Opinion
15-P-1070
01-17-2017
PHILLIPS, SILVER, TALMAN, AFRAME & SINRICH, P.C. v. Michael MILLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael Miller, appeals from summary judgment entered in favor of the plaintiff, Phillips, Silver, Talman, Aframe & Sinrich, P.C. (PSTAS), both on PSTAS's complaint as well as on Miller's counterclaims, which were dismissed without prejudice. We affirm.
Background . Miller's wife, Sheila Miller (Sheila), hired PSTAS to represent her in a lawsuit arising out of a real estate dispute. Sheila signed a fee agreement as the "Client," authorizing Miller to act as her representative with respect to decisions about the case. Miller signed the fee agreement "Personally and as Trustee" of the 53 Chestnut Street Realty Trust, "guarantee[ing] the obligations of Sheila Miller, as set forth in the within Fee Agreement." Miller also signed (in both capacities) a separate "Guaranty," unconditionally guaranteeing Sheila's payment of PSTAS's legal fees.
We refer to her by her first name to avoid confusion.
Sheila voluntarily dismissed her lawsuit after over a year of litigation. PSTAS billed Sheila $42,941.38 for legal fees and costs, of which it received $2,000. PSTAS sued Miller, as Sheila's guarantor, for the balance.
PSTAS's complaint alleged breach of guaranty (Count I) and fraudulent conveyance (Count II). Miller answered, denying the allegations in part, and also alleged in a counterclaim that PSTAS filed this lawsuit against him in bad faith, breached their ethical duty to their client (Miller claimed that both he and Sheila were clients), and "committed other acts which may lead to harm to the defendant." A Superior Court judge issued a memorandum of decision and order allowing PSTAS's summary judgment motion on April 28, 2015. Miller filed a notice of appeal on May 28, 2015. On June 8, 2015, judgment was entered for PSTAS in the amount of $57,213.97, and dismissing "the remaining claim as to Count II and the counter-claims ... without prejudice."
To further secure payment of legal fees, Miller had granted a mortgage to PSTAS on property he owned as trustee.
Noting the prematurity of Miller's notice of appeal, we nevertheless reach the merits of his claims. No motions to alter the judgment were pending when Miller filed his notice of appeal. See Hodge v. Klug , 33 Mass. App. Ct. 746, 751-752 (1992) ("The entry of a final judgment on a separate piece of paper as an invariable precondition for maintaining an appeal has lost its force").
Discussion . Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). See Kourouvacilis v. General Motors Corp ., 410 Mass. 706, 716 (1991). "We review de novo the propriety of the order granting summary judgment, viewing the evidence in the summary judgment record in the light most favorable to the nonmoving party." Green v. Harvard Vanguard Med. Assocs., Inc ., 79 Mass. App. Ct. 1, 2 (2011).
Breach of guaranty . A guarantor is generally liable for the full amount of the principal's debt in accordance with the terms of the guaranty. Shawmut Bank, N.A . v. Wayman , 34 Mass. App. Ct. 20, 23 (1993). Miller adduced no evidence that would relieve him of his liability as a guarantor. He does not challenge the authenticity of the guaranty, or dispute that he understood its terms (most importantly, that it was an "unconditional guaranty of payment") when he signed it. We discern no error in the allowance of summary judgment enforcing his obligation as guarantor. See SKW Real Estate Ltd. Partnership v. Gold , 428 Mass. 520, 525 (1998).
Miller also relies on Sheila's affidavit to avoid his obligations under the guaranty. In it, Sheila states that she was under duress when she dismissed the underlying case. This defense, even if true, is unavailing. "The creditor that takes an absolute, unconditional guaranty will be able to require that the guarantor perform, notwithstanding the existence of the primary obligor's defense to performance of the primary obligor's contract with the creditor." SKW Real Estate Ltd. Partnership , supra (quotation omitted).
The counterclaims . Miller also failed to establish any genuinely disputed material facts concerning his counterclaims. Miller's bare allegation that PSTAS's lawsuit on the guaranty was initiated in bad faith is not supported by any evidence or specific facts in the record. Summary judgment was properly entered against Miller on this counterclaim. See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974) ("[A]n adverse party ... must set forth specific facts showing that there is a genuine issue for trial" [emphasis supplied] ).
Miller also claims that PSTAS breached its ethical duty to him as a client by filing this lawsuit against him before withdrawing from Sheila's case. This claim fails on two levels. First, there is no ethical prohibition on an attorney suing a client for reasonable attorney's fees under a contract. In the event of a fee dispute, a lawyer need only "conscientiously consider submitting to mediation or an established fee arbitration service." Mass.R.Prof.C. 1.5, as amended, 463 Mass. 1301 (2012) comment [9].
Second, Miller had no attorney-client relationship with PSTAS. "Where there is no attorney/client relationship there is no breach or dereliction of duty and therefore no liability." DeVaux v. American Home Assurance Co ., 387 Mass. 814, 817 (1983). While the existence of an attorney-client relationship can be " ‘implied from the conduct of the parties' and need not be expressed," Robertson v. Gaston Snow & Ely Bartlett , 404 Mass. 515, 522, cert. denied, 493 U.S. 894 (1989), quoting from Page v. Frazier , 388 Mass. 55, 62 (1983), we fail to see even an implication of this relationship. The fee agreement is signed and initialed only by Sheila as the "Client," and the docket of her case lists only Sheila as the plaintiff. See Fanaras Enterprises, Inc . v. Doane , 423 Mass. 121, 124 (1996) (to establish claim of attorney error or omission, client must first prove existence of attorney-client relationship with respect to specific matter in which alleged error or omission occurred). Miller states in his affidavit, without citing any materials in the summary judgment record, that both he and Sheila are PSTAS's clients. In the face of the fee agreement and the docket in the underlying matter, this assertion is insufficient to raise a genuine issue of material fact. See Ng Bros. Constr., Inc . v. Cranney , 436 Mass. 638, 648 (2002) ("An adverse party may not manufacture disputes by conclusory factual assertions; such attempts to establish issues of fact are not sufficient to defeat summary judgment"). Accordingly, summary judgment on Miller's counterclaims was appropriate.
To the extent Miller raises other issues in his brief, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
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Attorney's fees . PSTAS's request for an award of attorney's fees "associated with defending against this appeal," as provided in the terms of the guaranty, is allowed. Within fourteen days of the date of the rescript, PSTAS shall submit a statement of appellate attorney's fees and costs, with appropriate supporting materials, in accordance with the procedure specified in Fabre v. Walton , 441 Mass. 9, 10-11 (2004). Within fourteen days thereafter, Miller may submit an opposition to the amounts requested.
Judgment affirmed .