ambit of Rule 56. Here, the Kozikowskis have not
explained why they could not conduct the three depositions during
the time for which they asked, nor have they demonstrated whether
certain facts, if brought up on additional discovery, would
influence the outcome of the motion. Hence, we find that the
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district court did not abuse its discretion in denying the
Kozikowskis further discovery under either Rules 26(a) or 56(f).
Unfortunately, for the Kozikowskis they simply waited too
long before seeking legal redress for their complaints.
Accordingly, we affirm.
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