Opinion
No. 11–P–2175.
2013-04-2
Steven G. MILLER v. MILTON HOSPITAL AND MEDICAL CENTER, INC., & others.
By the Court (CYPHER, KANTROWITZ, & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Dr. Steven G. Miller, appeals from an order of enforcement of an attorneys' lien for fees and costs, as amended to include prejudgment interest, and the ensuing judgment entered in favor of Attorneys Lyons and Small on their motion filed pursuant to G.L. c. 221, § 50, following the plaintiff's termination of their services in 2006. The plaintiff makes a number of claims concerning the quality of representation that he received and the manner in which the prior proceedings were conducted, but offers no argument as to how the motion judge abused her discretion in ordering the enforcement of the lien. As all of his substantive complaints against the defendant attorneys and the claimed errors involving the judicial proceedings in two separate lawsuits have been litigated to finality, only the judge's decision on the fee issue is properly before us. We affirm the judgment. This matter, originally a contract dispute between the plaintiffs, Miller, individually and as president and sole shareholder of a professional corporation, Physicians Emergency & Medical Care, P.C.,
and the defendants, Milton Hospital and Medical Center, Inc. (hospital), and certain of its officers, arose out of the hospital's allegedly improper refusal to renew its contract with the plaintiffs to provide emergency medical services at the hospital.
The corporate plaintiff's appeal was dismissed by a judge of the Superior Court because the corporation was not represented by counsel.
On remand following the plaintiffs' appeal from summary judgment,
the parties agreed, less than two weeks before trial, to mediate their dispute. This effectively led to settlement negotiations and a tentative agreement, signed in principle by Miller and later confirmed on Miller's behalf by his attorneys, that would pay Miller $750,000. After several extensions of the nisi order that had entered following report of settlement to the court, Miller terminated the services of his attorneys, the active defendants herein, and attempted to avoid the settlement by a motion for relief from judgment, met by a cross motion from the defendant hospital to enforce the settlement. After an evidentiary hearing, a judge of the Superior Court allowed the defendants' motion to enforce the settlement and issued a judgment awarding the agreed-upon amount to Miller. Miller filed a timely notice of appeal but, because he did not perfect his appeal, it was dismissed upon motion.
See Miller v. Milton Hosp. & Med. Center, Inc., 54 Mass.App.Ct. 495, 501 (2002).
Miller filed several “reconsideration” motions, all of which were denied. Miller filed another notice of appeal that was timely only as to the judge's January, 2007, order denying Miller's second reconsideration motion. Miller also sought additional time in which to file a notice of appeal from the judgment and from the order dismissing his appeal; those motions, all filed more than thirty days after the appeal periods expired, were denied as untimely. Miller filed a notice of appeal from the judge's order denying his motion for leave to file an untimely notice of appeal but did not prosecute that appeal. Ultimately, Miller failed to attend a Superior Court status conference scheduled to review the appellate status of this case and, consequently, in December, 2010, another judgment entered for “failure to comply with appeal status review of docket.”
Shortly after Miller's termination of their services, Miller's former attorneys, Lyons and Small, filed notice of an attorney's lien, generally asserting that Miller owed them approximately $275,000 in fees and costs for services performed up to the date of their termination. A judgment to enforce the settlement entered, and Lyons and Small moved to enforce their lien on the judgment. After a hearing in April, 2011, the judge allowed their motion and issued a judgment in favor of Lyons and Small in the amount of $275,173.50, later amended to include interest on the award. Miller timely appealed from this judgment.
In November, 2008, Miller filed a malpractice action against Lyons and Small; that matter was dismissed on Lyons's and Small's motion pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). Although Miller again filed a notice of appeal, that appeal was also dismissed.
The appeal was dismissed by this court for lack of prosecution. See Appeals Court docket no. 10–P–488.
Miller reargues here most of the rulings of significance made in these actions, including the lawfulness of the judgment that enforced the settlement of his action against the defendant hospital, the orders dismissing his malpractice and misrepresentation action against the defendant attorneys, and the dismissal of his appeals from both actions. All of Miller's contentions here, including his claims of “extreme bias” and discrimination on the part of the judge, and denial of his due process rights, relate to earlier proceedings from which no appeal was perfected. Since Miller is making claims that were either made or could have been made in those actions, now reduced to final judgments, he is estopped from relitigating them here under res judicata principles.
“ ‘Res judicata’ is the generic term for various doctrines by which a judgment in one action has a binding effect in another.” Heacock v. Heacock, 402 Mass. 21, 23 n. 2 (1988). It comprises “claim preclusion” (traditionally known as “merger” or “bar”) and “issue preclusion” (traditionally known as “collateral estoppel”). Ibid. As Heacock instructs, “[t]he doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action.” Id. at 23. Claim preclusion applies even though a claimant may in the second instance present new evidence, new theories, and new prayers for ultimate relief. Massaro v. Walsh, 71 Mass.App.Ct. 562, 565 (2008). Ultimately, “[t]he doctrine is a ramification of the policy considerations that underlie the rule against splitting a cause of action....” Heacock v. Heacock, supra at 24.
The doctrine of issue preclusion provides that when an issue has been “actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim.” Cousineau v. Laramee, 388 Mass. 859, 863 n. 4 (1983), quoting from Restatement (Second) of Judgments § 27 (1982). See Jarosz v. Palmer, 436 Mass. 526, 530–531 (2002).
In dismissing Miller's malpractice action, the judge concluded that although consideration of the instant case was not prohibited by principles of claim preclusion with respect to the earlier contract action, as the alleged malpractice also included transactions predating the settlement negotiation period, issue preclusion indeed applied. Since the plaintiff had objected to the enforcement of the settlement in the contract action due to his attorneys' lack of authority to settle the action, their alleged misrepresentations to and coercion of him were issues actually litigated by evidentiary hearing and resolved by the judge against the plaintiff; accordingly, most of the issues in the malpractice action were identical to those previously adjudicated and were therefore entitled to be given preclusive effect.
Moreover, any residual issues, such as claims of malpractice relating to conduct before the settlement discussions began, were deemed to be too speculative to survive an analysis under Mass.R.Civ.P. 12(b)(6).
This includes the claim by Miller that no “agreement” existed between himself and Lyons and Small. However, the first motion judge also addressed that claim, as “Dr. Miller argue[d] the [fee] Agreement is not enforceable because the Attorneys did not sign it and it is not his signature on the document.” She resolved this claim, finding “the [plaintiff's] signature on the Agreement to be genuine. There is no evidence to conclude that the Contingent Fee Agreement violated any of the provisions of the Canons of Ethics as controlling in 1993. Thus, he [Miller] is bound by terms of the Agreement.” As to his claim that he had not agreed to the representation of Attorney Small specifically, “[b]oth Attorneys Lyons and Small are experienced, competent and capable of handling commercial litigation. After Attorney Rikki Klieman took a leave absence, Dr. Miller interviewed Attorney Small at the request of Attorney Lyons to replace Attorney Klieman. He was quite acceptable to Dr. Miller.”
When Miller's present claims on appeal are thus considered under res judicata principles, given the final judgments previously entered, his contentions amount to nothing more than an attempt to relitigate his claims that the settlement was improperly enforced and that his attorneys' representation of him in that action up to and including its settlement was malpractice. Therefore, the only issue remaining for our consideration in this appeal is whether the judge properly exercised her discretion in enforcing the attorneys' lien and the amount of fees awarded.
Given the discussion above, and the absence of any argument by Miller confined to the limited issue before us, he has failed to demonstrate that the judge abused her discretion in ordering enforcement of the lien and in the amount of fees, costs, and interest approved.
Judgment affirmed.