Opinion
18-P-1560
08-12-2020
JAMES P. BARRON v. GAIL OTIS.
NOTICE: 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 appeals from a judgment dismissing his legal malpractice and c. 93A claims on the ground that they were barred by the applicable statutes of limitations, G. L. c. 260, § 4 (three-year limitations period for negligence-based claims), and G. L. c. 260, § 5A (four-year limitations period for c. 93A claims). We affirm.
We review the allowance of a motion to dismiss de novo, accepting the well-pleaded allegations of the complaint as true and drawing reasonable inferences in favor of the plaintiff. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008). We may also consider documents incorporated by reference or attached to the complaint. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000); Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985). Here, those materials consist of Barron's verified complaints in his suits against his divorce attorney and the attorneys he hired after Otis., We accordingly recite the factual background taking as true the allegations contained in Barron's complaint against Otis, as well as the allegations Barron made under the pains and penalties of perjury in his cases against his other attorneys given that he references those actions in this one. Those facts are as follows.
Otis attached to her motion to dismiss court documents and filings that she asserted were fairly raised or referenced in Barron's complaint. Specifically, she attached:
(1) Barron's complaint against Casner & Edwards, LLP, which was filed on September 29, 2017;
(2) The court's memorandum and order allowing Casner & Edwards's motion to dismiss Barron's complaint on limitations grounds;
(3) Barron's malpractice complaint against the attorney after Otis (second attorney), which was filed on January 9, 2015; and
(4) Barron's malpractice complaint against the next attorney (third attorney), which was filed on January 9, 2015.
In addition, we may take judicial notice of judicial actions taken in those cases. See Mass. G. Evid. § 201(c) (2016) ("A court may take judicial notice at any stage of the proceeding, whether requested or not"). See also Jarosz v. Palmer, 436 Mass. 526, 530 (2002); Schaer, 432 Mass. at 477; Jackson v. Longcope, 394 Mass. 577, 580 n.2 (1985); Mmoe, 393 Mass. at 620; Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011); Flynn v. Brassard, 1 Mass. App. Ct. 678, 681 (1974).
Barron was represented in his divorce by an attorney (divorce attorney) associated with the law firm of Casner & Edwards, LLP. In 2007, while represented by the divorce attorney, Barron entered into a separation agreement with his wife that, among other things, irrevocably transferred ownership to the wife of a life insurance policy and miscalculated Barron's child support obligation -- both to Barron's disadvantage. More specifically with respect to the latter, Barron's social security disability income was not credited against his child support obligation contrary to Rosenberg v. Merida, 428 Mass. 182 (1998).
Later, Barron became dissatisfied with the terms of his divorce; he believed that the terms of the separation agreement were unfair, and he was dissatisfied with the divorce attorney's performance. Barron accordingly started seeking legal representation and, during August 2010, was referred to defendant Otis as a "domestic relations expert." He retained Otis on September 27, 2010, to perform a "case review," at a cost of $225, in order to identify his "legal options and status." In connection with this retention, Barron sent Otis various materials: a note explaining his history, a copy of the separation agreement, a prelitigation letter sent on Barron's behalf, a pending modification complaint, replies to the prelitigation letter, and a pro se complaint. Barron also sent a neuropsychological report that showed he had cognitive deficits around the time of his separation resulting from the removal of a brain tumor in 2002.
A judgment of divorce nisi entered on June 4, 2007.
On November 1, 2010, Otis sent her review of the case, in which she failed to catch the divorce attorney's negligence with respect to the miscalculated child support and the uncompensated transfer of the life insurance policy. Barron's relationship with Otis then terminated, and he retained another attorney (second attorney), who represented him from November 16, 2010 to March 15, 2011. Barron hired the second attorney "for child support modification proceedings" and "to pursue legal malpractice claims against [the divorce] attorney." Barron alleges that the second attorney -- like Otis before him -- also failed to discover the Rosenberg v. Merida miscalculation and the divorce attorney's negligence regarding the transfer of the life insurance policy.
