LEAH BARROWS v. NEW ENGLAND SCHOOL OF ACUPUNCTURE & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1449

LEAH BARROWS

vs.

NEW ENGLAND SCHOOL OF ACUPUNCTURE & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Leah Barrows, appeals from a summary

judgment entered in favor of the defendants on the plaintiff's

ten-count first amended verified complaint. We affirm.

Background. "We summarize the undisputed facts in the

light most favorable to the plaintiff, the party opposing

summary judgment." R.L. Currie Corp. v. East Coast Sand &

Gravel, Inc., 93 Mass. App. Ct. 782, 783 (2018).

The plaintiff enrolled at the defendant New England School

of Acupuncture (NESA) for the 2015-2016 academic year. That

same year, NESA merged with the Massachusetts College of

1Massachusetts College of Pharmacy and Health Sciences,
Jason Powers, Will Cribby, and Meredith St. John.
Pharmacy and Health Sciences (MCPHS), and NESA students became

students of MCPHS University (school). Defendants Jason Powers,

Will Cribby, and Meredith St. John served in managerial roles at

the school and communicated with the plaintiff throughout the

school year.

Powers told the plaintiff that she would have to attend the

school half time because funds were not available for her to

attend full time. Her student loan advisor encouraged her to

process a student loan for a full year, permitting the school to

have use of $10,857 of the loan proceeds interest free for three

months starting in October 2015. Meanwhile, the plaintiff was

locked out of class selection each semester she attended and was

unable to enroll in the classes she wanted, including most of

the first-year classes. Cribby guided her to enroll in second-

year cadaver labs and third-year Chinese medicine courses, even

though she had not taken the prerequisite lower-level classes.

The only first-year class the plaintiff was able to enroll in

during the fall 2015 semester was "Human Anatomy & Physiology."

The plaintiff tried to withdraw from the class because she was

in fear of one of the other students, but Cribby refused to

allow her to do so. She received a failing grade and was placed

on academic probation for the spring 2016 term.

That semester, the plaintiff registered for two first-year

classes in Japanese acupuncture that she wanted to take, but

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Cribby withdrew her from those classes, stating she had not

taken the prerequisite courses. Again, he guided her into

classes for which she was not prepared. The plaintiff enrolled

in courses for a total of six credits, the minimum credit load

required for half-time enrollment. Due to the school's

cancellation of a quarter-credit lab, the plaintiff's enrollment

dropped to less than half-time, rendering her ineligible for

forbearance on her undergraduate student loans. She defaulted

on these loans.

The plaintiff was notified in May 2016 that she would have

to address the default on her undergraduate loans and submit a

new loan application to attend courses at the school during the

summer semester. Not having sufficient funds to attend the

summer session, the plaintiff was forced to drop out. She

withdrew from the school on June 2, 2016, citing as the reason

for her withdrawal, "Theft of my student loan."

The plaintiff's attorney sent demand letters to the school

in 2018 and 2020, detailing substantially the same claims the

plaintiff later advanced in her complaint, filed May 15, 2020,

in the Superior Court. The defendants moved for summary

judgment on the grounds that the plaintiff's tort claims were

barred under the applicable three-year statute of limitations

and that the remaining claims were not well founded in fact or

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law. The judge granted the motion, and judgment entered for the

defendants on all counts.

Discussion. The plaintiff argues the motion judge

erroneously granted the defendants' motion for summary judgment.

As a threshold issue, contrary to the plaintiff's assertion, the

denial of the defendants' motion to dismiss under Mass.

R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), had no res judicata

effect and did not preclude the defendants' subsequent motion

for summary judgment. The motions are filed at different stages

of litigation and are judged under different standards. Compare

Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008)

(explaining standard for rule 12 [b] [6] dismissal), with

Leavitt v. Mizner, 404 Mass. 81, 88 (1989) (explaining standard

for summary judgment).

"[S]ummary judgment is appropriate when the material facts

are not in dispute and as a matter of law their legal

significance warrants a decision for one party or the other."

Campbell v. Schwartz, 47 Mass. App Ct. 360, 363-364 (1999). The

allowance of a motion for summary judgment as a matter of law

where there are no disputed issues of material fact obviates the

need for a jury trial. See Correllas v. Viveiros, 410 Mass.

314, 316 (1991); Community Nat'l Bank v. Dawes, 369 Mass. 550,

553 (1976). "We review a decision to grant summary judgment de

novo." Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012).

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Because our review is de novo, we need not address the

plaintiff's repeated claims that the motion judge misconstrued

or misstated facts in the record. See Reading v. Murray, 405

Mass. 415, 418 (1989) ("All errors and irregularities in the

proceedings below are rendered immaterial" by de novo review

[quotation and citation omitted]).

