Opinion
18-P-827
03-25-2019
JEAN MARIE BALISTRERI v. MARC FITZGERALD & others.
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, brought this action against her former attorney, Marc Fitzgerald, his law firm, Casner & Edwards, (collectively, Fitzgerald); Marc Bello, an accountant, and Bello's firm, Edelstein & Company, (collectively, Bello); and another former attorney, Elena Marie Rosnov. The defendants' motions to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), were granted by a judge in the Superior Court, and the plaintiff appeals. For substantially the reasons set forth by the judge in his memorandum of decision and order, we affirm.
The record indicates that the plaintiff retained Rosnov in January of 2013 to represent her in the divorce proceedings but that Rosnov was also permitted to withdraw on the basis of a breakdown in the attorney-client relationship after approximately five months. In her brief, the plaintiff acknowledges that "the complaint does not set forth any specific wrongdoing against Rosnov, [and the plaintiff] concedes that she could not make any good faith argument on appeal with respect to that defendant." Accordingly, the order dismissing the complaint as to Rosnov is affirmed without further discussion.
Background. The complaint alleges that in October of 2011, the plaintiff retained Fitzgerald to represent her in divorce proceedings against her husband. In April of 2012, Fitzgerald sought and obtained the plaintiff's permission to hire Bello to review the records of the plaintiff's husband's wholesale fish business (JB Fish). The plaintiff paid $5,500 to Fitzgerald for Bello's services. In July, 2012, Bello sent the plaintiff a litigation service engagement form, which the plaintiff did not sign, and a preliminary accounting report for JB Fish. Thereafter, on August 24, 2012, Fitzgerald filed an emergency motion to withdraw as the plaintiff's counsel in the divorce proceedings, citing a breakdown of communication. The motion to withdraw was allowed, and the plaintiff hired Attorney Rosnov to represent her. A few months later, however, on January 30, 2013, the Probate and Family Court judge also allowed Rosnov to withdraw, for "among other reasons, a substantial and irreparable breakdown in communication." Around the same time, acting pro se, the plaintiff subpoenaed Bello to testify at the divorce trial as her expert. Bello filed a motion to quash, which the judge allowed on February 6, 2013. Bello also formally terminated any professional relationship with the plaintiff a few days later by letter.
As an example of the breakdown, Fitzgerald noted that the plaintiff had failed to inform him that she had filed for bankruptcy.
A trial in the divorce case was held in the spring of 2014. The main point of contention was the value of JB Fish. At the conclusion of the trial, the judge found that JB Fish had "negligible value," and awarded alimony. The plaintiff appealed from the divorce judgment, and this court vacated the portion of the judgment that set out the duration of the alimony award and remanded for reconsideration of that issue; in all other respects, the divorce judgment was affirmed, including the finding that JB Fish had negligible value. Balistreri v. Balistreri, 89 Mass. App. Ct. 1116 (2016). After the remand, a supplemental judgment issued on the subject of the duration of the alimony award. The plaintiff again appealed, and this court ordered the alimony award to be modified. Balistreri v. Balistreri, 93 Mass. App. Ct. 515, 522 (2018).
The plaintiff then filed this action alleging G. L. c. 93A violations against Fitzgerald, Rosnov, and Bello, and breach of contract, misrepresentation, violations of the rules of professional conduct, and negligence against Fitzgerald. In their motions to dismiss, the defendants argued that the claims were time-barred under the relevant statutes of limitation and that the plaintiff failed to allege sufficient facts to state a claim for which relief can be granted.
In opposing the motions to dismiss, the plaintiff asserted that her c. 93A and negligence claims were not time-barred because she could not have known that she was harmed by the defendants' actions until this court issued its first decision in her divorce appeal, in which the issues she raised regarding JB Fish's valuation were addressed. The judge rejected this argument. In regard to the plaintiff's c. 93A and malpractice claims, the judge explained:
"The overall gist of the plaintiff's c. 93A and malpractice claims is that the defendants failed to present to the probate court a proper valuation of the husband's business, which negatively affected her alimony award. The critical inquiry under the limitations analysis, thus, is when the plaintiff knew that the defendants' failure in this regard had harmed her. Given that the plaintiff, herself, attempted to introduce such evidence in January or February 2013 by subpoenaing Bello pro se, it was at that point that she reasonably knew or should have known of its necessity in proving the proper alimony amount, and that Fitzgerald and Rosnov, who had already withdrawn, had failed to present it to the court. February of 2013 is more than four years prior to when the plaintiff filed her complaint on July 19, 2017."
