Opinion
20-P-1046
04-08-2022
Richard PARELES v. Nancy Sue KELLER & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Richard Pareles, is an attorney. Defendant Jean Lee is the plaintiff's former client. The plaintiff brought suit in the Superior Court against Lee; the attorneys who succeeded the plaintiff in representing her, Nancy Sue Keller and Harold Jacobi; and the law firm Jacobi & Chamberlain LLC (collectively, the attorney defendants). The defendants moved to dismiss those claims under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). A judge allowed the defendants’ motion, and the plaintiff appealed. Concluding that several of the plaintiff's claims were time-barred, and that the plaintiff's complaint failed to make out the remainder of the claims, we affirm.
Background. We summarize the relevant facts, taking as true the allegations of the complaint and the inferences drawn from them, and reserving some facts for later discussion. See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). We also consider information appearing in the record of the case and documents attached to or on which the plaintiff relied in framing the complaint. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 632 n.14 (2008).
In 2007, Lee retained the plaintiff to represent her in an equitable suit in the Probate and Family Court (underlying suit) seeking to establish that she and her putative husband were not married, paving the way for her to remove him from the deed to the home that the couple owned as tenants in the entirety. The plaintiff alleges that Lee in fact knew that she was validly married but misled him into believing otherwise. A judge ultimately determined that Lee and the man were married, and Lee's complaint was dismissed. Thereafter, Lee retained the attorney defendants to represent her in an appeal, which was unsuccessful.
In October 2009, the plaintiff filed suit in District Court to recover $5,807 in unpaid legal fees from Lee based on his representation in the underlying suit. The action was dismissed when the plaintiff failed to make timely service on the defendant. See Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988). Based on the attorney defendants’ representation that they intended to counterclaim against him on Lee's behalf for an amount over the $25,000 procedural limit in the District Court, the plaintiff refiled his claim in Superior Court. The action was again dismissed, this time because the damages did not exceed $25,000, see G. L. c. 212, §§ 3 and 3A (b ), and was transferred back to the District Court. Following that transfer, on June 27, 2012, the attorney defendants filed counterclaims against the plaintiff on behalf of Lee for legal malpractice, abuse of process, frivolous claim, breach of contract, unjust enrichment, and quantum meruit (collectively, the counterclaims), and sought $333,000 in damages (half of the value of Lee's home from the underlying suit).
The case was tried before a jury. On May 20, 2015, the jury returned a verdict in favor of the plaintiff on his claim for unpaid legal fees, awarding him $5,806, and in favor of Lee on two of her counterclaims (breach of contract and quantum meruit). In response to a posttrial motion for sanctions against the plaintiff pursuant to G. L. c. 231, § 6F, the trial judge reduced the plaintiff's award by $1,700 and reduced the amount of prejudgment interest due to the plaintiff.
The jury did not award damages on the counterclaims.
On March 2, 2016, Jacobi tendered $4,791.96 to the plaintiff as "full and final payment of the final [j]udgment"; in a cover letter (March 2, 2016 letter) Jacobi told the plaintiff that "[i]f [he] proceed[ed] to seek a reconsideration of the judge's order [for sanctions] and [caused the defendants] to expend time, energy and effort to appear and contest [the] motion, [the defendants would] seek attorney's fees and the court's advice as to any sanctions that would be warranted." Nevertheless, the plaintiff sought review by the Appellate Division of the District Court, which vacated the judge's order for sanctions on the basis that G. L. c. 231, § 6F was inapplicable to the District Court. The final amount awarded to the plaintiff, on November 7, 2017, was $10,132.25. This judgment has yet to be satisfied beyond the $4,791.96 enclosed with Jacobi's March 2, 2016 letter.
The defendants did not appear in the plaintiff's appeal to the Appellate Division.
The plaintiff filed this action on March 4, 2019, asserting claims against Lee and the attorney defendants for malicious prosecution (count I), malicious abuse of process (count II), conspiracy (count III) and intentional infliction of emotional distress (count VI). Additionally, the plaintiff asserted claims of misrepresentation (count IV) and defamation (count V) against the attorney defendants. On February 14, 2020, the plaintiff filed an amended complaint (second amended complaint) in which he added claims for violations of G. L. c. 93A (count VII) against the attorney defendants, and for declaratory judgment (count VIII). The defendants successfully moved to dismiss the second amended complaint, and this appeal followed.
Discussion. We review the grant of a motion to dismiss de novo. Polay v. McMahon, 468 Mass. 379, 382 (2014). In so doing, "[w]e accept as true the facts alleged in the plaintiffs’ 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 determine whether the plaintiff has "stat[ed] a claim on which relief can be granted under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974)." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We are mindful that "a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions." Iannacchino, 451 Mass. at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). The plaintiff is charged with making "factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief,’ " to demonstrate that the complaint "possess[es] enough heft to ‘sho[w] that the pleader is entitled to relief.’ " Iannacchino, supra, quoting Bell Atl. Corp., supra at 557. We agree that each of the claims here was either filed beyond the applicable statute of limitations or failed adequately to state a claim, and that all were properly dismissed.
1. Time-barred claims. A cause of action accrues, and the statute of limitations begins to run, when an injury is sustained or when the plaintiff discovers, or reasonably should have discovered, the harm caused by the defendant's conduct. White v. Peabody Constr. Co., 386 Mass. 121, 129 (1982). See Lindsay v. Romano, 427 Mass. 771, 774 (1998). The parties do not dispute that a three-year statute of limitations applies to each of the plaintiff's tort claims. See G. L. c. 260, § 2A. Applying these principles, we agree with the defendants that the plaintiff's claims for abuse of process, conspiracy, misrepresentation, defamation, and, in part, (as we discuss in more detail, infra ) for intentional infliction of emotional distress were properly dismissed as time-barred because each claim was based on conduct alleged to have occurred more than three years before the plaintiff's March 4, 2019 complaint in this case.
