Opinion
No. 11–P–1428.
2012-07-26
John A. TAYLOR v. Michael L. KETTENBACH & others.
By the Court (SIKORA, WOLOHOJIAN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
During the course of paternity proceedings initiated by John A. Taylor, an attorney, against his former girlfriend, Susanne Swartwout, private investigator Joseph McCain turned over documents intended to damage Taylor.
The Probate and Family Court judge found the allegations against Taylor incredible, declined to consider the materials, and in September, 2001, awarded full custody to Taylor. In 2003, Taylor brought a tort action in Federal court against McCain, Swartwout, and several of her attorneys claiming, as herein relevant, that they stole a client file from his New Hampshire home and manufactured fraudulent documents. Having reformulated his theory, Taylor commenced this action on August 29, 2008, claiming that the source of McCain's information was his own closed client file at the law firm of Foley, Hoag LLP (FH).
Three of the documents provided by McCain in that litigation appear relevant to this case. The first was a letter dated May 18, 1990, from Taylor to Anthony Traini, a member of the defense team Taylor assembled to represent his long-term client, William F. Terry III, a major drug smuggler (Traini letter). The other two documents were an interview report of Stewart Henry, a former Secret Service agent, referred to as “investigator 129,” and Terry's unsigned statement, both dated February 4, 1998, alleging drug use and criminal activities by Taylor (Terry documents).
Between 1992 and 1994, Taylor was represented by FH (known at the time as Foley, Hoag & Eliot) in connection with a grand jury investigation of money laundering activities by certain prominent criminal defense attorneys, including Anthony Traini and Anthony Pelusi. Nicholas Theodorou was Taylor's FH attorney of record. Terry, who entered the Federal witness protection program in 1991, provided the information that led to that grand jury investigation and to the indictment and conviction of several individuals. One of those individuals, Taylor's sister Lee, was represented by Pelusi. No charges were ever brought against Taylor or Pelusi. Pelusi was also one of the attorneys who represented the winning side in the Demoulas litigation. Gary C. Crossen, the long-term attorney of Michael L. and Frances (Demoulas) Kettenbach, was on the losing side. In Taylor's 2003 Federal tort action, Crossen, who joined Rubin & Rudman LLP in 2001 after twelve years at FH, represented Michael L. Kettenbach and David J. Prum, the keeper of the records of McCain's investigative firm (JEMIS).
Ruling on the defendants' motions for summary judgment, the Superior Court judge concluded that all but two of Taylor's claims were time barred and that the remaining two G.L. c. 93A claims failed for lack of proof that he was engaged in trade or commerce or had suffered any compensable damages. We affirm.
Taylor brought claims of fraud, conspiracy, infliction of emotional distress, and violation of G.L. c. 93A against Kettenbach, individually and as a business entity. He brought claims of breach of contract and fiduciary duty, fraud, abuse of process, conspiracy, infliction of emotional distress, and violation of c. 93A against Crossen and FH. He brought claims of breach of fiduciary duty, fraud, abuse of process, conspiracy, infliction of emotional distress, and violation of c. 93A against Crossen and Rubin & Rudman LLP.
Our review of the summary judgment is de novo. See Scott v. Encore Images, Inc., 80 Mass.App.Ct. 661, 665–666 (2011). We review the record to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). We may affirm a judgment for any ground supporting it. See ibid.
Taylor had no reasonable expectation of proving the crux of his case concerning the improper release of his confidential information. With appropriate Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002), materials, the defendants met their summary judgment burden of establishing the following facts. In early 1998, Michael L. Kettenbach authorized and paid for an investigation of Anthony Pelusi by McCain and JEMIS, McCain's investigative firm, Stewart Henry, see note 3, supra, and Paul Kelly, a FH partner and the former Assistant United States Attorney (AUSA) who prosecuted Terry, interviewed Terry in Hawaii on February 4, 1998. At that time, Terry gave them a copy of the Traini letter he had obtained from Attorney Traini. On the airplane ride back to Boston, Henry and Kelly drafted the Terry documents. After meeting with Henry, Kelly, McCain, and Gary C. Crossen, see nn. 3 and 4, supra, Kettenbach decided that the Terry documents would serve no useful purpose in the Demoulas litigation. Copies of the Traini letter and the Terry documents were placed in McCain's records. With Kettenbach's permission and against Crossen's advice, McCain turned over copies of these documents to Swartwout and her attorneys for use in the Probate and Family Court proceedings.