Concerning the plaintiff's claim of misrepresentation, the judge reasoned that because the claim is based on facts upon which Fitzgerald relied to support his motion to withdraw filed in August 2012, the plaintiff was or should have been aware of the alleged misrepresentation in 2012. Accordingly, the statute of limitations (three years) had run on this claim as well.
The judge did not specifically discuss the breach of contract claim in his statute of limitations analysis because he correctly viewed that claim as one for malpractice. In addition, he also concluded that even if the plaintiff's c. 93A, negligence, and breach of contract claims are not time-barred, those claims are not viable because all the defendants concluded their relationships with the plaintiff before the divorce trial, and thus were not involved in the introduction of evidence regarding the value of JB Fish. The judge also noted that the complaint did not contain sufficient factual predicates for any of the claims alleged. Lastly, the judge noted that an attorney's violation of the rules of professional conduct "do[es] not give rise to a cause of action." Doe v. Nutter, McClennen & Fish, 41 Mass. App. Ct. 137, 141 (1996).
Discussion. Our review of a motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), is de novo. See Burbank Apartments Tenant Ass'n v. Kargman, 474 Mass. 107, 116 (2016). We accept as true the facts alleged in the plaintiff's complaint and favorable inferences that can be drawn from them. Id.
Our review of the plaintiff's complaint leads us to the same conclusions reached by the motion judge. As the judge observed, the statute of limitations for claims brought pursuant to c. 93A is four years, G. L. c. 260, § 5A, and legal malpractice and misrepresentation claims must be commenced within three years of the date the cause of action accrues. G. L. c. 260, §§ 2A and 4. Under the discovery rule, accrual for a legal malpractice claim occurs "when a client 'knows or reasonably should know that he or she has sustained appreciable harm as a result of the lawyer's conduct.'" Lyons v. Nutt, 436 Mass. 244, 247 (2002), quoting Williams v. Ely, 423 Mass. 467, 473 (1996). The same principle holds true for the c. 93A claim. Schwartz v. Travelers Indem. Co., 50 Mass. App. Ct. 672, 678 (2001). For a misrepresentation claim, it is the point at which "a plaintiff learns or reasonably should have learned of the misrepresentation." Kent v. Dupree, 13 Mass. App. Ct. 44, 47 (1982). Here, the plaintiff knew or reasonably should have known that she sustained the alleged harm, which underlays her c. 93A and malpractice claims, by February 2013 when she subpoenaed Bello to testify at her divorce trial. At that point, as the judge correctly determined, the plaintiff was aware of the importance of presenting a proper valuation of her former husband's business.
Alternatively, even if the plaintiff's claims were not time-barred, they are factually insufficient to survive a rule 12(b)(6) motion to dismiss. As previously discussed, the harm alleged here is a reduced alimony award as a result of the de minimis valuation of JB Fish. The plaintiff acknowledges, however, that all of the defendants terminated their relationship with her over a year or more before her divorce action went to trial. The record indicates that three additional attorneys acted in the interim. As the judge stated, "The complaint is entirely devoid of allegations that bridge that gap in time and explain how, despite the other attorneys' representation, it was the defendant' failures or deceptive acts which resulted in a loss to her. The complaint is likewise silent about what the deceptive acts were, in particular, and fails to name any actions Fitzgerald could have taken that would have obtained a better result." We agree with the judge's reasoning in all respects and affirm the judgment dismissing the plaintiff's claims of breach of contract, c. 93A violations, and misrepresentation.
We likewise agree with the judge that in the absence of a private right of action for a violation of the rules of professional conduct or perjury, the plaintiff's claim that Fitzgerald violated the rules of professional conduct must be dismissed. See Doe, 41 Mass. App. Ct. at 141 ("The disciplinary rules provide standards of professional conduct of attorneys and do not in and of themselves create independent causes of action").
Judgment affirmed.
By the Court (Vuono, Hanlon & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 25, 2019.