Opinion
15-P-202
02-05-2016
HELAINE A. SMITH v. ROBERT DELAHUNT & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The plaintiff, Helaine A. Smith, appeals from the summary judgment dismissing her claim of legal malpractice against the defendants, Robert Delahunt and his law firm, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (Mintz Levin) (collectively, the defendants). We affirm for substantially the reasons set forth in the judge's well-reasoned memorandum of decision.
Background. "We recite the material facts in the light most favorable to [Smith], as the nonmoving party." Lyon v. Nutt, 436 Mass. 244, 245 (2002). Smith is a dentist who owned and operated two dental offices, one in Dedham and one in Boston. In March of 2011, the Board of Registration in Dentistry (BORID) conducted unannounced inspections and found numerous violations of dental regulations including, among others, the failure to spore test sterilization equipment, improper use of oral sedation, and the improper administration of prescriptions and Botox. Smith retained Delahunt to represent her before the BORID. Another attorney, Ellen Janos, from Mintz Levin's health care practice, provided assistance.
Delahunt advised Smith to sign an "agreement for voluntary surrender," which she did on March 31, 2011, the effect of which was to surrender her license pending the BORID review. The BORID then began an investigation of the alleged violations. Because the BORID investigation was taking longer than the defendants had anticipated, they requested permission from the BORID (by way of an April 25, 2011, letter from Delahunt and Janos) for Smith to reopen her practice on a limited basis. When the request was denied, the defendants suggested that Smith retain new counsel.
Smith then hired the law firm of Collora LLP (Collora). Like the defendants, Collora unsuccessfully attempted to obtain permission for Smith to continue to practice during the investigation. BORID concluded its investigation in June, 2011, and notified Smith that fifty-eight violations had been found. Ultimately, Smith, while represented by Collora, admitted to several of the violations and signed an "amended agreement for voluntary surrender," (amended agreement) by which she agreed to a six-month suspension of her license, retroactive to March 31, 2011, the date of the original voluntary suspension. The amended agreement also required Smith to obtain a forensic psychiatric evaluation and to complete certain BORID-approved courses. Smith sold her dental practice in August, 2011, and her license was reinstated in January, 2012.
In granting the defendants' motion for summary judgment, the judge concluded that, even assuming the defendants failed to exercise reasonable care and skill in handling Smith's matter, she failed to produce any evidence of a causal connection between their negligence and the claimed harm, namely, the loss of her license for a six-month period. Thus, the judge ruled, an essential element of Smith's proof was unlikely to be forthcoming at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). We agree with that assessment.
Discussion. We review a grant of summary judgment de novo. Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 469 (2013).
Here, in order to prevail on her claim of legal malpractice, Smith must prove that she "would have obtained a better result had the attorney exercised adequate skill and care." Poly v. Moylan, 423 Mass. 141, 145 (1996). The gist of Smith's complaint is that, had the defendants not advised her to voluntarily surrender her license in March, 2011, she would have been able to continue practicing while the BORID conducted its investigation. However, as the judge noted, Smith offered no evidence that she would have achieved a better result before the BORID if she had not voluntarily surrendered her license in March, 2011. To the contrary, the undisputed facts are that Smith did violate numerous dental regulations, admitted doing so, and then agreed to a six-month suspension, while represented by successor counsel. Because that suspension was imposed retroactively to Smith's voluntary surrender of her license in March, she cannot show that she would have obtained a better result even if the defendants had not exercised adequate skill and care while they represented her.
Smith also contends that the judge should have deferred the defendants' summary judgment motion because, at the time of its consideration, her request to depose two Mintz Levin attorneys was pending. Rule 56(f) of the Massachusetts Rules of Civil Procedure authorizes a judge to postpone consideration of a summary judgment motion until a requesting party has completed additional discovery. Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974). A party seeking postponement under rule 56(f) must persuade the judge that a grant of additional time is likely to reveal meaningful additional facts that could affect the outcome of the summary judgment motion. See Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 109-110 (2008). The decision whether to grant a rule 56(f) request rests within the sound discretion of the motion judge. Id. at 111. We review only for abuse of discretion. See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307 (1991).
In this case, the judge amply supported her conclusion that Smith had not adequately shown that either of the lawyers had any discoverable information relating to the issue raised in the summary judgment motion, namely, whether the defendants had caused the harm as alleged. Therefore, we cannot say that she abused her discretion.
Judgment affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 5, 2016.