Opinion
SUCV201403809F
10-16-2017
David MURRAY v. Ashley GREENE, et al.[1]
Caption Date: September 27, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (PAPER # 12)
Mary K. Ames, Justice
INTRODUCTION
This is a legal malpractice action arising out of post-divorce negotiations that were undertaken in connection with. a contempt complaint filed by an ex-wife against her ex-husband. The plaintiff, David Murray (" Murray"), asserts claims for negligence (Count I) and breach of contract (Count II) against the defendants, his former attorney, Ashley Greene (" Attorney Greene"), and the law firm for which she worked, Rudolph Friedmann, LLP (" Rudolph Friedmann") (collectively, the " Defendants"). Murray contends Attorney Greene was negligent in failing to include, in a court-approved stipulation/agreement that resolved contempt claims asserted by his ex-wife, Eleanor Murray (" Eleanor"), an additional provision requiring Eleanor to sell her home before a date certain or to limit his responsibility for payment of the mortgage on the home to a specific sum. This matter is currently before the court on the Defendant’s Motion for Summary Judgment (Paper # 12). For the reasons explained below, the Motion for Summary Judgment will be ALLOWED.
BACKGROUND
In 2011, Eleanor brought a Complaint for Contempt against Murray for violation of their 1998 Divorce Decree (the " Divorce Agreement"). J.A., Ex. 2. In accord with the Divorce Agreement, Murray was responsible for child support payments as well as for payment of health insurance premiums and other obligations. J.A., Ex. 3. These other obligations required Murray to convey property (the " Property") located at 16 Todd Lane in Billerica, Massachusetts, to Eleanor so that she could raise their three minor children there. J.A., Ex. 3. Under the Divorce Agreement, Murray was responsible for making the mortgage payments on the Property. J.A., Ex. 3. Murray continuously made the mortgage payments from February 1998, when the Divorce Agreement was executed, until December 7, 2011. J.A., Ex. 6, Greene Depo., pp. 21-22.
Murray contends that, even though he made payments until December 2011, his obligation to pay the mortgage actually ended in February 2003. The Divorce Agreement is not entirely clear on this point. Under the section entitled " Assumption of the Mortgage, " the Divorce Agreement states: " The Husband agrees to assume and pay the existing mortgage (principal and interest) in accordance with its terms, and will hold harmless the Wife from and against all claims and costs relating to Todd Lane." J.A., Ex. 3. Then, at the end of this paragraph, there is an asterisk and a handwritten notation stating " and real estate taxes until February 23, 2003." J.A., Ex. 3. The termination of Murray’s Payment obligation, as set forth in the Divorce Agreement, is not material to the outcome of the current motion.
The Complaint for Contempt alleged Murray owed Eleanor $22, 500.00 in outstanding child support and $5, 815.00 in unpaid health insurance premiums, J.A., Ex. 2. Murray hired Attorney Greene from the Rudolph Friedmann law firm to help him resolve these issues. Attorney Greene negotiated a settlement agreement (the " Settlement"), on Murray’s behalf, with Eleanor acting pro se. J.A., Ex. 6, Greene Depo., pp. 55-57. A family services mediator participated in the negotiations. J.A., Ex. 6, Greene Depo., p. 57; Ex. 5, Eleanor Depo., p. 21.
In accord with the Settlement, Eleanor forgave the $22, 500.00 Murray owed in outstanding child support payments and the $5, 815.00 he owed in outstanding health insurance premiums. In exchange, Murray agreed to: pay an outstanding property tax bill in the amount of $9, 000.00; pay an outstanding heating and air conditioning bill in the amount of $436.00; make future child support payments in accord with the Divorce Agreement; make health insurance premium payments, as set forth in the Divorce Agreement, and continue to pay the Property’s monthly mortgage payments. J.A., Ex. 1, Pl.’s Compl., Ex. A. Paragraph Six of the Settlement, which addresses the mortgage payments, states, in full: " Father agrees to continue paying the mortgage on the home located at 16 Todd Lane, Billerica, MA, until such time that the house is sold. J.A., Ex. 1, Pl.’s Compl., Ex. A, para. 6.
In the Complaint, Murray asserts claims against Attorney Greene and Rudolph Friedmann for legal malpractice and breach of contract. J.A., Ex. 1, Pl.’s Compl . Murray alleges that it was negligent for Attorney Greene to advise him to sign the Settlement, since the Settlement did not include an additional provision either requiring Eleanor to sell the Property by a date certain or limiting his responsibility for payment of the mortgage to a specific sum. J.A., Ex. 1, Pl.’s Compl. There is no record evidence indicating Eleanor would have agreed to such a provision.
