Opinion
09-P-1925
08-16-2011
KATHLEEN HAAG & another v. BURNS & LEVINSON, LLP, & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiffs Kathleen and Robert Haag appeal from a summary judgment dismissing their legal malpractice claims against the defendants, Burns & Levinson, LLP; Murphy & Michaels, LLP; and Steven J. Marullo. On appeal, the plaintiffs argue that the judge erred in finding that (1) the defendants breached no duty to Kathleen Haag; and (2) Kathleen Haag's innocent spouse defense would not have succeeded. We affirm, but on a separate basis.
We note that the plaintiffs' ancillary claims of mispresentation, intentional and negligent infliction of emotional distress, and G. L. c. 93A violations, all fail as a matter of law, as each of these claims was predicated on the defendants' alleged malpractice.
Discussion. To succeed on a claim of legal malpractice, '[e]xpert testimony is generally necessary to establish that an attorney failed to meet the standard of care owed in the particular circumstances, unless the alleged malpractice ' is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence." Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987), quoting from Pongonis v. Saab, 396 Mass. 1005, 1005 (1985). See Coastal Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass. App. Ct. 55, 60 (2004). Contrast Glidden v. Terranova, 12 Mass. App. Ct. 597, 598-600 (1981) (expert testimony not needed where attorney's actions led to client's default and imprisonment).
Here, the plaintiffs failed to present any expert testimony in support of their legal malpractice claims. As a matter of law, the alleged malpractice asserted here was not 'so gross or obvious that laymen c[ould] rely on their common knowledge to recognize or infer negligence.' Pongonis v. Saab, supra. Accordingly, the plaintiffs' theory of malpractice fell within the general rule requiring expert testimony. Since the plaintiffs failed to offer any expert testimony in this regard, summary judgment was properly entered in favor of the defendants.
Here, the plaintiffs had the ultimate burden of proving negligence on the part of the defendants. On the issue of duty, expert testimony was required to prove whether a competent tax attorney practicing at the time would have known that a notice of levy pursuant to 26 U.S.C. § 6330 constituted 'collection activity.' The plaintiffs merely provided regulations and committee reports, neither of which shed light on the question whether a duty existed.
We acknowledge that neither party addressed the lack of expert testimony either in the lower court or on appeal. Nor was the issue contemplated by the motion judge. In reviewing a summary judgment, however, we may consider any ground supporting the judgment, including issues not raised by the parties or dealt with by the motion judge. Chicopee Concrete Serv., Inc. v. Hart Engr. Co., 398 Mass. 476, 479 (1986) ('If the Superior Court judge should have entered . . . judgment on the basis of the material properly before him on the parties' cross motions for summary judgment, the Appeals Court dealing with the same record is fully warranted in directing that it be done'). See, e.g., Judson v. Essex Agric. & Technical Inst., 418 Mass. 159, 162 (1994); Fay v. Federal Natl. Mort. Assn., 419 Mass. 782, 789 (1995); Foster v. Group Health, Inc., 444 Mass. 668, 672 (2005).
Oral argument was held on June 8, 2011. On June 28, 2011, we invited the parties to submit supplemental memoranda with the court to address the holdings in Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. at 111, and Coastal Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass. App. Ct. at 60. The controlling principle set forth in these cases was not addressed by the parties or the motion judge, and the panel sought to afford the parties an opportunity to address this issue before we made our determination.
Judgment affirmed.
By the Court (Trainor, Fecteau & Hanlon, JJ.),