1. Tort claims. The plaintiff's complaint, filed May 15,

2020, alleged seven tort claims: conversion, fraud, breach of

fiduciary duty, civil conspiracy, misrepresentation, intentional

infliction of emotional distress, and negligence. Tort claims

"are governed by the three-year limitation period provided by

G. L. c. 260, § 2A." Passatempo v. McMenimen, 461 Mass. 279,

293 (2012). All the plaintiff's claims arise from alleged harms

that occurred before her withdrawal from the school, nearly four

years before she filed a complaint. In both the 2018 and the

2020 demand letters, the plaintiff's attorney provided a

timeline of events that ended with the spring 2016 semester.

Moreover, the plaintiff acknowledged the harm -- the alleged

theft of her student loan -- on her withdrawal form, indicating

she was aware of her alleged injuries by the defendants no later

than June 2, 2016.

The plaintiff contends, however, that under the common-law

discovery rule, her tort claims are not barred by the statute of

limitations, and, moreover, that the motion judge usurped the

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jury's function in concluding that they were. As to the latter

point, "[t]he applicability of a particular statute of

limitations is a question of law." Marks v. Ross Univ. Sch. of

Veterinary Med., Inc., 106 Mass. App. Ct. 253, 257 (2025). "If

there is no genuine dispute about when the plaintiff learned of

the harm, and the statute of limitations has expired by the time

the plaintiff filed [her] complaint, dismissal of the complaint

under Mass. R. Civ. P. 12 (b) (6) or summary judgment is

appropriate." Id. at 258.

Under the discovery rule, "a cause of action accrues when

the plaintiff discovers or with reasonable diligence should have

discovered that (1) he has suffered harm; (2) his harm was

caused by the conduct of another; and (3) the defendant is the

person who caused that harm." Harrington v. Costello, 467 Mass.

720, 727 (2014). The plaintiff claims that although the comment

on her withdrawal form suggests that she knew something was

amiss, "with no legal training," she could not have known the

nature or extent of the school's tortious conduct; the

plaintiff's attorney discovered the full extent of the

defendants' misconduct only after sending the first demand

letter in 2018, when he put together two financial documents in

his possession.

The discovery rule does not toll the statute of limitations

until the plaintiff becomes aware of the legal basis or precise

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contours of a tort claim, but only until she is aware she has

suffered harm. "The knowledge required 'is not notice of every

fact which must eventually be proved in support of the claim,'

but rather 'knowledge that an injury has occurred.'" Pagliuca

v. Boston, 35 Mass. App. Ct. 820, 824 (1994), quoting White v.

Peabody Constr. Co., 386 Mass. 121, 130 (1982). See Zampell v.

Consolidated Freightways Corp., 15 Mass. App. Ct. 954, 954

(1983) ("In instances in which the statute of limitations has

been tolled . . . . [f]acts were unknown, not legal theories").

As the plaintiff's counsel admitted at oral argument, the

relevant documentation was available to the plaintiff even

before her withdrawal from the school. There is no genuine

dispute that the alleged harm to the plaintiff occurred -- and

that the plaintiff knew of that harm -- any later than June 2,

2016. The filing of her complaint was untimely. 2

The plaintiff argues that, despite this timing, the statute

of limitations does not bar her claim because the defendants

fraudulently concealed her causes of action, or alternatively,

2 The plaintiff also argues that the wrongs perpetrated by
the defendants were "inherently unknowable" until 2018. The
"inherently unknowable" standard is no different from the "knew
or should have known" standard. See Davalos v. Bay Watch, Inc.,
494 Mass. 548, 553 (2024) (counseling litigants and judges to
"use and apply only the 'knew or should have known' language,
and not the inherently unknowable formulation, when discussing
the discovery rule").

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because a fiduciary relationship existed between her and the

defendants.

"When a defendant fraudulently conceals a cause of action
from the knowledge of a plaintiff, the statute of
limitations is tolled under G. L. c. 260, § 12, for the
period prior to the plaintiff's discovery of the cause of
action. Where a fiduciary relationship exists, the failure
adequately to disclose the facts that would give rise to
knowledge of a cause of action constitutes fraudulent
conduct and is equivalent to fraudulent concealment for
purposes of applying § 12."

Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 519

(1997). In either circumstance, an actual knowledge standard

applies, and the statute of limitations "begins only once the

plaintiff gains knowledge of the particular harm forming the

basis for his or her claim." Tocci v. Tocci, 490 Mass. 1, 13

(2022). In other words, the statute of limitations is tolled

until "the beneficiary's harm at the fiduciary's hands has 'come

home' to the beneficiary." Doe v. Harbor Sch., Inc., 446 Mass.

245, 255 (2006), quoting Akin v. Warner, 318 Mass. 669, 676

(1945). "However, if the plaintiff has either actual knowledge

of his claim or the 'full means of detecting the fraud,' the

limitations period is not tolled." Stolzoff v. Waste Sys.