At her deposition, Eleanor testified that she never agreed to sell the Property by a date certain. When asked, " [d]uring the December 7th, 2011 hearing, did you ever state that you would sell the former marital home by a specific date, " Eleanor answered, " Not by a specific date. I told them I was going to sell the house just because it was too big. I was down-sizing." J.A., Ex. 5, Eleanor Depo., pp. 32-33. And, when asked again, " [y]ou never agreed to sell it by a specific date" and, " [d]id you agree to limit the mortgage payments to a certain amount, " Eleanor answered, " [n]o, " to both inquiries. J.A., Ex. 5, Eleanor Depo., p. 33.
Eleanor explained further: " I didn’t say I was immediately selling it. I knew I had a lot to do before I could sell it as far as cleaning it out, and I was doing it on my own. So I know it wasn’t like within a month or two that I was going to put it on the market. But I mean, my plan was to sell the house, yes, but when, I did not know when." J.A., Ex. 5, Eleanor Depo., p. 33. Later, when asked if she had told Murray she was going to sell the house within a certain time frame, Eleanor stated, " No, I told him that there were a few things that needed to be done before it could be sold ... I had no idea how long it would be when I would be ready to. But within the next few years ..." J.A., Ex. 5. Eleanor Depo., pp. 53-54.
Similarly, at her deposition Attorney Greene testified that, during negotiation of the Settlement, she requested that Eleanor agree to sell the Property by a date certain but that Eleanor refused. J.A., Ex. 6, Greene Depo. pp. 64-66. More specifically, Attorney Greene testified, in pertinent part, as follows:
I was pushing for the house to be sold. The family services officer was in a position of the house doesn’t need to be sold, there’s nothing in the agreement that says the house needs to be sold. So any time I would be pushing for the house to be sold or for a specific clause to be put into our order that said the house would be sold in 60 days or 90 days, and Eleanor was saying, no, the family services officer would interject, well, she doesn’t have a legal obligation to sell the house, so that’s not an issue that we need to put into the order. We tried, I would say, I don’t know, three, four, five different tactics to get language about the house being sold in the order ... That was absolutely not going to happen from Mrs. Murray’s standpoint ... She would say, well, I can’t sell the house because X, Y, and Z ... [I]n terms of selling the house, the only phrase that she would agree to was until such time as the home is sold or until the house is sold. That was what was put in the order. And that was the only thing she would agree to. We tried time and time again to get more specific language to make sure that she would sell that house, but she just wouldn’t budge.J.A., Ex. 6, Greene Depo., pp. 64-66. There is no record evidence adequate to dispute either this testimony or Eleanor’s testimony.
At his deposition, Murray testified that, before signing the Settlement, he fully read the document and, he was aware of Paragraph Six, which obligated him to pay the mortgage on the property. J.A., Ex. 4, Murray Depo., pp. 98-99. Murray voluntarily signed the Settlement in order to avoid the contempt, knowing it contained the mortgage provision. J.A., Ex. 4, Murray Depo., p. 98-99. He confirmed to the judge in the Probate Court that he read and understood the Settlement. J.A., Ex. 6, Greene Depo., pp. 50-52, 89.
Murray testified that he was not present during the actual negotiations, J.A., Ex. 4, Murray Depo., p. 86, and thus, he has no first-hand knowledge of what was said during Attorney Greene’s meeting with Eleanor. Moreover, while Murray testified, during his deposition, that he had a conversation with Eleanor, Attorney Greene, and the court mediator during which Eleanor agreed " to put the house on the market, " J.A., Ex. 4, Murray Depo., p. 114, a short time later, when asked " did [Eleanor] ... ever state that she would sign an agreement that had a specific sale date" and " [d]id [Attorney Greene] ... ever say to you that during her conversations with Eleanor, Eleanor agreed to sign an agreement with a specific sale date, " Murray answered, " [n]o." J.A., Ex. 4, Murray Depo., p. 116.
DISCUSSION
The Defendants contend they are entitled to summary judgment because Murray cannot establish proximate cause. More specifically, according to the Defendants, an assertion that an attorney should have negotiated a better settlement requires a plaintiff to prove that the opposing party would have agreed to better terms and, here, Murray has no evidence indicating Eleanor would have agreed to a provision requiring her to sell the Property by a date certain or limiting his payment obligation to a specific sum. In fact, the Defendants argue the record establishes the opposite. After consideration, the court concludes the Defendants are correct.
I. Standard of Review
The court grants summary judgment where there are no genuine issues of material fact and the record entitles the moving party to judgment as a matter of law. See Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983). The moving party bears the burden of establishing that there is no dispute of material fact on every relevant issue. See Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a genuine dispute of material fact either by submitting affirmative evidence negating an essential element of the non-moving party’s case, or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
II. Analysis
In the Complaint, Murray asserts claims for negligence and breach of contract. J.A., Ex. 1, Pl.’s Compl . Both claims are premised upon Attorney Greene’s alleged failure to adequately represent him when negotiating the Settlement with Eleanor. Murray argues Attorney Greene should not have advised him to sign the Settlement because the agreement did not include a provision requiring Eleanor to sell the property by a specific date or a provision limiting his mortgage payment obligation to a specific sum. J.A., Ex. 1, Pl.’s Compl. According to Murray, as a result of Attorney Greene’s poor advice, he was forced to pay the mortgage on the Property until 2014, spending a total of $22, 100.00; he was required to pay $30, 000.00 to terminate the mortgage obligation; and he incurred $22, 776.88 in legal fees. J.A., Ex. 1, Pl.’s Compl.
