Opinion
No. 15–P–1489.
10-11-2016
Mohamad FAHD v. MARCUS, ERRICO, EMMER & BROOKS, P.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mohamad Fahd, appeals from a Superior Court judgment dismissing his complaint alleging legal malpractice. He claims that dismissal was improper because the defendant law firm, Marcus, Errico, Emmer & Brooks, P.C. (MEEB), owed him a duty of care and because his complaint should be viewed as a legally sufficient class action. We affirm.
The plaintiff also claims that his complaint was filed within the relevant statute of limitations.
Background. This matter arises out of two lawsuits between the plaintiff and the board of trustees of the Oak Hollow Condominium Trust (the board). In both actions, one filed in the Land Court and one filed in the District Court, MEEB represented the board. The plaintiff was the adverse party in both actions.
On or about March 17, 2015, the plaintiff brought the present action against MEEB, which purports to be a claim for “voluntary legal malpractice.” The plaintiff's complaint does not contend that MEEB at any time represented him or otherwise provided him any legal advice. MEEB moved pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), to dismiss the plaintiff's complaint. A Superior Court judge allowed the motion to dismiss, concluding, inter alia, that:
“[B]ecause the defendant law firm never represented the plaintiff, the defendant owed no duty of care to the plaintiff and, therefore, a legal malpractice claim cannot lie.... Moreover, the action cannot survive as a derivative action because the plaintiff has not complied with the requirements of Rule 23.1 of the Rules of Civil Procedure. Finally, I find that the complaint was not filed within the applicable statute of limitations.”
Judgment for MEEB was entered accordingly. The plaintiff now appeals therefrom.
Discussion. Apart from briefly referencing various rules of civil procedure, the plaintiff's brief does not cite to any case law, statutes, or other legal authority. The plaintiff's arguments do not rise to the level of sufficient appellate argument, and accordingly are deemed waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Tobin v. Commissioner of Banks, 377 Mass. 909, 909 (1979). See also Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997) (pro se parties held to same standard as those represented by counsel).
Even assuming, arguendo, that the plaintiff's arguments rise to the level of appropriate appellate argument, his claims are without merit. Contrary to the plaintiff's contention, the complaint does nothing more than raise one conclusory reference to a “claimed fiduciary duty.” The plaintiff does not allege that MEEB owed him a duty of care, a prerequisite to a claim of legal malpractice. See generally Spinner v. Nutt, 417 Mass. 549, 552 (1994). Furthermore, we will not impose a duty where the plaintiff was the adverse party in the prior underlying lower court proceedings. See Bartle v. Berry, 80 Mass.App. Ct 372, 378 (2011), quoting from Lamare v. Basbanes, 418 Mass. 274, 276 (1994) (“court will not impose a duty of reasonable care on an attorney if such an independent duty would potentially conflict with the duty the attorney owes to his or her client”) Moreover, the plaintiff did not allege that MEEB knew or had reason to know that he was purportedly relying on its services. See Bartle, supra. In such circumstances, a claim for legal malpractice does not exist.
The plaintiff's claim that his complaint can be viewed or sustained as a class action is similarly without merit. The plaintiff does not allege in his complaint any of the fundamental prerequisites of a class action. See Mass.R.Civ.P. 23(a) and (b), as amended, 471 Mass. 1491 (2015). Absent such allegations, the class action claim must be dismissed. Furthermore, the plaintiff did not raise the claim in the Superior Court that his complaint should be viewed as a class action. Having not raised the issue below, he cannot raise it for the first time on appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). The Superior Court judge properly granted MEEB's motion to dismiss.
Rule 23 provides, in relevant part:
“(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
“(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”
To the extent that we have not specifically addressed subsidiary arguments in the plaintiff's brief, they have not been overlooked. “We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).