Taylor offered nothing to place these facts into legitimate dispute. Taylor's speculations and unsupported supposition in his summary judgment materials about the defendants' “cover story,” the concocted live Terry interview, and the made-up statements attributed to his friend Terry were inadequate to raise any triable issue of material fact. See Bardige v. Performance Specialists, Inc., 74 Mass.App.Ct. 99, 103 (2009) (“When a motion for summary judgment is made and supported ..., an adverse party may not rest upon the mere allegations or denials in his pleadings, but his response, by affidavits or as otherwise provided in [rule 56], must set forth specific facts showing that there is a genuine issue for trial”), quoting from Godbout v. Cousens, 396 Mass. 254, 261 (1985).
Turning to Taylor's specific claims, his tort claims against Kettenbach are time barred. The record establishes that these accrued no later than October 15, 2004, when Taylor contacted Kettenbach and revealed that Taylor knew Kettenbach had directed McCain to give the documents to Swartwout. The three-year statute of limitations on these claims, G.L. c. 260, § 2A, had run before Taylor filed his complaint on August 29, 2008.
Taylor's claims against Crossen and FH arising from the misuse of his client information were also time barred. Taylor was put on notice at McCain's March 2, 2001, deposition of the damaging documents and of Kelly's connection to them. Taylor reasonably could have discovered that Kelly, known to Taylor from his AUSA days, was a partner at FH in 1998. Even the six-year statute of limitations on the contract claim, G.L. c. 260, § 2, had expired by the time Taylor filed his complaint.
The facts of record were inadequate to support tolling under the fraudulent concealment doctrine. To avail himself of that doctrine, Taylor “must set forth facts from which a jury reasonably could find that a fiduciary relationship existed between himself and [Crossen or FH], and that [Crossen or FH] breached [a] fiduciary duty to disclose to him adequate information that would have apprised him” of their participation in the Demoulas litigation or the 2003 Federal case. Patos v. First Albany Corp., 433 Mass. 323, 329 (2001). Beyond Taylor's bare allegations, there was no evidence that Crossen or FH concealed any involvement in these matters.
See Salvas v. Wal–Mart Stores, Inc., 452 Mass. 337, 376 (2008). There was no evidence beyond Taylor's contentions that Crossen represented Taylor or owed him any fiduciary duty. The allegation that Kelly accessed Taylor's file at FH, without more, is insufficient to prove that FH breached a fiduciary duty to Taylor. Taylor also offered no admissible evidence that any FH attorney represented or assisted Swartwout in the Probate and Family Court proceedings.
Even if Kelly's November 3, 2005, response to Taylor's G.L. c. 93A demand letter misled Taylor, it was written after he left FH and thus cannot bind the firm. For reasons unexplained on this record, Kelly was never served or deposed by Taylor in this litigation. See n. 2, supra.
Even if these claims were not time barred, they failed as matter of law for lack of proof presenting any genuine issue for trial. Taylor has no proof to support his contention that Crossen “directed” Kelly to access Taylor's closed client file. He admitted that he has no evidence to support his theory that any FH defendant turned over the Traini letter obtained from his client file to McCain or to Swartwout. Taylor's disbelief of the defendants' denials was not evidence of the contrary proposition. Taylor furthermore admitted that the Traini letter that migrated to Swartwout could have originated from three possible sources. He also volunteered that he did not know who created the Terry documents, which were never in his FH client file.
Finally, the malpractice and tort claims against Crossen and Rubin & Rudman LLP (RR) arising from Crossen's breach of his ethical duties were likewise time barred. Taylor learned of Crossen and RR's involvement in the 2003 Federal tort action no later than Crossen's letter to him dated November 4, 2004. In a letter dated May 13, 2005, Taylor complained that Crossen and RR's representation of David J. Prum, an investigator, and Kettenbach was a conflict of interest. When Crossen ignored the objection, Taylor failed to file a motion to disqualify him and RR. Taylor then filed his complaint more than three years later.
Unsupported by citation to any authority, Taylor's argument concerning his remaining G.L. c. 93A claims against Kettenbach, Crossen, and RR fell below applicable appellate standards and is deemed waived. See Morgan v. Laboratory Corp. of America, 65 Mass.App.Ct. 816, 821 n. 6 (2006). Were we to reach the merits, we would conclude that Taylor's claims failed for lack of proof of any business relationship or actionable damages.
Judgment affirmed.