Int'l, Inc., 58 Mass. App. Ct. 747, 757 (2003), quoting Lynch v.

Signal Fin. Co., 367 Mass. 503, 508 (1975).

Assuming without deciding that the defendants had a

fiduciary relationship with the plaintiff, she has presented no

evidence that they concealed facts necessary for her to

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apprehend that the defendants had harmed her, fraudulently or

otherwise. The plaintiff, and her attorney, had access to the

very financial records that, she claims, confirmed the school's

improprieties. Her statement on the withdrawal form indicates

she had the full means to detect, and indeed did detect, the

fraud she now alleges, on or before June 2, 2016. Because the

period between this detection and the filing of her complaint

exceeds three years, and because the plaintiff has failed to

establish "facts that, if proved at trial, would bring the

plaintiff's claims outside the impact of the statute of

limitations," O'Connor v. Redstone, 452 Mass. 537, 551 (2008),

her tort claims are time barred, and summary judgment was

properly granted as to those claims.

2. Contract, c. 93A, and declaratory relief claims. The

plaintiff also alleged claims for breach of contract, violation

of G. L. c. 93A, and declaratory relief. Although these claims

were brought within the relevant statutes of limitations, the

judge determined that the defendants were entitled to summary

judgment as a matter of law on all three of them. The

plaintiff's brief makes only fleeting references to her c. 93A

claim and does not mention the claim for declaratory relief even

once, so we do not address these claims further. See Mass.

R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019)

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("The appellate court need not pass upon questions or issues not

argued in the brief").

References to the plaintiff's contract claim are peppered

throughout her brief, but without any recognizable organization

or sustained argument, and without reference to a single legal

authority. Arguments based on "naked assertion[s], unsupported

by any authority or reasoned argument," Andover v. Energy

Facilities Siting Bd., 435 Mass. 377, 394 (2001), do not rise to

the level of appellate argument and are deemed waived. See

Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003

(2011); Geezil v. White Cliffs Condominium Four Ass'n, 105 Mass.

App. Ct. 103, 112 n.8 (2024); Adoption of Zak, 90 Mass. App. Ct.

840, 842 n.4 (2017).

3. Abuses of discretion. The plaintiff further argues

that the motion judge failed to address opposing counsel's

violations of Superior Court rules and that the defendants

destroyed evidence. 3

"[A] judge has discretion to decide whether to excuse

noncompliance with procedural rules." Matter of 17 Albion St.

3 The plaintiff also claims that the judge was "hostile" to
her, but she does not provide evidence to support this
allegation other than the judge's delay in deciding the summary
judgment motion. The record does not support the plaintiff's
claim of judicial bias, and, in any event, the claim is
untimely. See Demoulas v. Demoulas Super Mkts., Inc., 428 Mass.
543, 549 (1998).

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Trust, 100 Mass. App. Ct. 873, 880 (2022). See USTrust Co. v.

Kennedy, 17 Mass. App. Ct. 131, 135 (1983) (trial judges "have

discretion to forgive a failure to comply with a rule if the

failure does not affect the opposing party's opportunity to

develop and prepare a response"). The plaintiff does not

explain how she was disadvantaged by the defendants' procedural

rule violations, such as their failure to confer with her prior

to filing the summary judgment motion, or alleged tampering with

her summary judgment exhibits. The plaintiff's attorney was

aware that the defendants would be filing the motion and does

not claim that further discussions are likely to have

"narrow[ed] areas of disagreement," as is the purpose of the

rule. Rule 9C (b) of the Rules of the Superior Court (2025).

Likewise, even assuming, arguendo, that the defendants committed

the other bad acts the plaintiff alleges, they had no effect on

the proceedings. In response to the plaintiff's claims of

document tampering, the judge agreed to rely on the plaintiff's

documents alone.

Finally, the plaintiff challenges the judge's denial of her

motion for sanctions against the defendants for spoliation. We

review the denial of the plaintiff's motion for an abuse of

discretion. See Zaleskas v. Brigham & Women's Hosp., 97 Mass.

App. Ct. 55, 75 (2020). We agree with the judge that the

statues and regulations the plaintiff relies upon are

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inapplicable. Nor do we discern an abuse of discretion in the

judge's determination that the plaintiff's withdrawal, citing

"Theft of my student loans," did not put the defendants on

notice that the plaintiff's academic records might be relevant

to a possible action four years later. See Kippenhan v. Chaulk

Servs., Inc., 428 Mass. 124, 127 (1998). Additionally, the

plaintiff's attorney stated that he downloaded and saved the

documents that the defendants allegedly destroyed, suggesting

that no harm flowed from the defendants' failure to retain

records.

Judgment affirmed.

By the Court (Massing, Hand &
Allen, JJ. 4),

Clerk

Entered: February 9, 2026.

4 The panelists are listed in order of seniority.

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