Opinion
21-P-123
05-24-2022
LAUREN G. KLEIN v. MICHELA DEVOTI
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Attorney Lauren Klein (Klein), represented the defendant, Michela Devoti (Devoti), in a divorce action in the Probate and Family Court. Following judgment in the divorce action, Klein withdrew from further representation and filed the present action in the Superior Court to determine the amount of an attorney's lien pursuant to G. L. c. 221, § 50. Devoti repeatedly challenged the jurisdiction of the Superior Court and was eventually sanctioned twice before a Superior Court judge determined the amount owed to Klein under the attorney's lien. On appeal, Devoti challenges, inter alia, the Superior Court's subject matter jurisdiction, the imposition of sanctions, and the dismissal of malpractice counterclaims. We affirm.
Background.
1. Divorce proceeding.
This litigation originates from Klein's representation of Devoti in a divorce proceeding before the Probate and Family Court that commenced in May of 2015. Following entry of the judgment of divorce nisi, Klein gave notice of her withdrawal as counsel and moved to enforce her attorney's lien pursuant to G. L. c. 221, § 50. The Probate and Family Court judge (probate judge) acknowledged the existence of the lien but concluded that "[t]he amount of this lien is not hereby determined, but must be determined by a proceeding brought in another Court, or by agreement of the parties."
Following the denial of a motion for new trial in the divorce action, Devoti filed a notice of appeal to this Court on August 16, 2016. On July 20, 2018, this Court issued an opinion reversing the denial of the motion for new trial and remanding the matter to the Probate and Family Court for further proceedings. See Bonaparte v. Devoti, 93 Mass.App.Ct. 603, 608 (2018). The Probate and Family Court held further proceedings and, in September 2021, ordered the husband to pay Devoti $79,400 less the funds due Klein under the instant attorney's lien.
At issue was the denial of Devoti's request to testify by audio or visual means. See Bonaparte v. Devoti, 93 Mass.App.Ct. 603, 608 (2018) .
2. Attorney's lien proceeding.
During the pendency of the appellate proceedings in the divorce matter -- in which Klein was no longer involved -- Klein commenced the present action in the Superior Court on December 14, 2016, to "determine the amount of [her] [a]ttorney's [l]ien" in accordance with the probate judge's order. We will not attempt to provide a complete summary of the procedural history, which includes over 140 docket entries. Instead, we set forth the pertinent procedural history necessary to discuss the issues on appeal.
a. Motions to dismiss.
In February 2017, Devoti moved to dismiss the present action on a litany of grounds including lack of personal jurisdiction and improper venue (first motion to dismiss). A Superior Court judge (first motion judge) denied the motion after a hearing.
Devoti challenged personal jurisdiction and venue in the Superior Court and questioned the judicial economy of determining the amount of an attorney's lien without enforcing it. Although Devoti did not explicitly challenge the Superior Court's subject matter jurisdiction, she did so implicitly by challenging the validity of the probate judge's order directing Klein to commence the action in another court. The first motion judge concluded that this action was properly before the Superior Court regardless of the validity of the probate judge's order, finding that "since the plaintiff has filed suit in the Superior Court as required by G. L. c. 221, § 50, any jurisdictional defect that may have existed has been cured."
In October 2017, Devoti again moved to dismiss (second motion to dismiss), this time explicitly arguing that the Superior Court lacked subject matter jurisdiction. Another Superior Court judge (second motion judge) denied the motion. Devoti's motion for reconsideration and petition for leave to file an interlocutory appeal were also denied. Devoti then filed a "motion for clarification of the Superior Court's subject matter jurisdiction." Another motion judge (third motion judge) denied the motion, sanctioned Devoti for abuse of process, and denied Devoti's subsequent motion for reconsideration because Devoti's "vexatious litigation warrant[ed] the award."
The second motion judge concluded that "[t]he defendant raised the issue of subject matter jurisdiction in a previous motion to dismiss. . . . The [first motion judge] specifically rejected the defendant's jurisdictional challenge." Devoti takes issue with the second judge's statement. We need not decide the correctness of the second motion judge's statement that Devoti's subject matter jurisdiction challenge had been "specifically rejected," see note 2, supra, where the second motion judge correctly determined that the Superior Court had subject matter jurisdiction because Klein had filed suit in the Superior Court as required by G. L. c. 221, § 50. See discission infra.
