Opinion
No. 15–P–1104.
07-28-2016
David F. LYONS v. GOVERNO LAW FIRM, LLC, & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment entered following the allowance of the defendants' motion to dismiss his complaint for his failure to comply with an order to identify an expert witness for his legal malpractice case. We affirm.
We summarize the facts most relevant to this particular appeal. The defendants represented the plaintiff from November 28, 2007, until February 26, 2009. After the plaintiff failed to pay the defendants the full amount of their legal fees, they withdrew and filed a notice of attorney's lien. Judgment entered in favor of the defendants on their motion to enforce the lien, and the judgment was affirmed on appeal. Lyons v. Governo Law Firm, LLC, 84 Mass.App.Ct. 1132 (2014).
This is but one of several actions between the parties, one of which was the subject of the plaintiff's earlier appeal to this court. See Lyons v. Governo Law Firm, LLC, 84 Mass.App.Ct. 1132 (2014).
On December 13, 2012, the plaintiff filed a twenty-one-count complaint against the defendants arising out of their representation of him. On September 2, 2014, the judge ordered the plaintiff to identify his expert and file an expert witness report by December 5, 2014.
The complaint included counts for fraud in the inducement, express breach of contract, material breach of contract, breach of standard of care, breach of fiduciary duty, negligence, malicious abuse of process, violation of G.L. c. 93A, intentional infliction of emotional distress, unintentional infliction of emotional distress, and negligent supervision.
On January 23, 2015, the plaintiff filed a motion for partial summary judgment. On March 24, 2015, the defendants filed a motion to dismiss the plaintiff's complaint for his failure to comply with the expert witness order. A hearing on both motions was held on May 4, 2015. At that time, more than eight months passed since the September 2, 2014, expert witness order was issued; the plaintiff did not identify an expert witness and declined to do so at the hearing.
The judge denied the plaintiff's motion for partial summary judgment and granted summary judgment to the defendants on the plaintiff's counts for malicious abuse of process and violation of G .L. c. 93A. The judge allowed the defendants' motion to dismiss the remaining counts, and judgment entered accordingly. The plaintiff appealed.
In his order, the judge dismissed all the malpractice counts including counts 1 and 2. However, apparently though a clerical error, the judgment did not list those counts. Where the judge's memorandum and order lists those counts and both parties treat the judgment as final, there is no reason for this court to do otherwise.
Notwithstanding his claim that the judge abused his discretion in dismissing seventeen counts of the complaint, the plaintiff failed to include the complaint in the record appendix. Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). As a pro se litigant, he is held to the same standard as a litigant represented by counsel. Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996). The defendants' inclusion of the plaintiff's complaint in the supplemental appendix makes our review possible.
The plaintiff claims that the judge erred in requiring him to identify an expert for his claims that were not based on malpractice. We disagree. First, in his memorandum dated May 2, 2014, in the section entitled “Remaining issues to be decided by the Court,” the plaintiff identifies only his “claims of malpractice.” Second, at the September 2, 2014, hearing, the plaintiff identified only the abuse of process and c. 93A counts as counts that were not legal malpractice counts, and told the judge that he would move for summary judgment on these counts, which he later did.
In fact, at one point the plaintiff appeared to limit his case solely to those counts. In response to the plaintiff's statement that he wanted to file a motion for summary judgment, the judge stated: “Well, if you're saying that you're not really—you don't really have malpractice claims, but you have a 93A claim and an abuse of process claim and that's all you're going forward on and you want to do it on summary judgment, certainly you can serve Mr. Kenney, and we'll go down that road. And there won't be any malpractice, as such, if that's your view.” The plaintiff responded, “That was my intent, Your Honor.”
