Opinion
20-P-576
08-25-2021
William F. SIMMONS, Sr., & another v. HALSTROM LAW OFFICES, P.C., & another (and a companion case).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In these consolidated appeals, William F. Simmons, Sr., and Mary Fe Simmons (collectively, the Simmonses) appeal from (1) the dismissal on summary judgment in Suffolk Superior Court of their breach of contract and G. L. c. 93A claims against Halstrom Law Offices, P.C. (HLO), and (2) the dismissal of their c. 93A claim against HLO and Frederic Halstrom in the Middlesex Superior Court. We affirm in part and vacate and remand in part.
Background. We summarize the facts in the light most favorable to the Simmonses as the nonmoving parties, reserving some details for later discussion. See Surabian Realty Co. v. NGM Ins. Co., 462 Mass. 715, 718 (2012). In 2009, the Simmonses entered into an oral contract with attorney Mary Jane McKenna to represent them in a medical malpractice and wrongful death claim after the stillbirth of their son. At that time, attorney McKenna was not employed by HLO. However, attorney McKenna subsequently became employed by HLO, and, on December 4, 2009, sent the Simmonses a written contingent fee agreement (CFA) to sign. This CFA was between HLO and the Simmonses and was signed by McKenna on behalf of HLO. The CFA provided in pertinent part:
"This agreement in no way obligates [HLO] to advance/loan any funds on this case. [HLO] may choose to do so, and may choose to cease doing so for any reason whatsoever. [HLO] reserves the right to at any time prior to the rendering of the verdict in this matter, to request that the client reimburse to [HLO] all court costs and expenses of litigation advanced by [HLO] up to the time of the request for reimbursement. Furthermore, [HLO] reserves the right not to advance/loan any further monies, if any were advanced by [HLO], at any time. In that event, the client must advance said court costs and expenses of litigation."
The Simmonses executed the CFA.
In August 2011, HLO (on the Simmonses’ behalf) filed a medical malpractice complaint in the United States District Court for the District of Massachusetts (medical malpractice suit). The medical malpractice suit was actively litigated thereafter, and was set for trial on March 10, 2014.
Approximately a month before the scheduled trial date, HLO sent a letter to the Simmonses stating that (1) HLO had already lent the Simmonses $30,000 in case costs, (2) the firm could not lend any further amounts, and (3) $25,000 would be needed to pay in advance two experts needed for trial. HLO demanded immediate payment of the $25,000 required to bring the experts to testify at trial. After the Simmonses did not agree to pay the amounts demanded, HLO moved to withdraw as counsel. The Simmonses were represented by counsel on a limited basis at the hearing on the motion to withdraw, but they pressed no argument against allowing the motion. By contrast, the motion was opposed by the medical malpractice defendants on the ground that withdrawal so close to the scheduled trial date would prejudice them. After hearing from Halstrom in camera, the Federal District Court judge allowed the motion and postponed the trial date. The Federal judge's ruling explained:
The Simmonses’ counsel in the case at hand, attorney Sobczak, was previously an attorney with HLO and had filed an appearance on behalf of the Simmonses in the medical malpractice suit. He filed a motion to withdraw as counsel, which was also heard and allowed at the same hearing that HLO's motion was heard. The basis for attorney Sobczak's motion was that he was no longer with the HLO firm. No party has briefed the propriety of attorney Sobczak serving as the Simmonses’ counsel in this litigation.
"One month prior to the scheduled trial date the plaintiffs[’] lead counsel moved to withdraw from the case. With the trial date set, leave of the court is required to withdraw. L.R. 83.5.2(c). Due to the issues between counsel and the plaintiffs, which were revealed to the Court in camera, trial with the current counsel is not feasible. The ... Motion to Withdraw is GRANTED."
The Simmonses contend that they were unable to find successor counsel for the medical practice suit, which was later dismissed for lack of prosecution. The Simmonses did not appeal.
