Opinion
18-P-1497
10-21-2019
Kelechi LINARDON v. Erin C. BIRMINGHAM-ANADU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se plaintiff appeals from the dismissal on summary judgment of her legal malpractice claim against the defendant, who represented her in defending against a residential summary process eviction action. The Superior Court judge allowed summary judgment primarily on the ground that the plaintiff had failed to disclose her expert's anticipated testimony or provide the basis for her expert's opinion, Mass. R. Civ. P. 26 (b) (4), 365 Mass. 772 (1974), and, therefore, would be unable to prove that the defendant breached the applicable standard of care. We affirm.
The defendant did not enter her appearance in the summary process action until after the filing of the answer and counterclaims.
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The plaintiff has failed to present a sufficient record on appeal to support her arguments. Specifically, she has not provided the entire summary judgment record, including the exhibits to her opposition to the summary judgment motion, or the discovery responses that were at issue. It is the appellant's burden to provide those portions of the record that support her claims on appeal. Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997). This she has not done. On this basis alone, we could affirm the judgment because the plaintiff has given us no basis upon which to disturb it. See Shawmut Community Bank, N.A., v. Zagami, 30 Mass. App. Ct. 371, 372-374 (1991), S.C., 411 Mass. 807 (1992). See also Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). The defendant, however, filed a motion for leave to file a supplemental appendix containing the missing materials, which was allowed by this court. Ironically, the plaintiff has moved to strike the supplemental appendix. Considering her pro se status, and in the interest of justice, we are denying the motion to strike so as to permit us to review the substance of both parties' arguments.
To prevail in a legal malpractice case, a plaintiff must establish (1) the existence of an attorney-client relationship, (2) a breach of the relevant standard of care, and (3) a causal connection to (4) damages. See Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987). See also Chang v. Winklevoss, 95 Mass. App. Ct. 202, 214-215 (2019). Ordinarily, expert testimony is required "to establish that an attorney failed to meet the standard of care owed in the particular circumstances." Colucci, supra. See Pongonis v. Saab, 396 Mass. 1005, 1005 (1985), and cases cited.
The plaintiff does not dispute that she failed to disclose any expert opinion. Instead, she argues that no expert testimony was necessary because the claimed malpractice was "so gross or obvious that laymen [could] rely on their common knowledge to recognize or infer negligence." Pongonis, 396 Mass. at 1005. We disagree. Most of the plaintiff's claims relate to trial strategy and execution, such as her claims that the attorney failed to present certain evidence at trial or make certain arguments. Although the plaintiff also contends that the attorney failed to follow her instruction to send a G. L. c. 93A demand letter (and we note that there is no admissible evidence in the summary judgment record reflecting that instruction, Mass. R. Civ. P. 56 [e], 365 Mass. 824 [1974]), without expert testimony a jury would not be able to evaluate the claim. In particular, absent expert testimony, a jury could not determine whether the appropriate standard of care required that a c. 93A demand be sent, or the claim's strength or likely outcome. We note in this regard that the outcome of the underlying summary process action provides no reason to think that success would have been assured if a c. 93A claim had been asserted.
Finally, we are not persuaded by the plaintiff's other arguments. We do not read the judge's order to say that summary judgment was allowed because the pro se plaintiff did not appear at the hearing. Nor do we understand the judge to have entered summary judgment as a sanction for her discovery failures.
Judgment affirmed.