Groton grandmother prevails despite devious developers

Issue September 2005 By Andrea R. Barter, Esq.

Having nearly lost hope, an elderly Groton woman's claims for legal malpractice were revived when she made a phone call to the MBA's Lawyer Referral Service.

Although another attorney had turned the woman away, when Ralph F. Sbrogna of Fletcher, Tilton & Whipple in Worcester received the referral from LRS, he recognized that the woman was a sympathetic plaintiff who had been taken advantage of by real estate developers.

Although Sbrogna is bound by a confidentiality agreement, he could reveal that in the late 1990s, the plaintiff was approached by developers representing another landowner in town. They were seeking the plaintiff's frontage property so they could create a secondary means of access to a planned subdivision.
The plaintiff was hesitant to sell. As an incentive, she was offered cash up front. In addition, once the subdivision was constructed, she would have frontage on a new subdivision road, which made her otherwise undevelopable property significantly more valuable.

According to Sbrogna, the series of agreements drawn up by the developers didn't insure the plaintiff would have frontage on the new road. In fact, the developers actively prevented her from having frontage by putting in a buffer strip, "otherwise known as a spite strip," said Sbrogna.

The buffer strip that the developers retained ownership of prevented the woman from having subdivision frontage, so her land was not developable. For the plaintiff, the real problem was that "the attorney representing her didn't understand what the attorneys for the developers were doing," said Sbrogna.

Her attorney "didn't require language in the purchase and sale agreement or the deed which would have mandated that she had frontage, therefore there was no way to compel the developer to provide the frontage promised because it wasn't part of the written deal. He assumed Ôaccess' and Ôfrontage' were the same thing. He failed to attend planning board hearings or review the filings at the planning board, both of which would have revealed the plan for the buffer strip."
In short, said Sbrogna, "He didn't do due diligence to discover that the developer was engaging in this scheme. She didn't get what she was promised."

Several years later, the woman was contacted by a secondary developer wanting to buy her lots. Only then did she find out that her attorney had failed to protect her interests -- she did not have the frontage property. Ultimately, she did end up selling her land to the subsequent developer for far less than market value; since the secondary developer owned the title to the buffer strip, he could develop lots and make a profit.

Sbrogna came to the woman's rescue. After mediation and settlement attempts failed, he made a motion for a speedy trial, which was granted.

"As we got closer to trial, and this woman's health was failing, the threat of actually trying the case caused [the attorney's insurer] to come up with enough money to get it settled," said Sbrogna. "This was an elderly woman who would have made a very good plaintiff. It was a case of credibility. I think that, given the parties, she made a very believable witness. Had we gone to trial, a jury would have been sympathetic to her," he added.

Ultimately, Sbrogna was able to negotiate the sale to the subsequent developer for $250,000 and recovered $250,000 from the plaintiff's attorney's malpractice insurer.

Sbrogna has received several cases from LRS and says that each experience with LRS has been positive.

"I think it's a great service," said Sbrogna. "This woman was basically ready to give up, thinking she didn't have a case. If it hadn't been for LRS, this woman wouldn't have recovered."

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