More than one year after the ruling on the motion to withdraw, Halstrom, as assignee of HLO, filed a breach of contract action in Suffolk Superior Court against the Simmonses, seeking reimbursement of amounts supposedly advanced by HLO in the medical malpractice suit. The Simmonses asserted counterclaims for negligence and corporate disregard against Halstrom. They also asserted third-party claims against HLO for breach of contract, violation of c. 93A, and corporate disregard. Halstrom's claim was dismissed on the ground that the assignment by HLO to him was invalid because HLO had failed to obtain the Simmonses’ consent prior to making the assignment. The judge concluded that the defect in the assignment deprived Halstrom of standing to pursue the debt. With similar reasoning, the judge dismissed the Simmonses’ counterclaims against Halstrom individually.
There is no issue on appeal concerning the claims by or against Halstrom individually.
The Simmonses then filed their first amended complaint [FAC] restating their third-party claims against HLO, and adding a claim against HLO's insurer. As to the FAC's claims, the Superior Court judge divided discovery into phases: the first phase was confined to the breach of contract claim against HLO, the second to the c. 93A claim against HLO, and the third to the claims against the insurer. The claims against the insurer were stayed. After each of the first two phases of discovery, HLO moved for summary judgment.
There is no issue in this appeal concerning the claims against the insurer.
The insurer moved to dismiss or, in the alternative, for a stay. The motion to dismiss was denied, but the stay was allowed "consistent with the court's ruling at [the] hearing on October 16, 2017."
As to the first summary judgment motion, HLO argued that the elements of a contract claim could not be established and, in the alternative, that the Simmonses could not prove any damages. The Simmonses opposed the motion on the ground that the CFA was an "amendment" to an earlier oral contract that was created when attorney McKenna "speaking for HLO" told them that HLO would "take care of all the costs and any expenses will be paid back only from the future settlement." They argued that their breach of contract claim was based on the earlier, oral agreement, not the CFA, and that -- in any event -- the CFA should be subject to close scrutiny and was void as a matter of law because its terms were not adequately explained by HLO before the Simmonses signed it. As to damages, the Simmonses argued that they were entitled to damages of the following types: (1) the costs and expenses associated with defending against the Suffolk Superior Court suit, (2) the value of the lost potential recovery in the Federal medical malpractice suit, and (3) "other physical and mental pain, anguish and suffering during this period." Alternatively, the Simmonses argued that HLO's motion for summary judgment should be denied because it was filed late or pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), because further discovery was required.
HLO disputed that attorney McKenna was associated with HLO at the time she first met with the Simmonses, and averred that she did not become associated with HLO until December 2009.
HLO's summary judgment motion on the Simmonses’ contract claim was allowed on the ground that the plaintiffs could not prove an essential element of their breach of contract claim: that they had suffered compensable damages. Specifically, the motion judge ruled that the "American rule" precluded recovery of fees and costs incurred in defending against Halstrom's contract claim in the Superior Court suit. The judge also concluded that, without an expert, the Simmonses were unable to establish the value of the medical malpractice suit. Finally, the judge concluded that the Simmonses were not entitled to emotional distress damages on their contract claim.
Thereafter, as noted above, HLO moved for summary judgment on the Simmonses’ c. 93A claim. Among other things, HLO argued that, having been allowed by a Federal judge, HLO's withdrawal from the medical malpractice suit could not be an unfair or deceptive act under c. 93A. HLO also argued that the Simmonses’ c. 93A demand letter did not identify the law firm's collection practices as a basis for their claim, nor did it assert emotional distress damages and, in the alternative, even if it did, they could not make out the claim. In addition, they argued that the c. 93A claim was essentially duplicative of the already-dismissed contract claim, and that the Simmonses’ own actions (i.e, failure to pay for the trial experts, despite their ability to do so) was the proximate cause of their damages.
On the same day that HLO served its second summary judgment motion, the Simmonses sent a new c. 93A demand letter, expanding the alleged bases for the claim to include violation of the G. L. c. 93, § 49, the Massachusetts Debt Collection Act. But the Simmonses then opposed the motion for summary judgment only on the following grounds: first, the motion was filed without adhering to the pre-filing conference requirement of Rule 9C of the Rules of the Superior Court; and second, the motion should be denied pursuant to rule 56 (f) because further discovery was necessary. For strategic reasons, the Simmonses did not initially oppose the motion on the merits.