We recognize that Otis denies the allegations of malpractice, and has asserted several defenses.
A few months after the second attorney's representation ended, Barron retained a third attorney to represent him in proceedings to modify the child support orders that resulted from the divorce attorney's error. The third attorney represented Barron from July 2011 until January 27, 2012. This attorney, too, failed to catch the divorce attorney's errors.
Meanwhile, Barron continued to pay child support as calculated under the separation agreement. In October 2014, however, he sought a reduction of child support due to the emancipation of his oldest child. At that time, an attorney-of-the-day at the Norfolk County Probate Court alerted him to the fact that he had not been receiving the benefit of the Rosenberg v. Merida calculation, and Barron discovered that he had been overpaying child support. Barron filed a modification complaint immediately. The motion was allowed, although Barron was assessed $9,000 for his wife's attorney's fees, apparently because of his excessive filings with the court.
Barron filed suit against Casner & Edwards, LLP, on September 29, 2017. The firm moved to dismiss the complaint on statute of limitations grounds. After hearing, and without opposition, that motion was allowed. Accepting the allegations of the complaint as true, the judge concluded that the statute of limitations with respect to the miscalculated child support began to run when the plaintiff hired the third attorney in July 2011 and incurred legal fees to modify the child support orders that were the result of the divorce attorney's supposed negligence. See Cantu v. Saint Paul Cos., 401 Mass. 53, 57-58 (1987). Barron did not appeal that ruling.
Earlier, in January 2015, Barron had sued the second and third attorneys for legal malpractice based on the miscalculation of his child support payments and "other perceived malpractice." Those suits were ultimately dismissed, and the dismissals affirmed, on grounds not relevant here. See Barron v. DiPiano, 92 Mass. App. Ct. 1124 (2018); Barron v. Brofsky, 91 Mass. App. Ct. 1128 (2017).
Barron then filed the underlying complaint against Otis on March 18, 2018, asserting five untitled counts. Count 1 alleges negligence resulting in overpayment of child support until October 2014. Count 2 alleges that the defendant failed to suggest to him that he should have used the doctrine of equitable restitution to somehow undo the transfer of his life insurance policy. Barron asserts he did not learn about the doctrine of equitable restitution until March 2015 when he was doing his own legal research. Count 3 claims that Otis's negligence caused him to pay $9,000 in fees to his wife. Count 4 asserts that Otis's negligence caused him to pay $7,000 he incurred in connection with pursuing claims in Norfolk Probate case no. 06-1462. Count 5 asserts a claim under chapter 93A.
Otis moved to dismiss the complaint on the ground that the claims were untimely. After a hearing at which Barron appeared pro se, the judge allowed the motion to dismiss. This appeal followed. The parties' initial appellate briefing addressed only whether the statute of limitations had run on Barron's claims. After oral argument, we asked the parties to submit supplemental briefing on whether the decision in the Casner & Edwards case collaterally estops relitigation of the date on which Barron was on notice of his claims.
Discussion. The two issues presented here are (1) whether the decision in the Casner & Edwards case holding that Barron's claims against the divorce attorney accrued in July 2011 has preclusive effect in this case, and (2) if it does not, whether Barron's claims against Otis are timely. We conclude that the Casner & Edwards decision precludes relitigation of the date by which Barron is deemed to have known of his claims based on the miscalculation of child support. As to the transfer of his life insurance interest, we conclude Barron's claims accrued when his retention of Otis ended, and therefore are untimely asserted.
1. Collateral estoppel. "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.'" Jarosz v. Palmer, 436 Mass. 526, 530-531 (2002), quoting Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983). We have extended the doctrine to circumstances, such as here, where a party who was not involved in the previous litigation (i.e., Otis) attempts offensively to collaterally estop a party who was involved in the previous case (i.e., Barron). See Jarosz, supra. The question is whether Barron is collaterally estopped by the determination in the Casner & Edwards case that he was on notice of the miscalculation of child support by July 2011 -- a determination Barron did not appeal.
