Opinion
10-P-1446
01-23-2012
TIME TERMINALS INC. v. EGAN, FLANAGAN AND COHEN, P.C., & 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
The law firm of Egan, Flanagan and Cohen, P.C. (Egan Flanagan) served as trial counsel for Time Terminals Inc. (Time Terminals) in a property dispute that Time Terminals had with its neighbor, Eastern States Exposition (Eastern States). Time Terminals lost at trial in that litigation (underlying litigation). However, after a successful appeal to this court (in which it was represented by new counsel), see Time Terminals Inc. v. Eastern States Exposition, 58 Mass. App. Ct. 1110 (2003),
Time Terminals on remand secured a judgment that it had obtained a prescriptive easement in the disputed area. Time Terminals then brought the current malpractice action against Egan Flanagan and four of that firm's attorneys. A Superior Court judge (motion judge) ruled in Egan Flanagan's favor on summary judgment, concluding, as matter of law, that any injury suffered by Time Terminals was caused by judicial action, not attorney negligence. We affirm, albeit in part on different grounds.
As our own review of the docket in the underlying litigation reveals, the original trial record was not reopened on remand. Therefore, Time Terminals ultimately prevailed in its prescriptive easement claim based on the evidentiary record that Egan Flanagan created.
For the sake of simplicity, we will refer to the defendants collectively as Egan Flanagan, except where reference to individual attorneys is necessary.
Discussion. The misunderstanding regarding the motion to amend. In asserting malpractice, Time Terminals focuses principally on the fact that the lawyer who took over the underlying litigation just before trial misread an annotation that a judge (trial judge) had made (earlier in the proceedings) on Time Terminals's motion to amend its complaint. As a result, that attorney, Kevin D. Withers, mistakenly believed that the proposed amendment had been denied and that the complaint therefore did not expressly allege a claim for a prescriptive easement. Withers passed his misunderstanding along to the trial judge, who refused to entertain Time Terminals's claim of a prescriptive easement partly on this basis. Time Terminals succeeded in getting that ruling overturned on appeal, but it now seeks the costs it incurred in bringing that appeal as damages. We agree with the motion judge in the current case that even if Withers's error rose to the level of malpractice, Time Terminals as matter of law cannot demonstrate that such malpractice was a proximate cause of any harm that it suffered. See Coastal Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass. App. Ct. 55, 63 (2004), quoting from Shimer v. Foley, Hoag & Eliot LLP, 59 Mass. App. Ct. 302, 315 (2003) ('The payment of unnecessary legal fees and costs may 'constitute competent proof of damages purportedly resulting from the lawyer's alleged negligence,' but such legal fees must be proximately caused by the alleged act of malpractice').
Although Withers provided misinformation to the trial judge about the ruling on the motion to amend, he consistently took the position throughout the trial proceedings that whether the complaint spelled out a separate prescriptive easement count was ultimately beside the point, because a prescriptive easement claim was subsumed within the adverse possession claim that indisputably was presented. We endorsed that legal argument in the earlier appeal in determining that the trial judge should have reached the prescriptive easement claim. Thus, when the trial judge refused to consider Time Terminals's prescriptive easement claim, she had before her both the misinformation that Withers had provided and a valid legal argument as to why that misinformation in the end did not matter. Under these circumstances, Withers's factual misstatement cannot reasonably be said to have proximately caused the need for the appeal. In coming to this conclusion, we recognize that 'the issue of foreseeability is ordinarily a question of fact for the jury.' Bergendahl v. Massachusetts Elec. Co., 45 Mass. App. Ct. 715, 725 (1998). However, the case law also has long recognized that where the facts are essentially uncontested and admit of only one conclusion, '[t]he issue whether an attorney's negligence was a proximate cause of a client's loss may be resolved at the summary judgment stage.' Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010). See Fiduciary Trust Co. v. Bingham, Dana & Gould, 58 Mass. App. Ct. 245, 254 (2003) (upholding a decision on summary judgment that a bankruptcy proceeding, not attorney negligence, proximately caused client's harm).
We assume, without deciding, that it was reasonably foreseeable that the trial judge would accept as true Withers's representation (against his client's interests) that the motion to amend had been denied. We note, however, that the mistake could have been cleared up immediately and completely had counsel for Eastern States spoken up and corrected it.