The plaintiff is bound by the legal position he took below, which is that except for the c. 93A and abuse of process counts, the remaining counts were counts for legal malpractice. See Bercume v.. Bercume, 428 Mass. 635, 640 (1999) ; Atlas Tack Corp. v. DiMasi, 37 Mass.App.Ct. 66, 70 (1994). At any rate, except for the abuse of process and c. 93A counts addressed by summary judgment, the other counts, no matter how styled, arose out of defendants' representation of the plaintiff and were, in fact, legal malpractice counts.
The plaintiff also claims that the judge's order that he identify his expert witness, issued before the discovery deadline, was premature. We disagree. The plaintiff was first ordered to identify an expert at the September 2, 2014, hearing. At that time, he agreed to identify an expert and did not argue that an order to do so was premature. Rather, he requested ninety days to secure an expert and provide an expert report. The judge gave the plaintiff until December 5, 2014, two days after the December 3, 2014, discovery deadline, to identify an expert.
At that hearing, the judge stated, “I presume from what you're saying [it] will require you to find an expert.” The plaintiff responded, “Correct, your Honor.” When the judge stated, “[T]hat requires an expert,” the plaintiff responded, “Okay.”
Moreover, the judge allowed the plaintiff's subsequent motion to extend the expert report filing date, extending it to February 13, 2015. The plaintiff's continued failure to identify an expert resulted in the defendants' filing of a motion to dismiss. A hearing was held on May 4, 2015. More than eight months passed from the September 2, 2014, order to the time of the May 4, 2015, hearing, and more than five months passed from the December 3, 2014, discovery deadline to the May 4, 2015, hearing. The plaintiff never filed an expert report, nor did he ever identify his expert. The judge's order to the plaintiff to identify his expert two days after the discovery deadline was not premature.
While the plaintiff argues that he had insufficient opportunity to conduct discovery, the docket does not reveal any discovery motions or motions to compel filed by the plaintiff after the passing of the December 3, 2014, discovery deadline.
The plaintiff further claims that the judge's dismissal of the malpractice counts based on his failure to identify an expert constituted an abuse of discretion. We disagree. We review the allowance of the defendants' motion to dismiss de novo. Galiastro v. Mortgage Electronic Registration Sys., 467 Mass. 160, 164 (2014).
“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, unless the alleged malpractice is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence.” Coastal Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass.App.Ct. 55, 60 (2004) (quotations omitted; citations omitted). Here, based on our review of the record, including the twenty-six-page, single-spaced, 172–paragraph complaint, the alleged malpractice does not appear to be gross and obvious. Pongonis v. Saab, 396 Mass. 1005, 1005 (1985). In the circumstances, the plaintiff would be unable to prove his case without expert testimony.
Pursuant to Mass.R.Civ.P. 37(b)(2)(C), as amended, 390 Mass. 1208 (1984), sanctions are permitted for violation of a discovery order including the sanction of dismissal. Indeed, Mass.R.Civ.P. 41(b)(2), 365 Mass. 804 (1974), provides, in part: “On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court.” Here, despite the passage of more than eight months between the September 2, 2014, order and the May 4, 2015, hearing on the defendants' motion to dismiss, the plaintiff's earlier agreement to identify an expert, and the allowance of his request for an extension, the plaintiff failed to name an expert.
In addition, at the May 4, 2015, hearing, the plaintiff stated that he was “declining to follow the order” with the understanding of the consequences of this refusal. Where the judge's order that the plaintiff identify an expert without whom his case could not proceed was reasonable and the plaintiff repeatedly failed to comply with that order, the judge did not abuse his discretion in allowing the defendants' motion to dismiss. See Atlas Tack Corp. v. Donabed, 47 Mass.App.Ct. 221, 224–225 (1999) (Mass.R.Civ.P.37 [b] [2] ); Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45 Mass.App.Ct. 738, 740–741 (1998) (Mass.R.Civ.P.41 [b][2] ).
We have carefully considered each of the remaining arguments presented in the plaintiff's brief. To the extent that any particular claim has not been specifically addressed herein, we have found it to be without merit. See Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004).
Judgment affirmed.