The Casner & Edwards suit involved the same issue regarding the miscalculation of child support; Barron was a party to that suit (indeed, he brought it); the ruling was adverse to him after litigation and, not having been appealed, the ruling is final. See Jarosz, 436 Mass. at 529, 536; Home Owners Fed. Sav. & Loan Ass'n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968) ("one not a party to the first action may use a judgment in that action defensively against a party who was a plaintiff in the first action on the issues which the judgment decided"). In these circumstances, Barron is collaterally estopped from relitigating the date on which he was on notice that his child support had been miscalculated.
It is true that the Superior Court judge in the Casner & Edwards case did not determine the date by which Barron constructively knew of his claims against Otis, but only the date by which he was deemed to have known of his claims against the divorce attorney. But once a person is on notice of his malpractice claim against his first lawyer, then he ordinarily should also be on notice that his subsequent lawyers did not catch the first lawyer's negligence. It makes perfect sense that the claims against Otis and the divorce attorney would accrue at the same time. To conclude otherwise would lead to the undesirable result that although Barron was on notice of his malpractice claim against the divorce attorney by July 2011, somehow that knowledge did not suffice to put him also on notice that Otis had failed to discover the divorce attorney's malpractice. But Barron's claims against Otis depend entirely on his claim that he did not know about the divorce attorney's child support miscalculation and that she failed to apprise him of it. Thus, the two claims necessarily accrue at the same time.
2. Life insurance. Because the Superior Court judge's decision did not explicitly analyze the accrual date of Barron's claim regarding the transfer of his life insurance, the doctrine of collateral estoppel does not bar litigation of that issue in this case. We accordingly examine it here.
Barron argues that his claims based on the transfer of his life insurance interest did not accrue until he learned about the doctrine of equitable restitution in March 2015 when he was doing his own legal research. Actual notice, however, is not the correct test. See Commonwealth v. Tradition (N. Am.) Inc., 91 Mass. App. Ct. 63, 71 (2017) ("A plaintiff may be put on 'inquiry notice' where [he is] informed of facts that would suggest to a reasonably prudent person in the same position that an injury has been suffered as a result of the defendant's conduct"). Instead, "[t]he statute of limitations applicable to a legal malpractice claim begins to run when a client 'knows or reasonably should know that he or she has sustained appreciable harm as a result of the lawyer's conduct.'" Lyons v. Nutt, 436 Mass. 244, 247 (2002), quoting Williams v. Ely, 423 Mass. 467, 473 (1996). "At its root meaning, appreciable harm is 'injury, loss or detriment' that is 'capable of being measured or perceived.'" Kennedy v. Goffstein, 62 Mass. App. Ct. 230, 233 (2004), quoting Black's Law Dictionary 97, 722 (7th ed. 1999). "The plaintiff need not know the full extent of [his] injury for a cause of action to accrue and for the statute of limitations to begin running." Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 229 (2002). We use an objective standard to determine when a "reasonable person in the plaintiff's position" would have known that he suffered appreciable harm. Riley v. Presnell, 409 Mass. 239, 245 (1991).
Barron's contention that Otis failed to inform him of the divorce attorney's malpractice regarding the uncompensated transfer of his interest in the life insurance policy required no particular legal expertise or knowledge to understand or discover. Barron entered into the separation agreement, which included the terms pertaining to the transfer of the life insurance, in 2007. "A cause of action accrues when there occurs a 'necessary coalescence of discovery and appreciable harm.'" Murphy v. Smith, 411 Mass. 133, 136 (1991), quoting Cantu, 401 Mass. at 57. When Barron entered into the separation agreement agreeing to the uncompensated transfer of his interest in the life insurance policy, he knew everything he needed to know to understand that he had been harmed by the transfer of his interest. Thus, his claim against Otis for failing to advise him that he had been harmed by the transfer of his life insurance interest accrued when his retention of Otis ended. Because Barron did not bring suit for over seven years, his claims based on the transfer of his life insurance are time barred.
Judgment affirmed.
By the Court (Rubin, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 12, 2020.