See Brooks, Gill & Co. v. Landmark Properties, 23 Mass. App. Ct. 528, 531 n.1 (1987) (difference between claims for adverse possession and prescriptive easement is that '[i]t is unnecessary to prove either exclusive possession or assertion of a legal right to ownership of the property in order to establish a prescriptive easement').
Specifically, we concluded that a prescriptive easement 'claim is nested in a claim of adverse possession and therefore is tried almost of necessity whenever a claim of adverse possession is tried.' Time Terminals Inc. v. Eastern States Exposition, supra.
Moreover, there are particular reasons why it was appropriate here to resolve the causation issues as matter of law. Time Terminals does not allege that any negligence by Egan Flanagan affected the jury's assessment of the facts in the underlying action. Instead, the causation issues turn on whether the trial judge's failure to consider the prescriptive easement claim was reasonably foreseeable based on how an objectively reasonable judge would have applied the law to the facts found. That question is not one readily amenable to resolution by a jury based on testimony by expert witnesses. Instead, such questions fall more naturally to judges to resolve. Our analysis finds support in case law from other jurisdictions. See Cedeno v. Gumbiner, 347 Ill. App. 3d 169, 176 (2004); Crestwood Cove Apartments Bus. Trust v. Turner, 164 P.3d 1247, 1255-1256 (Utah 2007).
Time Terminals also suggests that Withers's misunderstanding harmed it in a different respect, by causing Egan Flanagan to abandon two other claims that were pleaded in the amended complaint, but not the original complaint. Count three, which was based on common law trespass, sought damages for the destruction of a fence in the disputed area. Count four, brought pursuant to G. L. c. 242, § 7, sought damages for the destruction of trees in the same area. Time Terminals cannot demonstrate that Egan Flanagan's failure to pursue these claims caused it any harm. Putting aside the question whether the destroyed fence and trees had any appreciable value, counts three and four could have succeeded only if Time Terminals had prevailed on its original adverse possession claim. Time Terminals does not argue that any negligence by Egan Flanagan caused it to lose the adverse possession claim (something that in any event turned on Time Terminals's inability to show that its use of the disputed area was 'exclusive'). Any malpractice claim based on the abandonment of those counts therefore fails as matter of law.
Common law trespass, the basis for count three, is an invasion of the plaintiff's interest in the exclusive possession of land. See Amaral v. Cuppels, 64 Mass. App. Ct. 85, 90-91 (2005). An easement is a nonpossessory right to enter and use land in possession of another, and thus cannot serve as the foundation for a trespass claim. See M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 92 (2004). Likewise, only the owner of the land at issue can bring a claim under G. L. c. 242, § 7, the basis of count four. That statute states in pertinent part: 'A person who without license willfully . . . destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor . . .' (emphasis supplied).
Failure to pursue damages for lost use. In the underlying litigation, Egan Flanagan did not pursue damages for Time Terminals's lost use of the disputed area after Eastern States barred such use (in derogation of the prescriptive easement rights Time Terminals was eventually able to establish). Time Terminals now alleges that this amounted to malpractice.
Time Terminals may have been barred from pursuing such relief in any event because, as it points out, damages for lost use or rent are arguably 'special damages' that must be (but were not) 'specifically stated' in the complaint. See Mass.R.Civ.P. 9(g), 365 Mass. 751 (1974). For present purposes, it is sufficient to note that Egan Flanagan failed to pursue a claim for lost use damages; we need not resolve at what precise point Egan Flanagan forwent such a claim.
In moving for summary judgment, Egan Flanagan argued, inter alia, that it made a conscious strategic choice not to pursue damages and that this was driven in part by its client's inability to provide documentary proof of injury. Egan Flanagan specifically pointed out that documenting such damages would have been difficult given that, during the relevant period, Time Terminals ran its parking business on a cash basis and kept few, if any, contemporaneous records. By raising such evidentiary challenges on summary judgment, Egan Flanagan called into question whether Time Terminals could demonstrate that there were any appreciable damages that Egan Flanagan failed to pursue, something that went both to the extent to which the claim was viable (and hence could serve to establish negligence) and to damages. This put the burden on Time Terminals to document that it could come forward with such proof. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) ('A complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial').