In order to establish a claim of legal malpractice, the plaintiff must prove that the " attorney committed a breach of the duty to use reasonable care, that the plaintiff suffered actual loss, and that the attorney’s negligence proximately caused such loss." Atlas Tack Corp. v. Donabed, 47 Mass.App.Ct. 221, 226 (1999), citing Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass.App.Ct. 107, 111 (1987). The courts do not require that attorneys " always secure optimum outcomes for their clients, " or hold an attorney liable " simply because another attorney, or even many other attorneys, would not have made the same recommendation under the circumstances." Meyer v. Wagner, 429 Mass. 410, 419-20 (1999) (internal citations omitted). A plaintiff will prevail only where " he proves that he probably would have obtained a better result had the attorney exercised adequate skill and care." Fishman v. Brooks, 396 Mass. 643, 647 (1986) (internal citations omitted). And, " [t]he mere possibility that the [defendant’s] negligence caused the [plaintiff’s] harm is not sufficient to take the issue to the jury." Girardi v. Gabriel, 38 Mass.App.Ct. 553, 560 (1995).
Proximate cause is an essential element of a claim for legal malpractice. See Jernigan v. Giard, 398 Mass. 721, 723 (1986). Thus, to succeed on such a claim, a plaintiff must " show that the attorney’s breach of duty was the proximate cause of the damage or loss ... sustained." Meyer, 429 Mass. at 424. This showing must be supported by something other than conjecture or speculation. See Borden v. Betty Gibson Assocs., Inc., 31 Mass.App.Ct. 51, 55 (1991), citing Landon v. First Nat’l Stores, Inc., 353 Mass. 756, 757 (1967); see also 1 Mallen & Smith, Legal Malpractice § 8.5, at 806 (5th ed. 2000) (" [t]he causal link between the lawyer’s conduct and the injury must be based on more than speculation ... [and, ] [a] logical explanation or theory of how the lawyer’s conduct may have caused the loss is still speculation"). In a claim for legal malpractice, when a plaintiff is unable to demonstrate evidence sufficient to establish proximate cause, summary judgment is appropriate. Girardi, 38 Mass.App.Ct. at 559.
Here, contrary to the legal principles set forth above, Murray has nothing more than speculation to support his claims against the Defendants.
First, there is no evidence demonstrating Attorney Greene breached the duty she owed Murray. Murray argues Attorney Greene never asked Eleanor if she would agree to include a provision in the Settlement requiring her to sell the Property by a specific date. The record, however, does not support this claim. At her deposition, Attorney Greene testified that she asked Eleanor multiple times about including such a provision in the Settlement and that, each time she asked, Eleanor refused to contemplate including such a requirement, especially in light of the mediator’s position that she (Eleanor) was not legally obligated to sell the Property. Since Murray acknowledges he was not present during these negotiations, he has no evidence to refute Attorney Greene’s testimony.
Second, Murray has no evidence of causation. Murray cannot prove that Attorney Greene’s failure, to include a provision limiting his mortgage payment obligation to a specific sum or requiring Eleanor to sell the Property by a specific date, caused him injury, where there is no evidence Eleanor would have agreed to such a provision. 1 Mallen & Smith, Legal Malpractice, § 24.3, at 165 (5th ed. 2000) (" [t]he common claim that an attorney failed to obtain or provide a provision in a negotiated contract must be supported by evidence that the other party to the transaction would have agreed to the provision").
Attorney Greene testified that Eleanor refused to contemplate including such a provision in the Settlement. And, Eleanor herself testified that, while she had plans to eventually sell the Property within the next couple of years, she never agreed to do so by a specific date. Even Murray testified that neither Eleanor nor Attorney Greene ever told him that she (Eleanor) had agreed to sign an agreement that included a provision identifying a specific sale date.
The uncontradicted record evidence indicates Eleanor never had any intention of agreeing to include a provision in the Settlement that would have required her to sell the Property by a specific date. Given this evidence, whether Murray could have obtained a different or better result is mere speculation. Murray read and understood the Settlement before signing it; he knew Paragraph 6 obligated him to pay the mortgage on the Property. And, since he failed to present evidence adequate to demonstrate proof of proximate cause, an essential element of his malpractice action, the Defendants are entitled to summary judgment.
ORDER
For the reasons stated above, it is hereby ORDERED that the Defendants’ Motion for Summary Judgment (Paper # 12) is ALLOWED .
SO ORDERED.