The Simmonses appear to have later served a substantive opposition to the second motion for summary judgment. But this later opposition does not appear on the Superior Court docket. Nor did the Simmonses include it in the appellate record.
On March 20, 2019, the Simmonses filed a motion for leave to again amend the c. 93A claim against HLO. This amendment was designed to add the claims relating to the allegations added in their latest c. 93A demand letter. In particular, the Simmonses now claimed that HLO was acting as a debt collector and violated the Massachusetts Debt Collection Act and, as such, c. 93A as well. The docket does not reflect any formal action on the motion to amend. However, as we describe next, a fair reading of the judge's ruling on the second motion for summary judgment reflects that the judge considered the motion to be futile.
The second summary judgment motion was allowed on June 25, 2019, on the following grounds. First, the judge concluded that the Simmonses had not established damages for three reasons: (1) given their lack of expert evidence, they could not prove the value of the Federal medical malpractice claim; (2) any litigation costs incurred during phase 1 (prosecution of the contract claim against HLO) in the Suffolk Superior Court action did not arise from any action by HLO during the litigation; (3) there was no admissible evidence of emotional distress damages. In addition, the judge concluded that, to the extent based on HLO's recoupment efforts, the c. 93A claim must be dismissed because the October 2015 pre-suit demand letter did not identify those allegations. Alternatively, even considering the allegations of the subsequent demand letter, the judge concluded that there were no recoverable damages because Halstrom, not HLO, brought the Suffolk Superior Court action, and because the Simmonses had identified no harm caused by HLO's assignment to Halstrom, or the subsequent assignment back to HLO.
The Simmonses’ claim for litigation costs as c. 93A damages (as opposed to fees and costs that could be recovered under the fee-shifting provision of c. 93A, § 9) was limited to the costs incurred in phase 1, i.e., prosecuting their contract claim against HLO.
The docket shows that "summary judgment" entered that same day, but there is no docket entry showing that final judgment entered. This makes sense because the claims against HLO's insurer, although stayed, remained unresolved. See Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974) ("any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties"). The Simmonses did not move, pursuant to rule 54 (b), for entry of partial judgment with respect to the claims against HLO, nor did the court enter partial judgment under that rule or certify an appeal from partial judgment.
What does not make sense, in light of the pending claims against the insurer, is the court's notation stating that the case had been disposed of.
Although final judgment had not entered, the Simmonses nonetheless filed a rule 59 motion seeking to vacate or alter the "judgment" entered June 25, 2019. Because judgment had not in fact entered, rule 59 was not the proper mechanism by which to seek to undo the summary judgment orders. That effort, instead, should have been made via a motion for reconsideration. Similarly, given the absence of final judgment or certification pursuant to rule 54 (b), and given that their rule 59 motion had not yet been decided, the Simmonses’ notice of appeal filed on July 22, 2019, was premature and of no effect.
Without waiting for a ruling on their post-judgment motion, on July 22, 2019, the Simmonses’ filed a notice of appeal from the June 25, 2019 judgment and "associated rulings."
On August 2, 2019, the motion to vacate, alter, or amend judgment was denied. The Simmonses thereafter received leave from a single justice of this court to file a late notice of appeal from the denial of their rule 59 motion. That late notice of appeal was filed on January 23, 2020.
At no time has final judgment entered in the Suffolk Superior Court suit, nor have the claims against the insurer been adjudicated.
Meanwhile, on July 7, 2019, the Simmonses brought suit in Middlesex Superior Court against HLO and Halstrom, again asserting violation of G. L. c. 93A. Many of the allegations in this complaint repeated those made in the FAC filed in the Suffolk Superior Court suit. However, in addition, the Simmonses sought to recover for actions they had not identified until their third c. 93A demand letter, which was not sent until after HLO moved for summary judgment in the Suffolk action. Those allegations pertained to Halstrom's efforts to recoup fees and costs from the Simmonses. The Middlesex action was dismissed on the ground of issue preclusion or, in the alternative, that the claims should have been brought in the Suffolk Superior Court action, if that case remained pending because final judgment had not entered. The Simmonses timely filed a notice of appeal in the Middlesex suit.
