Opinion
21-P-204
05-02-2022
KRZYSZTOF G. SOBCZAK v. LAW OFFICES OF DAVID J. HOEY, P.C.
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, Krzysztof G. Sobczak, appeals from the dismissal of his complaint alleging, inter alia, that the defendant, the Law Offices of David J. Hoey, P.C., owed him substantial contingency fees for matters that he worked on as an independent contractor for the firm. This action was commenced in the Suffolk Superior Court on May 1, 2019, after a prior action filed by the plaintiff against the defendant, arising out of the same facts, was dismissed with prejudice by the Middlesex Superior Court on February 5, 2018. Said dismissal was affirmed on appeal by a different panel of this court in an unpublished memorandum and order issued pursuant to our former rule 1:28 (the substance of which is now codified in M.A.C. Rule 23.0)-
See Sobczak v. Law Office of David J. Hoey, P.C., 94 Mass.App.Ct. 1115 (2019) .
The trial court dismissed the present action on claim preclusion grounds on August 2, 2019, and the plaintiff appeals. The plaintiff also appeals from the trial court's entry of an impoundment order, which was initially entered ex parte and then extended on May 13, 2019, following a hearing and written briefing by both parties, as well as from the denial of a motion for reconsideration of this order. The trial court entered the impoundment order in view of the fact that the Middlesex matter, based on virtually identical facts, had been impounded at the time. On September 3, 2019, the plaintiff filed his notice of appeal from the dismissal and "all the associated rulings, and all other evidentiary, legal, and other rulings and orders of the trial court." We now affirm.
Background.
The plaintiff, a licensed attorney in the Commonwealth of Massachusetts, had a professional affiliation with the defendant law firm between February 2014 and January 2017. Due to the confidential nature of the defendant's work, the parties entered into a confidentiality agreement in furtherance of this professional affiliation, which provided for arbitration of any disputes under the agreement at the defendant's election.
After their professional relationship ended, the plaintiff filed suit against the defendant in Middlesex Superior Court on April 28, 2017, alleging that the defendant owed him unpaid wages for work performed on twenty-four of the defendant's active litigation matters, and asserting violations of the Massachusetts Wage Act, G. L. c. 149, §§ 148, et seq. The defendant immediately sought impoundment of the Middlesex action based on the confidentiality agreement, and to arbitrate the dispute over whether the complaint contained confidential information within the scope of the confidentiality agreement. By order dated May 9, 2017, the Middlesex Superior Court compelled the parties to participate in such arbitration and provisionally impounded the case, stating, "The file in the case is hereby provisionally impounded (that is, available only to the parties and their counsel), to be revisited after receipt of the Arbitrator's Award." The plaintiff's motion for reconsideration of this order was denied. He subsequently failed to comply with the court's arbitration order by a January 5, 2018, deadline, and, on January 9, 2018, the defendant moved to dismiss the Middlesex action with prejudice, pursuant to Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). A Middlesex Superior Court judge allowed that motion, entering a judgment of dismissal with prejudice on February 5, 2019. The plaintiff appealed the dismissal, which was affirmed by a different panel of this court on January 4, 2019.
Discussion.
A. The dismissal of the complaint on the basis of claim preclusion.
We review the allowance of a motion to dismiss de novo. Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 614 (2019). A complaint that does not plausibly suggest an entitlement to relief must be dismissed. Dunn v. Genzyme Corp., 486 Mass. 713, 722 (2021). Here, the plaintiff's claim for contingency fees in the present case is barred by the dismissal of the Middlesex case arising out of virtually identical facts under the doctrine of claim preclusion. Claim preclusion "makes a valid, final judgment conclusive on the parties . . ., and bars further litigation of all matters that were or should have been adjudicated in the [original] action" (citation omitted). LaRace v. Wells Fargo Bank, N.A., 99 Mass.App.Ct. 316, 323-324 (2021) . The invocation of claim preclusion requires three elements: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) a prior final judgment on the merits. I_d. The defendant has established all three elements here.
First, the plaintiff and the defendant are identical in the present action and the Middlesex action. This is not under dispute.
Second, two claims are identical for the purposes of claim preclusion if they are "derived from the same transaction or series of connected transactions." Saint Louis v. Baystate Med. Ctr., Inc., 30 Mass.App.Ct. 393, 399 (1991). See Baby Furniture Warehouse Store, Inc. v. Meubles D&F Ltee, 75 Mass.App.Ct. 27, 34 (2009). Even where a party presents different evidence or legal theories, or seeks different remedies in the second action, the claim is precluded if those matters "could have or should have been litigated" in the first action. Charlette v. Charlette Bros. Foundry, Inc., 59 Mass.App.Ct. 34, 44 (2003) . See Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass.App.Ct. 386, 391 (1994).
Here, both complaints assert claims for compensation allegedly owed to the plaintiff by the defendant for work performed during the same period of their professional affiliation, and both specifically allege that the plaintiff was working on twenty-four active litigation matters before this affiliation ended. The plaintiff has admitted that the disputed cases for which he claims an entitlement to compensation are the same. Therefore, all of the plaintiff's claims arose from the same set of facts. Only the legal theories of liability differ. In the Middlesex action, he alleged a right to compensation under the theory of lost wages as an employee; in the present action, his theory is that he is due contingency fees as an independent contractor.
