Opinion
21-P-583
04-27-2022
JANINE MARIE BALISTRERI v. SUZAN T. ROTHSCHILD & another.[1]
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The pro se plaintiff, Janine Marie Balistreri, appeals from summary judgment entered in favor of her former attorney, Suzan T. Rothschild, and her law firm, the Law Office of Suzan T. Rothschild (collectively, the defendants), on the plaintiff's claims of negligence and breach of fiduciary duty. We affirm.
We decline the defendants' request to dismiss the plaintiff's appeal based on claims that her brief was prepared with the assistance of counsel without proper disclosure and instead reach the merits.
Background.
As we must, we recite the facts in the summary judgment record in the light most favorable to the plaintiff, the party against whom judgment has entered. See Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). The plaintiff retained the defendants to represent her in connection with a modification trial addressing several issues, including her post-divorce counterclaim requesting an increase in alimony. At trial, which commenced on February 14, 2017, the plaintiff argued that her ex-husband earned more income than he claimed on his financial affidavit. Several documents were admitted as uncontested exhibits, including a credit application for the purchase of a Jaguar vehicle submitted by the plaintiff's ex-husband to Land Rover Financial Services ("Jaguar document"). On the Jaguar document, the plaintiff's ex-husband represented that his gross annual income was approximately $1 million. The plaintiff now disputes that this document was admitted as an exhibit at trial or was considered by the Probate and Family Court judge.
In addition to the plaintiff's counterclaim for upward modification of alimony, the trial addressed a remand concerning the duration of alimony awarded in the divorce judgment and the plaintiff's ex-husband's complaint for modification seeking to terminate his child support obligation and medical coverage for his and the plaintiff's child. See Balistreri v. Balistreri, 93 Mass.App.Ct. 515, 518 & n.10 (2018).
The plaintiff's ex-husband claimed that he earned $3, 094 weekly, or $160, 888 annually, on his financial affidavit.
Notably, at trial, the judge instructed the parties' counsel that when addressing the uncontested exhibits they were not required to elicit "testimony ... to verify" them. Instead, the judge stated that if counsel wished to examine a witness about an uncontested exhibit they could simply reference the exhibit number without the need for further authentication. As a result, when Attorney Rothschild sought to cross-examine the plaintiff's ex-husband about the Jaguar document, she drew the judge's attention to the particular exhibit number and asked the ex-husband to explain the discrepancy between the income he reported on his financial affidavit and the income reported on the Jaguar document. This question triggered an interjection by ex-husband's counsel, who contended that Attorney Rothschild was "mixing apples and oranges." The judge agreed with the characterization, and asked Attorney Rothschild to rephrase the question, noting that what the ex-husband reported on the Jaguar document was "not obviously dispositive of how much he earns."
Following the modification trial, after which the plaintiff received an increase in alimony, the plaintiff filed this action against the defendants alleging, inter alia, that the defendants were negligent and breached their fiduciary duty to her by failing to properly admit the Jaguar document as an exhibit at trial. To that end, the plaintiff disclosed Attorney Bruce Cohen as the expert in her case. Attorney Cohen, who is also a certified public accountant licensed in Massachusetts, submitted an expert affidavit calculating the damages suffered by the plaintiff. The affidavit, however, did not aver the standard of care applicable to support her claims. On March 1, 2021, a Superior Court judge ordered the plaintiff to provide the defendants with all expert disclosures by April 7, 2021, in compliance with Rule 30B of the Rules of the Superior Court (2021). The plaintiff did not disclose any additional experts by the court-ordered deadline.
The plaintiff also asserted claims of breach of contract, fraud, and violation of G. L. c. 93A, § 2, but those claims were dismissed prior to the entry of summary judgment.
Notably, prior to the issuance of that order, a different Superior Court judge cautioned the plaintiff numerous times that she was required to obtain a standard of care expert to support her negligence and breach of fiduciary duty claims. At a hearing in July 2020, the plaintiff represented that she attempted to obtain such an expert but was unsuccessful in doing
On April 16, 2021, the defendants moved for summary judgment, contending that absent a standard of care expert the plaintiff could not reasonably expect to prove her negligence and breach of fiduciary duty claims. The motion judge agreed, and accordingly entered judgment in favor of the defendants and dismissed the plaintiff's complaint. This appeal followed.
Discussion. "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Boazova, 462 Mass. at 350. "A party seeking summary judgment may satisfy its burden of demonstrating the absence of triable issues by showing that the party opposing the motion has no reasonable expectation of proving an essential element of its case" (citation omitted). Id. "We review a motion for summary judgment de novo." Edwards V. Commonwealth, 488 Mass. 555, 562 (2021).
"To prevail on a claim of negligence by an attorney, a client must demonstrate that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained . . .; that the client has incurred a loss; and that the attorney's negligence is the proximate cause of the loss." Kiribati Seafood Co., LLC v. Dechert LLP, 478 Mass. Ill. 117 (2017), quoting Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010). "Expert testimony is generally necessary to establish that the attorney failed to meet the standard of care owed by an attorney in a particular case." Pongonis v. Saab, 396 Mass. 1005, 1005 (1985). However, such testimony is not necessary "where the claimed legal malpractice is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence." Id.
Here, the plaintiff failed to support her negligence claim with expert testimony establishing that the defendants did not meet the necessary standard of care in representing her at the modification trial. The failure to do so is fatal to her negligence claim, as this is not a case where the alleged malpractice is "so gross or obvious" as to render expert testimony unnecessary. Pongonis, 396 Mass. at 1005. Despite the plaintiff's claims to the contrary, the Jaguar document was admitted in evidence at the trial, and the judge specifically informed counsel that testimony was not required to authenticate the document. We agree with the motion judge that "[w]hether the standard of care required [the defendants] to do more . . . is a matter beyond the knowledge of the average layperson."
To the extent the plaintiff argues on appeal that the defendants were negligent in failing to file a timely motion to compel the production of documents, such an allegation does not appear in her complaint. See Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985) .
Similarly, without expert testimony, the plaintiff has no reasonable expectation of prevailing on her breach of fiduciary duty claim, which arises out of the same legal relationship and the same alleged breach as her negligence claim. See Van Erode Group, Inc. v. Bowditch & Dewey, 3 6 Mass.App.Ct. 509, 517 n.lO (1994). Accordingly, summary judgment was properly granted in favor of the defendants.
Judgment affirmed.
The panelists are listed in order of seniority.