Discussion. 1. No final judgment; rule 54 (b) . We begin by discussing the fact that the appeal from the Suffolk Superior Court action is not properly before us because no final judgment entered in that case, the claims against the insurer have not been resolved, and the Simmonses neither sought nor obtained certification under rule 54 (b) with respect to the disposition of their claims against HLO. On this basis, particularly given "the appellate courts’ ‘traditional abhorrence of piecemeal appellate review,’ " Long v. Wickett, 50 Mass. App. Ct. 380, 387 (2000), quoting Atkinson's Inc. v. Alcoholic Bevs. Control Commn., 15 Mass. App. Ct. 325, 327 (1983), we ordinarily would dismiss the appeal of the Suffolk Superior Court action. However, the timely appeal of the Middlesex County action turns, in large part, on examination of the claims in the Suffolk County action. For this reason, and considering that the case has already been litigated at great length below, and the issues are fully briefed here, we exercise our discretion to reach the merits of the appeal of the Suffolk Superior Court suit despite the procedural defect.
2. Effect of rulings and disposition of Federal malpractice suit. As noted above, a Federal judge allowed HLO's and Halstrom's motion to withdraw as Simmonses’ counsel, finding that their continued representation of the Simmonses was "not feasible." See Webster's Third New International Dictionary 1926 (2002) (meaning of feasible is "capable of being done or carried out"). Later, the Federal medical malpractice action was dismissed for lack of prosecution. The Simmonses did not appeal either ruling, and both accordingly became final.
The Simmonses have cited no authority to support the proposition that in these circumstances, the Federal rulings, or the findings supporting them, are open to collateral attack in the subsequent state actions. A proscribed collateral attack by a party on a prior judgment, order, or decree in an action between the same parties mirrors the "principles which also form the basis for the familiar doctrine of res judicata." Old Colony Trust Co. v. Porter, 324 Mass. 581, 586 (1949). "The term ‘res judicata’ describes doctrines by which a judgment has a binding effect in future actions. It comprises both claim preclusion (also known as ‘merger’ and ‘bar’) and issue preclusion (also known as ‘collateral estoppel’)." Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453, 456-457 (2006), quoting Jarosz v. Palmer, 436 Mass. 526, 530-531 n.3 (2002). The prohibition on collateral attacks prevents litigants from attempting to undermine one court's ruling in a different court. See Commonwealth v. Wallace, 431 Mass. 705, 707 (2000) ("defendant improperly challenge[d] the validity of the [Superior Court] injunction in his motion to dismiss the [District Court] contempt proceeding"; "[t]he proper method for challenging the injunction was either to exercise his statutory right to seek to modify or vacate the injunction"). See also Okoli v. Okoli, 81 Mass. App. Ct. 381, 384 (2012) (affirming Superior Court judge's dismissal of "the present complaint [alleging wife committed breaches of contract regarding promises concerning child support because it] was merely a collateral attack on the Probate and Family Court judgment [ordering husband to pay child support], and ... all claims were barred by collateral estoppel"). Collateral attacks, with limited exceptions, "substantially impair[ ]" "the finality of judgments." Cohen v. Cohen, 470 Mass. 708, 717 (2015), quoting Harker v. Holyoke, 390 Mass. 555, 558 (1983). See Harker, supra ("By attempting to relitigate in the Superior Court the same claim on which judgment had previously been entered in the Housing Court, the plaintiffs have challenged the Housing Court judgment collaterally. If we were to permit such an attack as a general rule, the finality of judgments would be substantially impaired. This would not be in the best interests of litigants or the public"). See also Wallace, supra (rule prohibiting collateral attack "applies even if a judge's order is erroneous").