Specifically, the plaintiff's claims for abuse of process, conspiracy, and misrepresentation were each based on the attorney defendants filing the allegedly meritless 2012 counterclaims and encouraging Lee's pursuit of them, and on Lee's participation in the scheme by putting forward an equitable claim she knew to be specious.
The plaintiff's claim for defamation and a portion of his claim for intentional infliction of emotional distress are based on Attorney Keller's conduct in the District Court action at some time before 2014 -- in particular, Keller's characterization of the plaintiff as "mentally ill and incompetent" and her misrepresentation to the judge that the plaintiff had failed to provide her with certain discovery, which caused the judge to become angry with the plaintiff. Those acts took place in the pretrial stages of the District Court litigation, and so necessarily occurred prior to the verdict on May 20, 2015. Given that the plaintiff's complaint in this action was not filed until 2019, each of these claims was barred by the applicable three-year statute of limitations.
2. Intentional infliction of emotional distress. Of the plaintiff's tort claims, only so much of his claim for intentional infliction of emotional distress as was based on the March 2, 2016 letter from Jacobi to the plaintiff falls within the three-year statute of limitations. Nonetheless, the claim was properly dismissed.
"The standard for making a claim of intentional infliction of emotional distress is very high." Polay, 468 Mass. at 385, citing Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996). Intentional infliction of emotional distress requires the plaintiff to show "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct ...; (2) that the conduct was ‘extreme and outrageous,’ ...; (3) that the actions of the defendant were the cause of the plaintiff's distress ...; and (4) that the emotional distress sustained by the plaintiff was ‘severe’ " (citation omitted). Howell v. Enterprise Publ. Co., 455 Mass. 641, 672 (2010).
The March 2, 2016 letter from Jacobi that "[the defendants would] seek attorney's fees and the court's advice as to any sanctions that would be warranted" if the plaintiff challenged the judge's order reducing his damages award in the underlying suit was, at most, a "threat" to seek sanctions. We need not decide whether sending that letter amounted to an ethical violation; even assuming that it did, the plaintiff has not cited any case to show that such conduct could be considered "beyond all possible bounds of decency" and "utterly intolerable in a civilized community" (citation omitted), Howell, 455 Mass. at 672, nor are we aware of such precedent. Accordingly, even assuming that the March 2, 2016 letter caused the degree of distress the plaintiff alleged that he suffered, the complaint failed as a matter of law to adequately allege the degree of extreme and outrageous conduct by the defendants required to make out his claim. As a result, we conclude that the claim for intentional infliction of emotional distress was properly dismissed. See Okoli v. Okoli, 81 Mass. App. Ct. 381, 389 & n.8 (2012).
3. Malicious prosecution. The plaintiff's claim for malicious prosecution was dismissed for his inability to demonstrate "that the [District Court] action terminated in his favor" given that Lee was successful in several of her counterclaims in the District Court. Chervin v. Travelers Ins. Co., 448 Mass. 95, 103 (2006). Lee's success on two of her counterclaims precludes the plaintiff from making a claim for malicious prosecution.
"To prevail on a claim for malicious prosecution, a plaintiff must establish that he was damaged because the defendant commenced the original action without probable cause and with malice, and that the original action terminated in his favor" (citation omitted). Chervin, 448 Mass. at 103. Here, although the jury found for the plaintiff on his claims against Lee for unpaid attorney's fees, they found against the plaintiff and in favor of Lee on two of Lee's counterclaims in the same action. See Browning-Ferris Indus., Inc. v. Casella Waste Mgt. of Mass., Inc., 79 Mass. App. Ct. 300, 315 (2011) ("divided outcome" of litigation "precludes either side from the usual status of ‘prevailing party’ "). Cf. Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 219 (2018) (party "prevailed" where its position on most significant issues was accepted and where ancillary issues "constitute[d] only a small portion of th[e] case"). Lee's success on her claims forecloses both the plaintiff's argument that the action terminated in his favor and his claim that Lee's counterclaims were maliciously prosecuted.
4. G. L. c. 93A claim. Finally, we disagree with the plaintiff that his G. L. c. 93A claim was improperly dismissed, or that the defendant's conduct involved engagement with trade or commerce. "[F]or G. L. c. 93A, § 11, to apply to a given dispute, there must be ‘a commercial transaction between a person engaged in trade or commerce and another person engaged in trade or commerce, such that they were acting in a "business context." ’ " Governo Law Firm LLC v. Bergeron, 487 Mass. 188, 194 (2021), quoting Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 563 (2008). "[T]he mere filing of litigation does not of itself constitute ‘trade or commerce’ " (citation omitted), First Enters., Ltd. v. Cooper, 425 Mass. 344, 347 (1997), and an attorney is not generally liable under the statute for conduct in the course of the attorney's litigation against his client's opponent. Here, "[n]o commercial relationship ever existed between the parties; their only contact occurred in the context of this litigation." Id., quoting Lantner v. Carson, 374 Mass. 606, 611 (1978). Accordingly, dismissal of the claim was proper.
Conclusion. The judgment is affirmed. The parties’ requests for attorney's costs and fees are denied.
In light of our decision, we take no action on the plaintiff's request that we deny Lee's motion to dismiss. We accept the plaintiff's concession that his claim for declaratory judgment is moot, and do not consider that claim.
The appellees’ requests for attorney's fees under G. L. c. 211A, § 15 are likewise denied.
Judgment affirmed.