In January 2019, Devoti filed a "renewed motion to dismiss" (third motion to dismiss). She argued, inter alia, that after the underlying divorce action had been remanded "Klein presently [had] no justiciable lien." After a hearing, a fourth motion judge denied the motion.
b. Further sanctions and default.
Devoti continued to contest numerous substantive and procedural issues, eventually leading to further sanctions against Devoti and a default judgment for Klein. In September 2019, a fifth motion judge found Devoti's responses to Klein's request for admissions improper and sanctioned Devoti for "behavior throughout this litigation that appears to be intended to delay and to impose unnecessary burdens on opposing counsel and this Court."Devoti's failure to pay the sanctions precipitated a default judgment for Klein based on "the manner in which Devoti . . . conducted this litigation."
Klein filed a request for admissions in March 2019. In May 2019, a Superior Court judge found Devoti's responses lacking and ordered revised responses. Devoti's motion for reconsideration of that order was denied. Believing that Devoti's revised responses still did not conform with Mass. R. Civ. P. 36(a), 365 Mass. 795 (1974), Klein communicated that nonconformance to Devoti. Devoti declined to address the deficiencies articulated by Klein. Ultimately, the fifth motion judge found that Devoti "has been given ample time -- and has received guidance from at least one other judge -- to prepare appropriate responses, and has not."
The initial sanction order required Devoti to pay within ten days. Devoti's motion to stay the sanction was denied but the fifth motion judge provided additional time for Devoti to pay.
During this period, in October 2019, the fifth motion judge also allowed Klein's motion for summary judgment dismissing malpractice counterclaims brought by Devoti.
c. Determination of attorney's lien amount.
Yet another judge (trial judge) held five days of remote damages assessment hearings. Ultimately, the trial judge issued comprehensive findings of fact and rulings of law ordering Devoti to pay Klein $36,891.60 in attorney's fees for services rendered in connection with the divorce action and $3,990 in sanctions pursuant to the fifth motion judge's orders. Devoti's postjudgment motions were denied. On appeal, Devoti challenges, inter alia, the Superior Court's subject matter jurisdiction, the imposition of sanctions, and the dismissal of her malpractice counterclaims.
The trial occurred over Zoom videoconference at Devoti's request.
Discussion.
1. Motions to dismiss.
Devoti appeals the denial of the second and third motions to dismiss. First, Devoti argues that denial of the second motion to dismiss was error because her "August 2016 notice of appeal renewed the pendency of her divorce such that in December 2016 the superior court lacked [subject matter] jurisdiction to determine Klein's lien." This argument is unavailing.
General Laws c. 221, § 50, provides that an "attorney who appears for a client . . . shall have a lien for [her] reasonable fees and expenses upon [her] client's cause of action, counterclaim or claim, upon the judgment, decree or other order in [her] client's favor entered or made in such proceeding, and upon the proceeds derived therefrom." "Upon request of . . . the attorney, the court in which the proceeding is pending or, if the proceeding is not pending in a court, the superior court, may determine and enforce the lien[.]" Id. The question raised here is whether the proceeding is pending for purposes of G. L. c. 221, § 50, during the appellate proceedings. We conclude, in accordance with Neuwirth v. Neuwirth, 87 Mass.App.Ct. 640, 641 (2015), that it is not.
The Neuwirth court considered the Probate and Family Court's jurisdiction over the enforcement of an attorney's lien under § 50 following the entry of judgment in an underlying divorce action. The court held that "[e]nforcement of the lien is to be sought in the Superior Court after entry of judgment." Id. The court was "unpersuaded that the proceeding [was] still 'pending' during the nisi period after the judgment [was] entered in the docket and the period allowed for notice of appeal to be filed [had] begun to run." Id. at 641 n.2. We conclude that the Neuwirth holding controls in the present context. Reading § 50 otherwise would contravene the plain language of the statute or produce irrational results.