Applying these principles to the instant case, we conclude that the Simmonses may not recover in this action damages they might have obtained in the Federal action they failed to prosecute, or from which they failed to appeal. In addition, given the judge's finding that HLO's continued representation of the Simmonses was not feasible (also something the Simmonses did not appeal), the filing of the motion to withdraw -- without some additional showing not present here -- does not constitute either a breach of contract or an unfair or deceptive practice in violation of c. 93A. See e.g., Schibel v. Eymann, 399 P.3d 1129, 1130 (Wash. 2017) ("[T]he fact of withdrawal by court order in an earlier proceeding is dispositive in a later malpractice suit against the attorney .... [A] client cannot relitigate whether the attorney's withdrawal was proper"); Bright v. Zega, 358 Ark. 82, 88 (2004) ("We are reluctant to hold that an authorized withdrawal from representing a client by a federal district judge constituted malpractice"). Accordingly, the first motion judge correctly dismissed the Simmonses’ contract claim against HLO, and the second motion judge correctly dismissed the Simmonses’ c. 93A claim against HLO to the extent it rested on HLO's withdrawal as counsel in the Federal malpractice action, or any supposed damages flowing therefrom, including the loss of having a chance to have their day in court.
We also note that HLO was permitted to seek to withdraw by the Massachusetts Rules of Professional Conduct. "[A] lawyer may withdraw from representing a client if ... withdrawal can be accomplished without material adverse effect on the interests of the client; ... the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; ... [or] the representation ... has been rendered unreasonably difficult by the client." Mass. R. Prof. C. 1.16 (b), as amended, 480 Mass. 1315 (2018). Comment 8 to rule 1.16 goes even further: "[a] lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs" (emphasis added).
As clarified and narrowed by the Simmonses’ counsel at oral argument, the contract claim against HLO is based on an alleged oral contract entered into by attorney McKenna which (according to the Simmonses) provided that "all the costs and any expenses will be paid back only from the future settlement." An additional basis upon which summary judgment could properly have been allowed as to this oral contract claim is that the Simmonses failed to raise a triable issue of fact that McKenna was employed by HLO at the time of the supposed contract, or that she had authority (actual or apparent) to act on behalf of HLO at that time.
To the extent the Simmonses argue in their brief that HLO breached the CFA, summary judgment was also properly allowed. The CFA allowed HLO to cease advancing funds to the Simmonses and to request reimbursement. At that point, the Simmonses's refusal to refund the amounts advanced precluded their claim that HLO breached the CFA. "[A] material breach by one party precludes it from demanding performance by the other." Central Ceilings, Inc. v. Suffolk Constr. Co., 91 Mass. App. Ct. 231, 237 (2017), citing Ward v. American Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100 (1983).
We also agree with both motion judges’ conclusion that, without expert testimony, the Simmonses were unable to establish the value of their medical malpractice claim and, hence, could not prove damages flowing from HLO's withdrawal as counsel. See Frullo v. Landenberger, 61 Mass. App. Ct. 814, 818 (2004).
3. Chapter 93A claim. In light of the above, what remains of the Simmonses’ c. 93A claim against HLO is based on HLO's "recoupment" actions. The Simmonses’ first theory is that assigning the claim for legal fees to Halstrom for collection without first obtaining the Simmonses’ consent and then having the claim assigned back when HLO discovered that the assignment was invalid, violated G. L. c. 93 (Unfair Debt Collection Practices Act) and also violated G. L. c. 93A. The Simmonses’ second theory is that, despite the fact that the litigation was brought in Halstrom's name alone, it was in fact HLO that was pursuing the debt and funding the litigation against the Simmonses. This second theory hinges on the Simmonses’ assertion that it was in fact HLO, and not Halstrom individually, that was "driving the bus" of the suit to recover fees from them. However, the Simmonses presented no factual record to support this theory because no admissible evidence on the point was contained in the Simmonses’ response to HLO's statement of undisputed facts. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 46 n.18 (2005) ; Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399 (2002). We thus set this second theory to the side; the judge did not err in allowing summary judgment on a theory for which there was no adequate factual support. See Rule 9A (b) (5) of the Rules of the Superior Court; Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974).
The Simmonses made this argument during the summary judgment hearing, but we do not know whether it was in fact made in their supplemental opposition papers because they did not place those papers into the appellate record. The argument was not made in the sole opposition paper they did provide in the appellate record.
