Opinion
18-P-1275
04-18-2019
JANINE MARIE BALISTRERI v. CYNTHIA A. BRANDT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Janine Marie Balistreri, appeals from a judgment entered in favor of the defendant, Cynthia A. Brandt, on the parties' cross motions for summary judgment. Substantially for the reasons set forth in the judge's comprehensive memorandum of decision, we affirm.
The dispute arises out of a divorce case between the plaintiff and Guiseppe Balistreri. See Balistreri v. Balistreri, 93 Mass. App. Ct. 515 (2018); Balistreri v. Balistreri, 89 Mass. App. Ct. 1106 (2016). The present complaint was filed by the plaintiff on June 19, 2017, and includes three counts: first, a count alleging a violation of G. L. c. 93A; second, a count alleging breach of contract; and third, a count alleging misrepresentation.
Separating arguments and factual assertions that are not supported by affidavit or otherwise verified as required by Mass. R. Civ. P. 56, 365 Mass. 824 (1974), from factual statements that a judge may properly consider under rule 56, the essential facts are not in dispute. In October, 2013, the plaintiff, through her attorney, Matthew Martin, retained the services of the defendant, a certified public accountant, to act as an expert witness at her upcoming divorce trial. There was a meeting on October 10, 2013, that included the plaintiff, Attorney Martin, the defendant, and Bruce Cohen, a friend of the plaintiff, to discuss work for the plaintiff consisting of the valuation of a business known as JB Fish Company (company), reportedly owned by the plaintiff's then-husband, Guiseppe Balistreri. The defendant never received a signed engagement letter from the plaintiff containing the scope of services to be provided, a deadline for producing a report, or a fee schedule. Some financial documents pertaining to the company were provided to the defendant at that meeting, but it was understood by all that additional documents were necessary and would be provided to the defendant. On October 23, 2013, Attorney Martin delivered a check to the defendant in the amount of $2,500. The following day, Attorney Martin informed the defendant that the trial in the divorce case was scheduled for April 16, 2014. Attorney Martin received an e-mail from the defendant on or about December 11, 2013, requesting additional documents in order to complete the valuation of the company. However, on December 13, 2013, before providing any additional documents to the defendant, the plaintiff requested that Attorney Martin withdraw from the case. He did so with the approval of a judge on January 24, 2014. Thereafter, on January 27, 2014, Attorney Martin received bank records and other documents concerning the company that had been sought by the defendant. Because he was no longer serving as the plaintiff's lawyer, Attorney Martin turned these documents and the case file he had developed over to the plaintiff later that month. The plaintiff did not forward any additional documents to the defendant.
The next event of significance occurred on March 11, 2014, when the plaintiff e-mailed the defendant informing her that the case was scheduled for trial on April 16-17, 2014, and seeking her expert witness report. On March 16, 2014, defendant responded to the plaintiff by e-mail, informing her that when Attorney Martin was representing her, the defendant made it clear that she could not perform her valuation until the additional documentation was provided, and that due to her work schedule the valuation would have to be done in the month of January. The defendant also returned $2,200 to the plaintiff, charging her only for the initial meeting and review of documents. Thereafter, the plaintiff's successor counsel filed an unsuccessful motion to compel the defendant to testify at the divorce trial. The plaintiff's case went to trial without an expert witness to testify to the valuation of the company.
The plaintiff's complaint in the present case was not filed until June, 2017. We agree with the judge that the third count of the complaint (misrepresentation) is barred by the three-year statute of limitations. G. L. c. 260, § 2A. Certainly, by March 2014, the plaintiff was aware of the harm she would suffer as a result of going to trial without an expert witness. We also agree with the judge that the second count of the complaint is barred by the three-year statute of limitations set forth in G. L. c. 260, § 4, which provides in part that "[a]ctions of contract or tort, malpractice for error or mistake against . . . certified public accountants . . . shall be commenced only within three years next after the cause of action accrues." The gist of count two of the complaint is that the defendant was negligent in not completing her report in time for trial. The plaintiff was aware of this claim no later than the time of her divorce trial in April, 2014. Finally, because the plaintiff's remaining claim (count one) alleging a violation of G. L. c. 93A is entirely derivative of her other two claims, it too was properly dismissed. See Macoviak v. Chase Home Mtge. Corp., 40 Mass. App. Ct. 755, 760 (1996).
Judgment affirmed.
By the Court (Hanlon, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 18, 2019.