A condominium developer sued the designer of its septic system because initial cost estimates were far too low.  When the system designer thought the DEP would accept a system under Title V, the developer got a quote of $300,000 to build the system as designed.

The DEP however, insisted that the project owner submit a Major Groundwater Discharge permit.  The designer had to transform its original septic plan into a full blown sewer treatment plant.  Three years went by and the cost of the system went from $300,000 to $800,000.  The owner sued the designer for that additional cost.

The developer in this case waited too long (more than three years) to sue for the designer’s negligence or carelessness.  The owner then tried to claim the designer had expressly promised the lower price.  Contract claims last longer than negligence claims.  The Massachusetts Appeals Court rejected the idea that the designer had offered an explicit promise on the cost of the system.

The case is Massachusetts Housing Opportunities Corporation v Whitman & Bingham Associates PC, found at 83 Mass App CT 325 (2013) .  If you want to sue on a contract for an explicit promise, write it down, leave no doubt.  If you miss the time to sue for negligence, you can’t transform a hope into a promise.