We thus turn back to the Simmonses’ theory that HLO's assignment to Halstrom violated both G. L. c. 93 and G. L. c. 93A. As to c. 93, even viewing the facts in the light most favorable to the Simmonses, HLO was not acting as a "debt collector" as defined in G. L. c. 93, § 24, when it assigned its own claim to Halstrom, nor when it sent a demand letter to the Simmonses on its own behalf. See generally Dorrian v. LVNV Funding, LLC, 479 Mass. 265 (2018). Moreover, we agree with the motion judge that the Simmonses’ allegations that HLO violated G. L. c. 93 were not in the operative demand letter. Although the Simmonses sent a timely demand letter on October 26, 2015, more than thirty days before they made their c. 93A claim on December 21, 2015, that demand letter contained no reference to G. L. c. 93 or unfair debt collection practices. It was not until February 15, 2019 that the Simmons sent a demand letter which alleged -- even generally -- unfair debt collection practices. This demand letter, though, was sent only to Halstrom and the insurer -- not to HLO -- and, moreover, was sent nearly four years after the action commenced and after HLO had moved for summary judgment.
General Laws c. 93A, § 9 (3) requires that "[a]t least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent." The demand letter need not "set forth every specific statutory or regulatory violation alleged, so long as it fairly notifies the prospective respondent of the actions or practices" complained of" (citation omitted). Casavant v. Norwegian Cruise Line, Ltd., 460 Mass. 500, 505 (2011). The judge was not required to accept the Simmonses’ argument that the delay in sending an updated demand letter was excusable because the allegations depended on evidence obtained during discovery. As the trial judge noted, though, the Simmonses’ First Amended Complaint, filed in August 2017, contained similar allegations. The Simmons could have alleged unfair debt collection practices -- at least generally -- at least two years before the second demand letter. See Casavant, supra at 506. Thus, the only operative demand letter was the original October 2015 letter, which did not allege unfair debt collection practices. "A demand letter listing the specific deceptive practices claimed is a prerequisite to suit and as a special element must be alleged and proved." Hugenberger v. Alpha Mgmt. Corp., 83 Mass. App. Ct. 910, 911 (2013), quoting Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812, 813 (1975).
The claim that HLO's assignment without first obtaining the Simmonses’ consent violated c. 93A (regardless of whether it also violated c. 93) was introduced into the case by the Simmonses’ FAC, which a judge allowed to be filed over HLO's opposition. Although this claim was not included in the pre-suit c. 93A demand letter, HLO has pointed us to no authority requiring that a new c. 93A letter be sent before leave to amend an existing c. 93A claim may be allowed by the court. See Reddish v. Bowen, 66 Mass. App. Ct. 621, 631 (2006) (amendment of c. 93A claim did not deprive defendant of opportunity to frame reasonable settlement response to pre-suit demand letter). The purpose of the pre-suit demand letter is two-fold: first to encourage negotiation and settlement, second to operate as a control on damages that may ultimately be recovered. See Arsenault v. Bhattacharya, 89 Mass. App. Ct. 804, 810 (2016). HLO has not shown that either of these purposes is frustrated where, as here, it had an opportunity to respond to the initial pre-suit demand letter and choose not to seek to resolve the claim by way of settlement. Furthermore, we note that the FAC was filed more than one year before HLO moved for summary judgment on the c. 93A claim, which was more than adequate time to put HLO on notice of the amended bases for the claim and to respond by way of settlement or negotiation.
This new theory of c. 93A liability was based, at least in part, on the fact that Halstrom's contract claim against the Simmonses had been dismissed because he had no standing to pursue the claim as HLO had assigned it without first obtaining the Simmonses’ consent, contrary to Mass. R. Prof. C. 1.7, as appearing in 471 Mass. 1335 (2015).