Devoti contends that "[t]he notice of appeal reopened the divorce proceeding such that as per [§ 50] the [P]robate [and Family] [C]ourt was 'the court in which the proceedings [were] pending.'" Such a reading contravenes the plain language of the statute. The statute provides jurisdiction to the court "in which the proceeding is pending." G. L. c. 221, § 50. An appeal awaiting action in the Appeals Court is generally considered pending in the Appeals Court, not the trial court from which it was appealed. See generally Linardon v. Boston Hous. Auth., 487 Mass. 1006, 1007 (2021) ("appeal ... is currently pending in the Appeals Court"). Devoti's contention that a notice of appeal somehow "reopened" the action in the Probate and Family Court is unsupported by authority and we decline to adopt it.
Devoti relies on caselaw holding that an action remains "pending" or "viable" until appeal is disposed of. See Mackenzie v. A. Engelhard & Sons Co., 266 U.S. 131, 142-143 (1924); Okoli v. Okoli, 81 Mass.App.Ct. 381, 385 (2012); Lyons v. Duncan, 81 Mass.App.Ct. 766, 771 fn.12 (2012); Keen v. Western New England College, 2 3 Mass.App.Ct. 84, 85 fn.2 (1986). None of these cases considered "pending" within the meaning of G. L. c. 221, § 50, and, therefore, they are not controlling in the present context. Further, to the extent these cases are applicable at all, they in no way suggest that an action was pending in the trial court during the pendency of the appeal period or appellate proceedings.
Alternatively, to conclude that the action was pending in the Appeals Court for purposes of § 50, giving the Appeals Court original jurisdiction over the determination and enforcement action, would lead to irrational results. The determination of the amount of the lien that is required under § 50 involves factual questions unsuited for resolution by an appellate court in the first instance. See generally Productora E Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826, 840 (1978) ("questions of fact must be resolved by the trial judge in the first instance"). We decline to read § 50 in a manner that would produce such irrational results. See Commonwealth v. Hendricks, 452 Mass. 97, 101 (2008) ("we must avoid construction of statutory language that produces irrational results" [citation omitted]). Instead, we believe that, for purposes of § 50, an action is no longer pending after the entry of judgment in the trial court and "[e]nforcement of the lien is to be sought in the Superior Court" notwithstanding the filing of a notice of appeal. Neuwirth, 87 Mass.App.Ct. at 641. Thus, Klein's action to determine the amount of the attorney's lien was properly filed in the Superior Court.
Because we conclude that the action was properly brought in the Superior Court in the first instance, we decline to address the effect, if any, of the probate judge's order directing Klein to determine the amount of the lien by way of an action in another court.
Second, Devoti contends that denial of the third motion to dismiss was error. This motion was brought after the Appeals Court vacated the underlying divorce judgment and remanded the case to the Probate and Family Court. Devoti argues that the motion should have been allowed because, after the underlying divorce action was remanded to the Probate and Family Court, "Klein's lien became inchoate for lack of proceeds to which it could attach" and, therefore, "Klein no longer had a claim upon which relief could be granted." This argument is also unavailing.
Devoti's reliance on Curly Customs, Inc. v. Pioneer Fin., 62 Mass.App.Ct. 92 (2004), is misplaced. There, the court concluded that because the attorney's client was unsuccessful in the underlying case, "no proceeds to which the lien could attach existed." Id. at 98. Here, the divorce claim was ongoing, not unsuccessful. An attorney's lien under § 50 arises by operation of statute and attaches to the "client's cause of action, counterclaim or claim" (citation omitted). Ropes & Gray LLP v. Jalbert, 454 Mass. 407, 414 (2009). While the lien also attaches to a "judgment, decree or other order in [the] client's favor entered or made in such proceeding" and further attaches to "proceeds derived therefrom," § 50 "does not require a 'judgment' in order for an attorney's lien to attach" (citations omitted) . Id. Nothing suggests that Klein's lien was somehow extinguished by remand. Instead, Klein's lien was still attached to the underlying divorce claim. Thus, nothing precluded the Superior Court from proceeding with a determination of the reasonable fees and expenses under that lien, establishing the amount of the lien that would subsequently attach to any proceeds derived from a judgment or order in Devoti's favor.