In response, Time Terminals submitted a report from a real estate appraiser who stated that lost parking revenues from 1996 to 2006 totaled approximately $104,000. There are a multitude of infirmities with this response. The report is not an affidavit; although it was incorporated into Time Terminals's answers to interrogatories, the appraiser (not a party) did not sign the interrogatories under the pains and penalties of perjury. See Mass.R.Civ.P. 33(a), as appearing in 436 Mass. 1401 (2002). Moreover, the report sets forth only summary conclusions. It does next to nothing to explain the factual basis on which the appraiser relied in coming to these conclusions, how the appraiser had personal knowledge of those underlying facts, and how any 'facts' set forth in the report would be admissible in evidence (nor is that self-evident). Compare Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). See Dupont v. Dracut, 41 Mass. App. Ct. 293, 297 (1996), quoting from Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 696 (1993) ('Bare assertions and conclusions . . . are not enough to withstand a well-pleaded motion for summary judgment'). Given that Egan Flanagan had specifically called into question Time Terminals's ability to document its lost revenues in the relevant period, the failure of the appraiser's report to lay out the facts on which the appraiser's conclusions are based is significant.
Time Terminals also sought to document that it suffered lost use revenues by pointing out that, in a contempt proceeding that followed the initial appeal, the trial judge had found that Time Terminals lost almost $8,500 in parking revenues in 2006. However, the mere fact that Time Terminals was able to show damages for a later period, without more, is not actually responsive to Egan Flanagan's questioning its ability to prove damages in the original trial (which occurred in 1999).
We need not reach Egan Flanagan's alternative argument that its decision not to pursue lost use damages constituted a reasonable professional judgment that cannot be subject to malpractice liability. See Meyer v. Wagner, 429 Mass. 410, 419 (2000) ('An attorney who exercises the requisite skill and care will be protected from liability for pursuing reasonable strategies that ultimately fail').
We also do not rest on the grounds specified by the motion judge. Apparently relying on her own recollection of what transpired in the underlying litigation a decade earlier, the motion judge was of the belief that she had issued a preliminary injunction barring Time Terminals from using the disputed area during the pendency of the case (a 'fact' that Egan Flanagan repeats in its appellate brief, without any citation to the docket). Based on that premise, she reasoned that it was her own ruling, not counsel's inaction, that had led to any damages Time Terminals suffered from lost use. In fact, there was no preliminary injunction in place preventing Time Terminals from using the disputed area (the judge had simply denied Time Terminals's request for a preliminary injunction). We also do not rest on the motion judge's assertion that a claim for lost use damages would have been 'futile' given the trial judge's (erroneous) understanding that such a claim was not before her.
Other claims of malpractice. We discern no merit in Time Terminals's other allegations of malpractice. One example will suffice. Time Terminals alleges that Egan Flanagan's failure to 'calendar' when an answer to the amended complaint was due prevented the firm from being able to consider moving for a default judgment. But even if this amounted to negligence, Time Terminals cannot show damages. Especially where Eastern States had answered the original complaint and was otherwise actively defending the case, any suggestion that a motion for a default judgment would have resulted in the case's termination in Time Terminals's favor (as opposed, say, to resulting in a late answer being allowed) is entirely speculative. See Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488, 493 (1959) (no recovery in tort where the damage is 'purely conjectural'). The remaining claims of malpractice are even slighter.
Claims other than malpractice. Time Terminals maintains that it alleged a number of other distinct claims against Egan Flanagan, including 'intentional misrepresentation, unfairness, deceit, breach of contract, and breach of fiduciary duty.' It argues that these additional claims both stand on their own and support a claim pursuant to G. L. c. 93A, § 11. In essence, Time Terminals asserts that Egan Flanagan knowingly exaggerated its credentials and made express promises, on which Time Terminals relied, about how it would handle the case. There is at least some doubt as to whether the amended complaint can fairly be read to assert such claims, and, in any event, some of the claims should have been pleaded with particularity (see Mass.R.Civ.P. 9 [b]). But even if such problems were excused, the claims would still fail as matter of law because Time Terminals again failed to make an adequate showing of how any such breaches caused it to be harmed. Thus, for example, even if we assumed that Egan Flanagan had provided Time Terminals lock tight assurances that its case would be staffed in a particular manner (a proposition that appears undercut by the parties' statement of undisputed material facts), Time Terminals failed to demonstrate how it may have been damaged by a breach of that promise. The motion judge properly rejected all such ancillary claims.
Time Terminals concedes that its c. 93A claim cannot be based on legal malpractice alone. See Meyer v. Wagner, supra at 423-424.
Judgment affirmed.
By the Court (Berry, Meade & Milkey, JJ.),