We have thus considered whether HLO's assignment of the claim to Halstrom without first obtaining the Simmonses’ consent could by itself constitute an unfair or deceptive practice for purposes of c. 93A, regardless of whether it violated c. 93. At least for purposes of summary judgment, we think that it could. See Doucette v. Kwiat, 392 Mass. 915, 917-918 (1984) (attempt to obtain additional fees from client); Sears, Roebuck & Co. v. Goldstone & Sudalter, P.C., 128 F.3d 10, 16 (1997) (violations of rules governing legal profession are relevant in consumer protection violation determinations). Thus, on this limited portion of the Simmonses’ c. 93A claim, summary judgment was entered prematurely. However, we note that damages on this theory of liability are limited to legal fees incurred in defending against the contract claim brought by Halstrom, which we note was dismissed on December 22, 2016. " ‘If a c. 93A violation forces someone to incur legal fees and expenses that are not simply those incurred in vindicating that person's rights under the statute, those fees may be treated as actual damages in the same way as other losses of money or property.’ " Montanez v. 178 Lowell St. Operating Co., LLC, 95 Mass. App. Ct. 699, 703 (2019), quoting McLaughlin v. American States Ins. Co., 90 Mass. App. Ct. 22, 33 (2016). The summary judgment record does not support a claim for emotional distress damages. See Hershenow v. Enterprise Rent-A-Car Co. Of Boston, 445 Mass. 790, 798 (2006), citing Haddad v. Gonzalez, 410 Mass. 855, 865–866 (1991) (following 1979 amendment to G. L. c. 93A, § 9, severe emotional stress was cognizable loss with proof of causation).
The reassignment of the claim back to HLO is not an unfair or deceptive act; there is no dispute that the claim belonged to HLO.
4. Rule 56 (f) . We reject the Simmonses’ argument that summary judgment was premature because discovery had not yet been completed. The Simmonses did not specify which documents were allegedly unproduced or how they related to the motion for summary judgment. See Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 109 (2008). As to their argument that their Rule 37 motion to compel deposition testimony from Halstrom and Halstrom's daughter remained open, the judge accepted HLO's representation that the Simmonses’ counsel had caused any alleged delays by inquiring outside the scope of discovery and acting confrontationally during the deposition. See Matter of Roche, 381 Mass. 624, 636-637 (1980) ; Zaleskas v. Brigham and Women's Hosp., 97 Mass. App. Ct. 55, 72 (2020) (we review discovery rulings for abuse of discretion). As to the Simmonses’ argument that they had not received from HLO responses to their requests for admission, Mass. R. Civ. P. 36, 365 Mass. 795 (1974), that three different demand letters were "genuine" and that HLO received them, neither the genuineness nor the receipt of the letters was in dispute and the admissions were thus not material to the summary judgment motion.
Although the trial judge did not expressly decide the rule 36 motion, the "failure to rule on it prior to [summary judgment] was effectively a denial of the motion." Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 404 (2002).
5. Middlesex Superior Court action. Based on our resolution of the issues in the Suffolk Superior Court action, little needs to be said about the Middlesex Superior Court case. As to the limited portion of the Simmonses’ c. 93A claim we allow to go forward in the Suffolk Superior Court action, that claim cannot also be litigated in Middlesex Superior Court. It was accordingly properly dismissed. As to the remainder of the claims brought in the Middlesex action, they were properly dismissed on collateral estoppel grounds. See Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 693 (1974) (summary judgment can operate as binding adjudication on the merits of a case).
Conclusion. The summary judgment order of the Suffolk Superior Court entered June 25, 2019, on the Simmonses’ contract claim, is affirmed. The summary judgment order of the Suffolk Superior Court entered June 25, 2019, on the Simmonses’ c. 93A claim, is affirmed except with respect to the limited portion of the claim against HLO based on its assignment to Halstrom of the claim for fees and costs owed by the Simmonses. That aspect of the order is vacated. Damages for that claim are limited to reasonable attorneys’ fees and costs incurred in defending against Halstrom's contract claim. The order denying the Simmonses’ motion to vacate, alter, or amend judgment is affirmed. The matter is remanded to Suffolk Superior Court for further proceedings consistent with this memorandum and order. The judgment in the Middlesex Superior Court action is affirmed.
So ordered.
affirmed in part; vacated in part and remanded