In Curly Customs, Inc., the court concluded that "the judge properly took no action" to determine the amount of an attorney's lien because, "[w]ith the case yet to be tried, the amount that the client would ultimately owe the attorney could not then be calculated." Curly Customs, Inc., 62 Mass.App.Ct. at 98 & 98 n.7. Here, where Klein's representation of Devoti had concluded, we see no error in the judge's decision to determine the amount of the "reasonable fees and expenses" owed to Klein under the lien. See G. L. c. 221, § 50.
2. Sanctions.
Devoti appeals the third motion judge's order imposing sanctions, and the denial of her motion for reconsideration. Devoti contends that the award was erroneous where she did not "violat[e] ... a rule of procedure, court order, statute or even a formal warning." We do not agree.
Devoti's assertion that "pro se Klein was not entitled to attorney's fees because no 'expenses' were caused nor was any 'actual loss' incurred" is without merit. See Robbins v. Krock, 73 Mass.App.Ct. 134, 137 (2008) ("attorney who represents herself [is entitled] to recover the same costs she would be entitled to if she had been represented by another").
"We review the judge's imposition of sanctions under the court's inherent powers for abuse of discretion." Wong v. Luu, 472 Mass. 208, 220 (2015). A judge may assess attorney's fees under the inherent powers of the court when "such sanctions [are] necessary to preserve the court's authority to accomplish justice." Id. at 218. Here, the third motion judge found that Devoti's continued re-litigation of her jurisdictional argument was "abusive of the process" and "vexatious." Where Devoti repeatedly raised her jurisdictional argument -- resulting in repetitive, futile, and costly motion practice -- we see no abuse of discretion in the motion judge's imposition of sanctions. See Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass.App.Ct. 461, 470 n.17 (2012) ("A party or counsel should not abusively employ a motion for reconsideration as ... a mere repetition of previously failed arguments"); id. at 470 ("Abuse of the reconsideration mechanism will expose the responsible party or counsel to sanctions within the discretion of the motion judge").
Devoti suggests that her actions were not vexatious where she genuinely believed her jurisdictional argument. Genuine belief in a claim, even meritorious belief in a claim, does not preclude a finding that the claim was prosecuted in a vexatious manner. See generally Fishman v. Brooks, 396 Mass. 643, 652 (1986) ("Proof of the groundlessness of an action is not an essential element of an action for abuse of process").
Devoti also appeals from the fifth motion judge's order deeming certain requests for admission admitted and sanctioning Devoti for "behavior throughout this litigation that appears to be intended to delay and to impose unnecessary burdens on opposing counsel and this Court." The precipitating event was Devoti's repeated failure to comply with the rules of discovery. See note 4, supra. Following a hearing, the fifth motion judge deemed certain requests for admissions admitted and ordered Devoti to pay $3,990 in attorney's fees. Given the continued evasiveness of Devoti's answers, we discern no error in the fifth motion judge's decision to deem the requests for admission admitted and impose sections. See Corsetti v. Stone Co., 396 Mass. 1, 26 (1985) (Rule 37 "affords a judge broad discretion to impose whatever sanctions are just in order to ensure that the discovery process operates efficiently"); Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 505 (1979) ("Collectively, . . . the instances of the defendant's lack of conscientiousness in making discovery [and delaying the orderly progress of the litigation] represent abuse to which courts ought not to be subjected") .
3. Default judgment.
Devoti contends that failure to pay the $3,990 sanction was not a proper basis for default judgment. The fifth motion judge ultimately explained, however, that failure to pay the sanction was merely the precipitating event and that default was "based more broadly on the manner in which Devoti has conducted this litigation."
After the fifth motion judge allowed the motion for default, Devoti moved to set aside the default. The judge further clarified the grounds for default in a memorandum of decision denying Devoti's motion.
