Opinion
20-P-1053
08-05-2021
Janine Marie BALISTRERI v. LAW OFFICE OF DANIEL W. MURRAY & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, appearing pro se, filed a seven-count complaint against the Law Office of Daniel W. Murray and attorney Christopher L. Murray. On the defendants’ motions, a Superior Court judge dismissed the complaint for failure to state a claim upon which relief can be granted and ordered the entry of separate and final judgment, finding no just reason for delay. The plaintiff then filed what she called a motion to "strike" the order allowing the defendants’ motion for entry of separate and final judgment. After the motion to strike was denied, the plaintiff appealed. She argues that her complaint states a viable claim and that separate and final judgment should not have entered. We affirm.
The claims against codefendant Maryann Bellafato are not at issue on appeal. Our use of "defendants" in this opinion refers only to the Law Office of Daniel W. Murray and Christopher L. Murray.
Appellate jurisdiction. We begin by addressing the defendants’ contention that the appeal must be dismissed for lack of jurisdiction. The judgment entered on January 10, 2020, and the plaintiff filed (and apparently served) her motion to strike on January 13, 2020. On January 21, 2020, before a ruling on the motion to strike, the plaintiff filed a notice of appeal. The motion to strike was denied on August 12, 2020, and the plaintiff filed another notice of appeal on August 17, 2020.
We agree with the defendants that the plaintiff's motion to strike was, in essence, a timely motion for relief from the judgment and, as such, tolled the time for taking an appeal. See Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606 (2019) (motion "to alter or amend a judgment ... or for relief from judgment ..., however titled," tolls appeal period if "served within [ten] days after entry of judgment"). But although this means that the January 21, 2020, notice of appeal was of no effect, the plaintiff preserved her appellate rights by filing a new notice of appeal on August 17, 2020, within thirty days of the denial of the motion to strike. See Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1607 (2019). We are unpersuaded by the defendants’ assertion that we nonetheless lack jurisdiction because the August 17 notice of appeal did not specify that the plaintiff was appealing from the judgment or the order dismissing the complaint. See Mass. R. A. P. 3 (c) (1), as appearing in 481 Mass. 1604 (2019) ("The notice of appeal ... shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from"). The defendants cite no authority for the proposition that the designation requirement of Mass. R. A. P. 3 (c) (1) is strictly jurisdictional in nature. To the contrary, we have viewed the requirement with flexibility and have deemed notices of appeal sufficient so long as they fairly inform the other parties of what is at issue on appeal. See Fazio v. Fazio, 91 Mass. App. Ct. 82, 84 n.7 (2017) ; Carter v. Empire Mut. Ins. Co., 6 Mass. App. Ct. 114, 117 n.3 (1978).
Instead, the August 17 notice of appeal designates only the order denying the motion to strike. As the defendants note, the plaintiff makes no argument challenging that denial.
Here, the defendants do not contend that they were misled by the notice of appeal, and they have fully briefed whether the complaint states a viable claim. We therefore proceed to the merits. See Fazio, 91 Mass. App. Ct. at 84 n.7.
Dismissal of the complaint. Read liberally, the complaint appears to assert that the defendants took some action that deprived the plaintiff of her beneficiary interest in a property located in Everett. Other than conclusory assertions of wrongful conduct, the only factual allegations pertaining to the defendants are: Christopher Murray emailed the plaintiff on August 11, 2016, asking her to sign some documents; the email stated that "this will allow you and your siblings to receive shares of the sale of [the property]"; and, after the plaintiff returned the signed documents to Murray and asked about the status of her money, he replied, "Unfortunately there were some deceased relatives in Florida, and Maryann [Bellafato] told me that nobody wants to pay to have the estates worked out. It looks like [the property] is a lost cause at this point." Based on these allegations, the plaintiff raised the following claims: (1) negligence; (2) breach of fiduciary duty; (3) breach of contract; (4) violation of G. L. c. 93A, § 9 ; (5) fraud; (6) violation of G. L. c. 190B, § 3-709 ; and (7) violation of the rules of professional conduct.
We review de novo the allowance of a motion to dismiss for failure to state a claim, "accept[ing] as true the facts alleged in the plaintiff[’s] complaint as well as any favorable inferences that reasonably can be drawn from them." Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). To survive dismissal, the complaint must set forth "factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Each of the plaintiff's claims was correctly dismissed under this standard.
First, the complaint fails to state a claim for negligence or breach of fiduciary duty because, among other reasons, it sets forth no facts that plausibly establish the existence of a duty that the defendants owed to the plaintiff. The complaint does not allege an attorney-client relationship, and the plaintiff concedes there was none. While it is true, as the plaintiff argues, that "an attorney owes a duty to nonclients who the attorney knows will rely on the services rendered," Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 524, cert. denied, 493 U.S. 894 (1989), the allegations relating to Murray's email do not plausibly suggest that it gave rise to such a duty. In fact, the record shows, and the plaintiff concedes, that the defendants at some point represented codefendant Bellafato, negating any inference that they owed the plaintiff a potentially conflicting duty as a nonclient. See Symmons v. O'Keeffe, 419 Mass. 288, 300 (1995) ; Spinner v. Nutt, 417 Mass. 549, 553 (1994) ; Robertson, supra. The complaint's "naked assertion[s]" that the defendants breached a duty, "without some further factual enhancement," are insufficient to withstand dismissal. Bell Atl. Corp., 550 U.S. at 557. See Iannacchino, 451 Mass. at 636.
The remaining claims fare no better. The complaint does not identify an enforceable contract that could support the breach of contract claim, nor does it allege facts that plausibly suggest that the defendants committed unfair or deceptive conduct within the meaning of G. L. c. 93A. Likewise, the complaint fails to state a claim for fraud, which must be pleaded "with particularity." Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974). See Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 463 n.7 (1997). The rules of professional conduct do not provide a private right of action. See Sullivan v. Birmingham, 11 Mass. App. Ct. 359, 368 (1981). Finally, G. L. c. 190B, § 3-709, which governs the duties of a "personal representative" of an estate, has no applicability to the defendants.
Separate and final judgment. The plaintiff argues that the entry of separate and final judgment was improper given the factual and legal overlap between the dismissed and surviving claims. The plaintiff did not raise this argument in the Superior Court and did not oppose the defendants’ motion for entry of separate and final judgment. The argument is therefore waived. See Tierney v. John Hancock Mut. Life Ins. Co., 58 Mass. App. Ct. 571, 587 (2003).
The plaintiff also summarily asserts that the entry of separate and final judgment violated a bankruptcy stay. This assertion does not rise to the level of adequate appellate argument. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019).
Judgment dated January 10, 2020, affirmed.
Order denying motion to strike affirmed.