Opinion
11-P-1472
12-07-2012
MALCOLM KASPARIAN, JR., v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Malcolm Kasparian Jr., appeals from the dismissal of a multi-party lawsuit prosecuted by him against an array of municipal and State entities, private companies, and various individuals. We affirm. We consider it unnecessary here to repeat in detail the comprehensive recitation of findings and legal analysis set forth in the motion judge's careful memorandum of decision,
which we adopt in all material respects. The myriad and overlapping procedural and substantive defects in Kasparian's case, clearly outlined by the motion judge in his decision, remain unaddressed by Kasparian in his submissions to this court.
We note as examples that a legal malpractice action cannot be maintained in the absence of an attorney-client relationship, that the presiding officer of the Department of Environmental Protection is immune from suit for decisions made as a result of an adjudicatory hearing within the jurisdiction granted by 310 Code Mass. Regs. § 1.01(1)(a) (2004), see LaLonde v. Eissner, 405 Mass. 207, 210-211 (1989), that the department's draftsman did not represent himself to be an engineer at any time contrary to Kasparian's assertions, that the attempt to disqualify attorney Griffin appears to be a tactical maneuver unsupported by law, and that the judge was not legally obligated to convert a motion to dismiss on the pleadings, Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), into a motion for summary judgment. We exercise our discretion to award attorney's fees and the costs incurred in the litigation of this appeal. We award such fees and costs only to the individual defendants (and not the governmental or private entities) and only to the extent that there were personal expenditures or personal liabilities incurred which have not been reimbursed and will not be reimbursed. Any party seeking such attorney's fees and costs shall file sworn representation to that effect together with a petition for appellate attorney's fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the date of the rescript. Kasparian may respond to the petition within twenty days of said filing.
Judgment affirmed.
By the Court (Kantrowitz, Berry & Grainger, JJ.),