"Entry ... of default judgments has to do with the management of the case and, as such, is committed to the sound discretion of the trial judge." Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass.App.Ct. 426, 429 (1986). "We do not consider that discretion abused unless its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice." Id. "The considerations to be balanced in deciding a default question for failure to make discovery are, on one hand, a concern about giving parties their day in court, and, on the other, not so blunting the rules that they may be ignored 'with impunity.'" Id. at 429-430. In light of Devoti's conduct throughout the litigation and the repeated efforts to compel Devoti to comply with the rules of discovery, see note 4, supra, we discern no abuse of discretion in the imposition of a default as a sanction. See Id. at 430 ("In isolation, the [defendant]'s failure to comply in detail with the . . . order of the Superior Court judge may seem more bumbling than malevolent, or even passively obstructionist. Taken over its twenty-month course, however, the [defendant]'s response to the plaintiff's requests for pertinent documents moved only from the reflexively negative to the grudgingly incomplete. . . . The [defendant] had treated rule 37 as a paper tiger, . . . and the . . . judge . . . was warranted in invoking the severe sanction which he did" [citations omitted]).
In denying Devoti's motion to set aside the default, the fifth motion judge recognized the following:
"This Court realizes that defaulting a party as a sanction for her conduct is a drastic measure. Particularly where a party has meritorious defenses, default is rarely an appropriate remedy. Here, however, Devoti has raised no meritorious defense. She acknowledges that Klein provided legal services to her in the divorce action and that she has not paid for those services. The only question remaining would be the amount itself, which will presumably be determined at a hearing on an assessment of damages. In any event, Devoti throughout most of this litigation did not really contest the amount of the fees; rather, her defense was that this Court lacked jurisdiction -- a defense raised in Devoti's multiple motions to dismiss and repeatedly rejected. And although she at one time alleged that Klein engaged in legal malpractice, that claim was resolved by a motion for summary judgment six months ago."
4. Counterclaims.
Devoti contends that the fifth motion judge erred by granting Klein's motion for summary judgement on Devoti's malpractice counterclaims. The fifth motion judge determined that "the summary judgment record contains no evidence that Klein did or failed to do anything that can be construed as a breach of her duty of care to Devoti; even more important, there is no evidence that any mistake or omission on Klein's part caused any damage to Devoti." Further, "Devoti has not identified any expert to testify on her behalf as to how Klein breached the standard of care that she owed to Devoti or to explain why any such breach caused some harm to Devoti." We see no error in either conclusion. See Meyer v. Wagner, 429 Mass. 410, 424 (1999) ("plaintiff must show that the attorney's breach of duty was the proximate cause of the damage or loss she sustained"); DiPiero v. Goodman, 14 Mass.App.Ct. 929, 929-930 (1982) (when question of "[w]hether a reasonably competent lawyer would have proceeded differently . . . [is] not within the field of common knowledge possessed by a jury . . . the plaintiff [is] obliged to present expert testimony to establish the standard of care owed by an attorney in the particular circumstances and the defendant['s] alleged departure from it" [citation and quotation omitted]).
Finally, Devoti challenges the denial of a motion for leave to amend her counterclaims. Among other reasons, the motion for leave to amend was denied "for the reasons of undue delay, bad faith or dilatory motive." The motion for leave to amend was based on information that had been available to Devoti for some time and was filed two days before Devoti was scheduled to be deposed. Klein argued that the motion was brought, at least in part, for purposes of delay. A "motion for leave to amend [is] a matter addressed to the discretion of the motion judge." Shaw v. Siegel, 13 Mass.App.Ct. 258, 263 (1982). On this record, "[t]he motion judge reasonably could conclude that [Devoti] was guilty of undue delay and a dilatory motive." Id. at 264. Thus, there was no abuse of discretion.
Devoti's claims also attempted to introduce new theories of liability, further justifying denial. See Genesco, Inc. v. Koufman, 11 Mass.App.Ct. 986, 990 (1981) ("[The motion to amend] would have introduced at a late stage in the litigation a substantially different claim from those theretofore asserted, which might well require further delay for discovery").
We also find unavailing Devoti's argument that the trial judge made a number of material findings that were "clearly erroneous." After reviewing the record, we see no clearly erroneous findings. Finally, any remaining arguments raised by Devoti do not require further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) .
Judgments affirmed.
The panelists are listed in order of seniority.