The plaintiff argues that there is nonetheless no identity of the causes of action because his claims to contingency fees were not ripe where several of the litigation matters he worked on were only settled or adjudicated after he filed the Middlesex action. He avers that the precise amount of contingent fees to which he was entitled could not have been known until the resolution of those cases, and thus he lacked the incentive and the opportunity to raise these claims in the prior action.
While it is true that the precise dollar amounts allegedly due to the plaintiff might not have been fully ascertainable at the time he initiated the Middlesex action, the question of whether he was entitled to any fee at all for each of the twenty-four cases could have been litigated in the Middlesex case. The nature of the parties' professional relationship, their contractual obligations, and the plaintiff's involvement in each of these cases, was fully known when he brought the Middlesex action. A claim for a declaratory judgment from the Middlesex court, that he was entitled to a certain percentage of all forthcoming contingency fees, was ripe at that time. Thus, the second prong of the test for claim preclusion has been met.
Finally, the dismissal of the Middlesex action with prejudice pursuant to rule 41 (b) (2) "operates as an adjudication upon the merits." Mass. R. Civ. P. 41 (b) (3), as amended, 454 Mass. 1403 (2009). For claim preclusion purposes, a dismissal on the merits and a dismissal with prejudice are the same thing. LaRace, 99 Mass.App.Ct. at 324, and cases cited. Dismissal under these circumstances adjudicates the merits of a dispute "as fully and completely as if the order had been entered after trial" (citation omitted). Bagley v. Moxley, 407 Mass. 633, 637 (1990). The plaintiff may be correct that "none of the underlying issues were actually litigated," but that is immaterial. The proper way to challenge the order compelling arbitration was not simply to fail to show up for that arbitration. The dismissal with prejudice that resulted was proper and, indeed, was affirmed by a panel of this court. That was a final adjudication of the Middlesex action. Consequently, we see no error in the dismissal of the instant action on claim preclusion grounds.
B. Propriety of the impoundment order.
The plaintiff next argues that the Suffolk Superior Court judge erred by entering a global impoundment order in this case and in denying his motion for reconsideration of that order. In light of the impoundment order in place in the Middlesex case at the time the impoundment order in this case entered, we disagree.
"Massachusetts has long recognized a common-law right of access to judicial records." Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004). See Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000). Accordingly, most judicial records are presumptively public documents. Republican Co., supra. This presumption of publicity of judicial records, however, is not absolute, and may be restricted on a showing of "good cause," pursuant to the Uniform Rules on Impoundment Procedure, which govern impoundment orders under Massachusetts Trial Court Rule VIII (2015). See Boston Herald, Inc., 432 Mass. at 600. We review orders concerning impoundment for abuse of discretion or other error of law. New England Internet Cafe, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 83 (2012).
Rule 7 (a) of the Uniform Rules on Impoundment Procedure provides that a court may enter an impoundment order "for good cause shown and in accordance with applicable law."
To determine if the moving party has shown good cause, the judge must balance the rights of the parties based on the particular facts of each case. New England Internet Cafe, LLC, 462 Mass. at 83. In this regard, "a legitimate expectation of privacy ordinarily is sufficient to constitute good cause." H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 330 (1987). If there is good cause to impound documents, a judge is required to tailor the scope of the impoundment order so that it does not exceed the need for impoundment. New England Internet Cafe, LLC, supra, citing Boston Herald, Inc. 432 Mass. at 605. Based on the trial judge's analysis, we find no abuse of discretion here.
The Suffolk Superior Court judge considered several factors before entering the impoundment order in this case, including the presence of a written confidentiality agreement between the parties and, crucially, the existence of the impoundment order in the Middlesex action, which was based on the same facts. In the order issued after briefing and argument, the Suffolk Superior Court judge reasoned that a failure to issue a global impoundment order in the present case would "result in an end-run around the court orders in the Middlesex Action." Whatever result we might have reached in the first instance, entering an impoundment order based on such reasoning was not an abuse of discretion.
The plaintiff argues that the Middlesex Superior Court order merely partially impounded that case and therefore a global impoundment order here is not narrowly tailored to serve the need for impoundment. The Middlesex Superior Court impoundment order, however, stated that "the file in the case is hereby provisionally impounded (that is, available only to the parties and their counsel), to be revisited after receipt of the Arbitrator's Award." On its face, this impoundment order is not "partial," and it was still in place at the time the Suffolk court ruled on impoundment.
Conclusion.
The judgment dismissing the plaintiff's complaint on claim preclusion grounds, and the trial court's impoundment order before us and order denying the motion for reconsideration, are affirmed.
During the pendency of this appeal, the judge issued a superseding impoundment order that vacated the impoundment order with respect to the transcript of a single hearing. We disagree with the defendant that this renders the appeal of the impoundment order moot.
The defendant's request for attorney's fees is denied.
So ordered.
The panelists are listed in order of seniority.